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416 U.S. 351
94 S.Ct. 1734
40 L.Ed.2d 189
Mel KAHN, Etc., Appellant,v.Robert L. SHEVIN et al.
No. 73—78.
Argued Feb. 25, 26, 1974.
Decided April 24, 1974.
Syllabus
A Florida statute grants widows an annual $500 property tax exemption. Appellant, a widower, was denied an exemption because the statute offers no analogous benefit for widowers. He then sought a declaratory judgment in county Circuit Court, which held the statute violative of the Equal Protection Clause of the Fourteenth Amendment. The Florida Supreme Court reversed, finding the classification 'widow' valid because it has a 'fair and substantial relation to the object of the legislation' of reducing 'the disparity between the economic capabilities of a man and a woman.' Held:
1. The challenged tax law is reasonably designed to further the state policy of cushioning the financial impact of spousal loss upon the sex for whom that loss imposes a disproportionately heavy burden. Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583, distinguished. P. 355.
2. A state tax law is not arbitrary although it 'discriminate(s) in favor of a certain class . . . if the discrimination is founded upon a reasonable distinction, or difference in state policy,' and the statute here is well within those limits. Pp. 355—356.
273 So.2d 72, affirmed.
Ruth Bader Ginsburg, New York City, for appellant.
Sydney H. McKenzie, III, Tallahassee, Fla., for appellees.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Since at least 1885, Florida has provided for some form of property tax exemption for widows.1 The current law granting all widows an annual $500 exemption, Fla.Stat. § 196.202 (Supp.1974 1975), F.S.A., has been essentially unchanged since 1941.2 Appellant Kahn is a widower who lives in Florida and applied for the exemption to the Date County Tax Assessor's Office. It was denied because the statute offers no analogous benefit for widowers. Kahn then sought a declaratory judgment in the Circuit Court for Dade County, Florida, and that court held the statute violative of the Equal Protection Clause of the Fourteenth Amendment because the classification 'widow' was based upon gender. The Florida Supreme Court reversed, finding the classification valid because it has a "fair and substantial relation to the object of the legislation,"3 that object being the reduction of 'the disparity between the economic capabilities of a man and a woman.' Kahn appealed here, 28 U.S.C. § 1257(2), and we noted probable jurisdiction, 414 U.S. 973, 94 S.Ct. 283, 38 L.Ed.2d 216. We affirmed.
2
There can be no dispute that the financial difficulties confronting the lone woman in Florida or in any other State exceed those facing the man. Whether from overt discrimination or from the socialization process of a male-dominated culture, the job market is inhospitable to the woman seeking any but the lowest paid jobs.4 There are, of course, efforts under way to remedy this situation. On the federal level, Title VII of the Civil Rights Act of 1964 prohibits covered employers and labor unions from discrimination on the basis of sex, 78 Stat. 253, 42 U.S.C. § 2000e—2(a), (c), as does the Equal Pay Act of 1963, 77 Stat. 56, 29 U.S.C. § 206(d). But firmly entrenched practices are resistant to such pressures, and, indeed, data compiled by the Women's Bureau of the United States Department of Labor show that in 1972 a woman working full time had a median income which was only 57.9% of the median for males—a figure actually six points lower than had been achieved in 1955.5 Other date point in the same direction.6 The disparity is likely to be exacerbated for the widow. While the widower can usually continue in the occupation which preceded his spouse's death, in many cases the widow will find herself suddenly forced into a job market with which she is unfamiliar, and in which, because of her former economic dependency, she will have fewer skills to offer.7
3
There can be no doubt, therefore, that Florida's differing treatment of widows and widowers "rest(s) upon some ground of difference having a fair and substantial relation to the object of the legislation." Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, quoting Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989.
4
This is not a case like Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583, where the Government denied its female employees both substantive and procedural benefits granted males 'solely . . . for administrative convenience.' Id., at 690, 93 S.Ct. at 1772 (emphasis in original).8 We deal here with a state tax law reasonably designed to further the state policy of cushioning the financial impact of spousal loss upon the sex for which that loss imposes a disproportionately heavy burden. We have long held that '(w)here taxation is concerned and no specific federal right, apart from equal protection, is imperilled, the States have large leeway in making classifications and drawing lines which in their judgment produce reasonable systems of taxation.' Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 359, 93 S.Ct. 1001, 1003, 35 L.Ed.2d 351. A state tax law is not arbitrary although it 'discriminate(s) in favor of a certain class . . . if the discrimination is founded upon a reasonable distinction, or difference in state policy,' not in conflict with the Federal Constitution. Allied Stores v. Bowers, 358 U.S. 522, 528, 79 S.Ct. 437, 441, 3 L.Ed.2d 480. This principle has weathered nearly a century of Supreme Court adjudication,9 and it applies here as well. The statute before us is well within those limits.10
5
Affirmed.
6
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting.
7
The Court rejects widower Kahn's claim of denial of equal protection on the ground that the limitation in Fla.Stat. § 196.191((7) (1971), F.S.A., which provides an annual $500 property tax exemption to widows, is a legislative classification that bears a fair and substantial relation to 'the state policy of cushioning the financial impact of spousal loss upon the sex for which that loss imposes a disproportionately heavy burden.' Ante, at 355. In my view, however, a legislative classification that distinguishes potential beneficiaries solely by reference to their gender-based status as widows or widowers, like classifications based upon race,1 alienage,2 and national origin,3 must be subjected to close judicial scrutiny, because it focuses upon generally immutable characteristics over which individuals have little or no control, and also because gender-based classifications too often have been inexcusably utilized to stereotype and stigmatize politically powerless segments of society. See Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764 (1973). The Court is not, therefore, free to sustain the statute on the ground that it rationally promotes legitimate governmental interests; rather, such suspect classifications can be sustained only when the State bears the burden of demonstrating that the challenged legislation serves overriding or compelling interests that cannot be achieved either by a more carefully tailored legislative classification or by the use of feasible, less drastic means. While, in my view, the statute serves a compelling governmental interest by 'cushioning the financial impact of spousal loss upon the sex for which that loss imposes a disproportionately heavy burden,' I think that the statute is invalid because the State's interest can be served equally well by a more narrowly drafted statute.
8
Gender-based classifications cannot be sustained merely because they promote legitimate governmental interests, such as efficacious administration of government. Frontiero v. Richardson, supra, Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251 (1971). For '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.' Frontiero v. Richardson, supra, 411 U.S., at 690, 93 S.Ct. at 1772. But Florida's justification of § 196.191(7) is not that it serves administrative convenience or helps to preserve the public fisc. Rather, the asserted justification is that § 196.191(7) is an affirmative step toward alleviating the effects of past economic discrimination against women.4
9
I agree that, in providing special benefits for a needy segment of society long the victim of purposeful discrimination and neglect, the statute serves the compelling state interest of achieving equality for such groups.5 No one familiar with this country's history of pervasive sex discrimination against women6 can doubt the need for remedial measures to correct the resulting economic imbalances. Indeed, the extent of the economic disparity between men and women is dramatized by the date cited by the Court, ante, at 353—354. By providing a property tax exemption for widows, § 196.01(7) assists in reducing that economic disparity for a class of women particularly disadvantaged by the legacy of economic discrimination.7 In that circumstance, the purpose and effect of the suspect classification are ameliorative; the statute neither stigmatizes nor denigrates widowers not also benefited by the legislation. Moreover, inclusion of needy widowers within the class of beneficiaries would not further the State's overriding interest in remedying the economic effects of past sex discrimination for needy victims of that discrimination. While doubtless some widowers are in financial need, no one suggests that such need results from sex discrimination as in the case of widows.
10
The statute nevertheless fails to satisfy the requirements of equal protection, since the State has not borne its burden of proving that its compelling interest could not be achieved by a more precisely tailored statute or by use of feasible, less drastic means. Section 196.191(7) is plainly overinclusive, for the $500 property tax exemption may be obtained by a financially independent heiress as well as by an unemployed widow with dependent children. The State has offered nothing to explain why inclusion of widows of substantial economic means was necessary to advance the State's interest in ameliorating the effects of past economic discrimination against women.
11
Moreover, alternative means of classification, narrowing the class of widow beneficiaries, appear readily available. The exemption is granted only to widows who complete and file with the tax assessor a form application establishing their status as widows. By merely redrafting that form to exclude widows who earn annual incomes, or possess assets, in excess of specified amounts, the State could readily narrow the class of beneficiaries to those widows for whom the effects of past economic discrimination against women have been a practical reality.
12
Mr. Justice WHITE, dissenting.
13
The Florida tax exemption at issue here is available to all widows but not to widowers. The presumption is that all widows are financially more needy and less trained or less ready for the job market than men. It may be that most widows have been occupied as housewife, mother, and homemaker and are not immediately prepared for employment. But there are many rich widows who need no largess from the State; many others are highly trained and have held lucrative positions long before the death of their husbands. At the same time, there are many widowers who are needy and who are in more desperate financial straits and have less access to the job market than many widows. Yet none of them qualifies for the exemption.
14
I find the discrimination invidious and violative of the Equal Protection Clause. There is merit in giving poor widows a tax break, but gender-based classifications are suspect and require more justification than the State has offered.
15
I perceive no purpose served by the exemption other than to alleviate current economic necessity, but the State extends the exemption to widows who do not need the help and denies it to widowers who do. It may be administratively inconvenient to make individual determinations of entitlement and to extend the exemption to needy men as well as needy women, but administrative efficiency is not an adequate justification for discriminations based purely on sex. Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764 (1973); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251 (1971).
16
It may be suggested that the State is entitled to prefer widows over widowers because their assumed need is rooted in past and present economic discrimination against women. But this is not a credible explanation of Florida's tax exemption; for if the State's purpose was to compensate for past discrimination against females, surely it would not have limited the exemption to women who are widows. Moreover, even if past discrimination is considered to be the criterion for current tax exemption, the State nevertheless ignores all those widowers who have felt the effects of economic discrimination, whether as a member of a racial group or as one of the many who cannot escape the cycle of poverty. It seems to me that the State in this case is merely conferring an economic benefit in the form of a tax exemption and has not adequately explained why women should be treated differently from men.
17
I dissent.
1
Article IX, § 9, of the 1885 Florida Constitution provided that: 'There shall be exempt from taxation property to the value of two hundred dollars to every widow that has a family dependent on her for support, and to every person that has lost a limb or been disabled in war or by misfortune.'
2
In 1941 Fla.Stat. § 192.06(7) exempted '(p)roperty to the value of five hundred dollars to every widow . . ..' That provision has survived a variety of minor changes and renumbering in substantially the same form, including Fla.Stat. § 196.191(7) (1971) under which appellant was denied the exemption. Currently Fla.Stat. § 196.202 provides: 'Property to the value of five hundred dollars ($500) of every widow, blind person, or totally and permanently disabled person who is a bona fide resident of this state shall be exempt from taxation.'
3
Quoting Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225.
4
In 1970 while 40% of males in the work force earned over $10,000, and 70% over $7,000, 45% of women working full time earned less than $5,000, and 73.9% earned less than $7,000. U.S. Bureau of the Census: Current Population Reports, Series P—60, No. 80.
5
The Women's Bureau provides the following data:
Women's
median
earnings
Median earnings as percent
Year Women Men of men's
1972........................... $5,903 $10,202 57.9
1971............................ 5,593 9,399 59.5
1970............................ 5,323 8,966 59.4
1969............................ 4,977 8,227 60.5
1968............................ 4,457 7,664 58.2
1967............................ 4,150 7,182 57.8
1966............................ 3,973 6,848 58.0
1965............................ 3,823 6,375 60.0
1964............................ 3,690 6,195 59.6
1963............................ 3,561 5,978 59.6
1962............................ 3,446 5,794 59.5
1961............................ 3,351 5,644 59.4
1960............................ 3,293 5,417 60.8
1959............................ 3,193 5,209 61.3
1958............................ 3,102 4,927 63.0
1957 ........................... 3,008 4,713 63.8
1956 ........................... 2,827 4,466 63.3
1955............................ 2,719 4,252 63.9
6
For example, in 1972 the median income of women with four years of college was $8,736—exactly $100 more than the median income of men who had never even completed one year of high school. Of those employed as managers or administrators, the women's median income was only 53.2% of the men's, and in the professional and technical occupations the figure was 67.5%. Thus the disparity extends even to women occupying jobs usually thought of as well paid. Tables prepared by the Women's Bureau, Employment Standards Administration, U.S. Department of Labor.
7
It is still the case that in the majority of families where both spouses are present, the woman is not employed. A. Ferriss, Indicators of Trends in the Status of American Women 95 (1971).
8
And in Frontiero the plurality opinion also noted that the statutes there were 'not in any sense designed to rectify the effects of past discrimination against women. 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.' 411 U.S., at 689 n. 22, 93 S.Ct., at 1771 (citations omitted).
9
See Bell's Gap R. Co. v. Pennsylvania, 134 U.S. 232, 237, 10 S.Ct. 533, 535, 33 L.Ed. 892; Madden v. Kentucky, 309 U.S. 83, 87—88, 60 S.Ct. 406, 407—408, 84 L.Ed. 590; Lawrence v. State Tax Comm'n, 286 U.S. 276, 52 S.Ct. 556, 76 L.Ed. 1102; Royster Guano Co. v. Virginia, 253 U.S. 412, 40 S.Ct. 560.
10
The dissents argue that the Florida Legislature could have drafted the statute differently, so that its purpose would have been accomplished more precisely. But the issue, of course, is not whether the statute could have been drafted more wisely, but whether the lines chosen by the Florida Legislature are within constitutional limitations. The dissents would use the Equal Protection Clause as a vehicle for reinstating notions of substantive due process that have been repudiated. 'We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, which are elected to pass laws.' Ferguson v. Skrupa, 372 U.S. 726, 730, 83 S.Ct. 1028, 1031, 10 L.Ed.2d 93.
Gender has never been rejected as an impermissible classification in all instances. Congress has not so far drafted women into the Armed Services. 50 U.S.C. App. § 454. The famous Brandeis Brief in Muller v. Oregon, 208 U.S. 412, 28 S.Ct. 324, 52 L.Ed. 551, on which the Court specifically relied, id., at 419 420, 28 S.Ct. at 325—326, emphasized that the special physical structure of women has a bearing on the 'conditions under which she should be permitted to toil.' Id., at 420, 28 S.Ct. at 326. These instances are pertinent to the problem in the tax field which is presented by this present case. Mr. Chief Justice Hughes in speaking for the Court said:
'The States in the exercise of their taxing power, as with respect to the exertion of other powers, are subject to the requirements of the due process and the equal protection clauses of the Fourteenth Amendment, but that Amendment imposes no iron rule of equality, prohibiting the flexibility and variety that are appropriate to schemes of taxation. . . . In levying such taxes, the State is not required to resort to close distinctions or to maintain a precise, scientific uniformity with reference to composition, use, or value. To hold otherwise would be to subject the essential taxing power of the State to an intolerable supervision, hostile to the basic principles of our government and wholly beyond the protection which the general clause of the Fourteenth Amendment was intended to assure.' Ohio Oil Co. v. Conway, 281 U.S. 146, 159, 50 S.Ct. 310, 314, 74 L.Ed. 775.
1
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, 288, 13 L.Ed.2d 222 (1964); Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954).
2
See Graham v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534 (1971).
3
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).
4
Brief for Appellees 24—25; Tr. of Oral Arg. 29—31. The State's argument is supported by the Florida Supreme Court which held that the object of § 196.191(7) was to help "reduce the disparity between the economic . . . capabilities of a man and a woman . . .." 273 So.2d 72, 73 (1973).
5
Significantly, the Florida statute does not compel the beneficiaries to accept the State's aid. The taxpayer must file for the tax exemption. This case, therefore, does not require resolution of the more difficult questions raised by remedial legislation which makes special treatment mandatory. See Note, Development in the Law—Equal Protection, 82 Harv.L.Rev. 1065, 1113 1117 (1969).
6
See Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764 (1973); Sail'er Inn, Inc. v. Kirby, 5 Cal.3d 1, 95 Cal.Rptr. 329, 485 P.2d 529 (1971). See generally The President's Task Force on Women's Rights and Responsibilities, A Matter of Simple Justice (1971); L. Kanowitz, Women and the Law: The Unfinished Revolution (1969).
7
As noted by the Court, ante, at 353—354: '(D)ata compiled by the Women's Bureau of the United States Department of Labor show that in 1972 women working full time had a median income which was only 57.9% of the median for males—a figure actually six points lower than had been achieved in 1955 . . .. The disparity is likely to be exacerbated for the widow. While the widower can usually continue in the occupation which preceded his spouse's death, in many cases the widow will find herself suddenly forced into a job market with which she is unfamiliar, and in which, because of her former economic dependency, she will have fewer skills to offer.' (Footnotes omitted.)
| 12
|
416 U.S. 363
94 S.Ct. 1723.
40 L.Ed.2d 198
Dave PERNELL, Petitioner,v.SOUTHALL REALTY.
No. 72—6041.
Argued Feb. 19, 1974.
Decided April 24, 1974.
Syllabus
Since the right to recover possession of real property was a right ascertained and protected at common law, the Seventh Amendment of the Constitution entitles either party to demand a jury trial in an action to recover possession of real property in the Superior Court for the District of Columbia under § 16—1501 of the District of Columbia Code. Pp. 369—385.
294 A.2d 490, reversed and remanded.
Norman C. Barnett, Washington, D.C., for petitioner.
Herman Miller, Washington, D.C., for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
The question presented in this case is whether the Seventh Amendment guarantees the right to trial by jury in an action brought in the District of Columbia for the recovery of possession of real property. In May 1971, petitioner, Dave Pernell, entered into a lease agreement with respondent, Southall Realty, for the rental of a house in the District of Columbia. In July 1971, Southall filed a complaint in the Superior Court for the District of Columbia seeking to evict Pernell from the premises for alleged nonpayment of rent. Suit was brought under D.C.Code §§ 16—1501 through 16—1505, which establish a procedure for the recovery of possession of real property. In his answer, Pernell denied that rent was owing, asserted that Southall maintained the premises in an unsafe, unhealthy, and unsanitary condition in violation of the housing regulations of the District of Columbia,1 and alleged that Southall breached an agreement to waive several months' rent in exchange for Pernell's making certain improvements on the property. Pernell also claimed a setoff of $389.60 for repairs made to bring the premises into partial compliance with the District's housing regulations and a counterclaim of $75 for back rent paid.
2
In his answer, Pernell also requested a trial by jury. The trial judge, however, struck the jury demand, tried the case himself, and entered judgment for Southall. Pernell appealed to the District of Columbia Court of Appeals, claiming that the Seventh Amendment guaranteed the right to trial by jury in all cases brought under § 16—1501 and, alternatively, that he was entitled to a jury trial in this case by virtue of the counterclaim and setoff specified in his answer. The Court of Appeals affirmed, 294 A.2d 490 (1972), holding that jury trials are not guaranteed by the Seventh Amendment in landlord-tenant cases predicated on nonpayment of rent or some other breach of the lease where the only remedy sought is repossession of the rented premises. Id., at 496. The court also held that if Pernell wished to litigate his counterclaim for damages before a jury, he should have instituted a separate action rather than raise the counterclaim in the landlord's action for repossession. Id., at 498.
3
Because of the novel nature of the Seventh Amendment question, we granted certiorari. 411 U.S. 915, 93 S.Ct. 1556, 36 L.Ed.2d 306 (1973). We reverse.
4
* Although the statutory cause of action now codified in § 16 1501 dates back to 1864,2 it was unnecessary until recently for any court to pass upon the Seventh Amendment question now before us. Prior to 1970, D.C.Code § 13—702 preserved the right to jury trial '(w)hen the amount of controversy in a civil action . . . exceeds $20, and in all actions for the recovery of possession of real property . . ..' See, e.g., Kass v. Baskin, 82 U.S.App.D.C. 385, 164 F.2d 513 (1947). The matter now appears in a different light, however, since § 13—702 was repealed by the District of Columbia Court Reform and Criminal Procedure Act of 1970. See Pub.L. 91—358, § 142(5)(A), 84 Stat. 552.
5
We are met at the outset by the suggestion that, notwithstanding the repeal of § 13—702, it might still be possible to interpret the relevant statutes as providing for a right to jury trial. It is, of course, a "cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the (constitutional) 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).
6
The Court of Appeals recognized that 'Congress did not make clear what it intended by the repeal of this section.' 294 A.2d, at 491. Although the legislative history on this question is meager, an argument can be made that Congress in 1970 harbored no intent to do away with jury trials, but rather repealed § 13—702 as a housekeeping measure in the belief that jury trials would continue to be afforded in all cases previously covered by that section, including actions for the recovery of possession of real property.3 The Court of Appeals, however, appears to have been of the view that, regardless of congressional intent, it was no longer possible to interpret the relevant statutes as providing a right to jury trial in light of the outright repeal of § 13—702. In its view, after 1970 the right to jury trial had to stand on constitutional ground if it were to stand at all. We find ourselves bound by that Court's analysis of the effect of the 1970 Act in the circumstances of this case.
7
This Court has long expressed its reluctance to review decisions of the courts of the District involving matters of peculiarly local concern, absent a constitutional claim or a problem of general federal law of nationwide application. See, e.g., Griffin v. United States, 336 U.S. 704, 717—718, 69 S.Ct. 814, 820—821, 93 L.Ed. 993 (1949); Fisher v. United States, 328 U.S. 463, 476, 66 S.Ct. 1318, 1324, 90 L.Ed. 1382 (1946). See also miller v. United States, 357 U.S. 301, 306, 78 S.Ct. 1190, 1194, 2 L.Ed.2d 1332 (1958). In the past, this reluctance has typically been expressed with regard to positions taken by the courts of the District on common-law questions of evidence and substantive criminal law. But in view of the restructuring of the District's court system accomplished by the Court Reform Act in 1970, we believe the same deference is owed the courts of the District with respect to their interpretation of Acts of Congress directed toward the local jurisdiction.
8
One of the primary purposes of the Court Reform Act was to restructure the District's court system so that 'the District will have a court system comparable to those of the states and other large municipalities.' H.R.Rep.No. 91—907, p. 23 (1970). Prior to 1970, the District's local courts and the United States District Court and Court of Appeals for the District of Columbia Circuit, unlike their counterparts in the several States, shared a complex and often confusing form of concurrent jurisdiction, with local-law matters often litigated in the United States District Court and decisions of the District of Columbia Court of Appeals reviewable in the United States Court of Appeals for the District of Columbia Circuit. See generally ibid.
9
The 1970 Act made fundamental changes in this structure. The District of Columbia Court of Appeals was made the highest court of the District, 'similar to a state Supreme Court,' and its judgments made reviewable by this Court in the same manner that we review judgments of the highest courts of the several States. See ibid. See also Pub.L. 91—358, § 111, 84 Stat. 475, codified at D.C.Code § 11—102; § 172(a)(1), 84 Stat. 590, amending 28 U.S.C. § 1257. The respective jurisdictions of the newly created Superior Court of the District of Columbia and of the United States District Court for the District of Columbia were adjusted so as to 'result in a Federal-State court system in the District of Columbia analogous to court systems in the serveral States.' H.R.Rep. No. 91—907, supra, at 35.
10
This new structure plainly contemplates that the decisions of the District of Columbia Court of Appeals on matters of local law both common law and statutory law—will be treated by this Court in a manner similar to the way in which we treat decisions of the highest court of a State on questions of state law.4 Congressional Acts directed toward the District, like other federal laws, admittedly come within this Court's Art. III jurisdiction, and we are therefore not barred from reviewing the interpretations of those Acts by the District of Columbia Court of Appeals in the same jurisdictional sense that we are barred from reconsidering a state court's interpretation of a state statute. See, e.g., O'Brien v. Skinner, 414 U.S. 524, 531, 94 S.Ct. 740, 743—744, 38 L.Ed.2d 702 (1974); Memorial Hospital v. Maricopa County, 415 U.S. 250, 256, 94 S.Ct. 1076, 1081, 39 L.Ed.2d 306 (1974). But the new court structure certainly lends additional support to our longstanding practice of not overruling the courts of the District on local law matters 'save in exceptional situations where egregious error has been committed.' Fisher v. United States, 328 U.S., at 476, 66 S.Ct., at 1325; Griffin v. United States, 336 U.S., at 718, 69 S.Ct., at 820. This principle, long embedded in practice and now supported by the clear intent of Congress in enacting the 1970 Court Reform Act, must serve as our guide in the present case. As no such obvious error was committed here, we must accept the Court of Appeals' conclusion that the right to jury trial must stand or fall on constitutional ground after the repeal of § 13—702. Accordingly, it is to the Seventh Amendment issue that we now turn.
II
11
District of Columbia Code § 16—1501 provides a remedy '(w)hen a person detains possession of real property without right, or after his right to possession has ceased . . ..' The statute is not limited to situations where a landlord seeks to evict a tenant, but may be invoked by any 'person aggrieved' by a wrongful detention of property. Ibid. See also infra, at 379. Under the statute, when a verified complaint is filed by the person aggrieved by the detention, the Superior Court of the District of Columbia may issue a summons to the defendant to appear and show cause why judgment should not be given against him for the restitution of possession. This summons must be served seven days before the day fixed for the trial of the action. § 16—1502. If, after the trial, it appears that the plaintiff is entitled to possession, judgment and execution for possession shall be awarded in his favor with costs. If, on the other hand, the plaintiff nonsuits or fails to prove his case, the defendant shall have judgment and execution for his costs. See § 16—1503.
12
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 . . ..' Like other provisions of the Bill of Rights, it is fully applicable to courts established by Congress in the District of Clumbia. See Capital Traction Co. v. Hof, 174 U.S. 1, 5, 19 S.Ct. 580, 582, 43 L.Ed. 873 (1899).
13
This Court has long assumed that actions to recover land, like actions for damages to a person or property, are actions at law triable to a jury. In Whitehead v. Shattuck, 138 U.S. 146, 151, 11 S.Ct. 277, 34 L.Ed. 873 (1891), for example, we recognized that
14
'(i)t would be difficult, and perhaps impossible, to state any general rule which would determine in all cases what should be deemed a suit in equity as distinguished from an action at law . . .; but this may be said, that where an action is simply for the recovery and possession of specific, real, or personal property, or for the recovery of a money judgment, the action is one at law.'
15
See also Scott v. Neely, 140 U.S. 106, 110, 11 S.Ct. 712, 714, 35 L.Ed. 358 (1891); Ross v. Bernhard, 396 U.S. 531, 533, 90 S.Ct. 733, 735, 24 L.Ed.2d 729 (1970).
16
Respondent suggests, however, that these precedents should be limited to actions to recover property where title is in issue and that actions brought under § 16—1501 should be distinguished as actions for the recovery of possession where claims of title are irrelevant.5 The distinction between title to and possession of property, of course, was well recognized at common law. See Grant Timber & Mfg. Co. v. Gray, 236 U.S. 133, 134, 35 S.Ct. 279, 59 L.Ed. 501 (1915). But however relevant it was for certain purposes, it had no bearing on the right to a jury trial. The various forms of action which the common law developed for the recovery of possession of real property were also actions at law in which trial by jury was afforded.
17
Over the course of its history, the common law developed several possessory actions. Among the earliest of these was the assize of novel disseisin which developed in the latter half of the 12th century and permitted one who had been recently disseised of his tenement to be put back into seisin by judgment of the King's court.6 Trial by assize represented one of the earliest forms of trial by jury. After the plaintiff lodged his complaint, a writ would issue bidding the sheriff to summon 12 good and lawful men of the neighborhood to 'recognize' before the King's justices7 whether the defendant had unjustly disseised the plaintiff of his tenement.8 Like the modern cause of action embodied in § 16—1501, novel disseisin was a summary procedure designed to mete out prompt justice in possessory disputes.9
18
Writs of entry, dating from about the same period, were developed to encompass situations not covered by the assize of novel disseisin. Novel disseisin, for example, was applicable only where the defendant gained possession wrongfully by putting the plaintiff out of seisin. Writs of entry, in contrast, permitted recovery where the defendant entered into possession lawfully but no longer had rightful possession.10 Indeed, one of the writs of entry, the writ of entry ad terminum qui praeterit, could be used by a plaintiff to recover lands from a defendant who had originally held them for a term of years, which term had expired.11 The writ, in other words, embodied a cause of action quite similar to that encompassed in § 16—1501. Significantly for present purposes, it is clear that either party could demand a jury trial.12
19
Both of these forms of action, though not legally abolished until will into the 19th century,13 had fallen into disuse by the time our Constitution was drafted. By then, ejectment had become the most important possessory action. Ejectment originated as a very narrow remedy, designed to give the lessee of property a cause of action against anyone who ejected him, including his lessor.14 But by a variety of intricate fictions, ejectment eventually developed into the primary means of trying either the title to or the right to possession of real property.15
20
In particular, ejectment became the principal means employed by landlords to evict tenants for overstaying the terms of their leases, nonpayment of rent, or other breach of lease covenants.16 Had Southall Realty leased a home in London in 1791 instead of one in the District of Columbia in 1971, it no doubt would have used ejectment to seek to remove its allegedly defaulting tenant. And, as all parties here concede, questions of fact arising in an ejectment action were resolved by a jury.17
21
Notwithstanding this history, the Court of Appeals reasoned that an action under § 16—1501 was not the 'equivalent' of an action of ejectment. 294 A.2d, at 492. It noted that another section of the D.C.Code sets forth a more specific action of ejectment.18 Moreover, the expedited character of a § 16—1501 proceeding was seen as contrasting sharply with the archaic limitations and cumbersome procedures that marked the common-law action of ejectment. Ibid. Since, in its opinion, neither § 16 1501 nor its equivalent existed at common law, the Court of Appeals held that the Seventh Amendment did not guarantee the right to jury trial.
22
In our view, this analysis is fundamentally at odds with the test we have formulated for resolving Seventh Amendment questions. We recently had occasion to note that while 'the thrust of the Amendment was to preserve the right to jury trial as it existed in 1791, it has long been settled that the right extends beyond the common-law forms of action recognized at that time.' Curtis v. Loether, 415 U.S. 189, 193, 94 S.Ct. 1005, 1007, 39 L.Ed.2d 260 (1974). The phrase 'suits at common law' includes not only suits
23
'which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contra-distinction to those where equitable rights alone were recognized, and equitable remedies were administered . . .. In a just sense, the amendment then may well be construed to embrace all suits which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights.' Parsons v. Bedford, 3 Pet. 433, 447, 7 L.Ed. 732 (1830) (emphasis in original).
24
Whether or not a close equivalent to § 16—1501 existed in England in 1791 is irrelevant for Seventh Amendment purposes, for that Amendment requires trial by jury in actions unheard of at common law, provided that the action involves rights and remedies of the sort traditionally enforced in an action at law, rather than in an action in equity or admiralty. See Curtis v. Loether, supra, at 195, 94 S.Ct., at 1009.
25
The proceeding established by § 16—1501, while a far cry in detail from the common-law action of ejectment, serves the same essential function—to permit the plaintiff to evict one who is wrongfully detaining possession and to regain possession himself. As one commentator has noted, while statutes such as § 16—1501 were 'unknown to the common law . . . (t)hey are designed as statutes for relief, not to create new causes of action. The evident intention is to give this summary relief in those cases where . . . the action of ejectment would lie.'19 Indeed, the courts of the District themselves have frequently characterized the action created in § 16—1501 as a 'substitute' for an ejectment action.20 Moreover, it appears that every action recognized in 1791 for the recovery of possession of property carried with it the right to jury trial. Neither respondent nor the Court of Appeals was able to point to any equitable action even remotely resembling § 16—1501. Since the right to recover possession of real property governed by § 16—1501 was a right ascertained and protected by courts at common law, the Seventh Amendment preserves to either party the right to trial by jury.
III
26
Respondent argues, however, that the closest historical analogue to § 16—1501 was neither an action at law nor an action in equity, but rather a forcible entry and detainer statute enacted in the reign of Henry VI. See 8 Hen. 6, c. 9 (1429). That statute made it unlawful to 'make any forcible Entry in Lands and Tenements, or other Possessions, or them hold forcibly.' § II. Justices of the peace were directed to enforce its provisions. If complaint were made, they were to inquire into the matter and any persons found holding a place forcibly were to 'be taken and put in the next Gaol, there to remain convict by the Record of the same Justices or Justice, until they have made Fine and Ransom to the King.' § I. The justices of the peace were also empowered 'to reseize the Lands and Tenements so entered or holden as afore, and shall put the Party so put out in full Possession of the same Lands and Tenements. . . .' § III.
27
While respondent's argument is lent some support by the fact that § 16—1501 is presently captioned 'Forcible Entry and Detainer,' closer examination of the pertinement history reveals that respondent has misconstrued the actual relationship between the two statutes.
28
The first predecessor of § 16—1501 was the Act of July 4, 1864, c. 243, 13 Stat. 383.21 That Act provided a remedy for three separate situations: 'when forcible entry is made'; 'when a peaceable entry is made and the possession unlawfully held by force'; and 'when possession is held without right, after the estate is determined by the terms of the lease by its own limitation, or by notice to quit, or otherwise. . . .' See id., § 2.
29
There is no question but that the first two of these remedies for forcible entry or for peaceable entry followed by possession unlawfully held by force—can be traced directly to the statute of Henry VI.22 The English statute, however, had no provision like that in the 1864 Act specifically designed for landlordtenant disputes.
30
In 1953, Congress amended the 1864 Act and did away entirely with the provisions relating to forcible entry and peaceable entry with possession unlawfully held by force which can be traced to the English statute. See Act of June 18, 1953, c. 130, 67 Stat. 66. In its place, Congress enacted a general provision dealing with unlawful detention of property which could be invoked, like § 16—1501 today, '(w)henever any person shall detain possession of real property without right, or after his right to possession shall have ceased. . . .' Ibid.
31
Not only is the historical nexus between the two statutes weak, it is also evident that the English forcible entry and detainer statute and § 16—1501 serve totally different functions. While the English statute provided for the restitution of possession in appropriate cases, it was essentially a criminal provision, prosecuted through the usual criminal process.23 The gravamen of the offense was the use of violence in obtaining or detaining possession.24 The question in an action brought under the English statute was not who had the better right to possession. If one with the better right used force to oust another, he could be made to relinquish possession to the party he ousted and would be remitted to seeking legal process to obtain his rightful possession. As Blackstone states, there was no 'inquiring into the merits of the title: for the force is the only thing to be tried, punished, and remedied. . . .'25
32
In contrast, § 16—1501 is not a criminal action intended to redress the use of force, but rather was designed as a general civil remedy to determine which of two parties has the better legal right to possession of real estate. And, in this respect, § 16—1501 is not limited, as was the 1864 Act, to landlord-tenant disputes, but has been held to encompass, for example, suits by a purchaser at a foreclosure sale to evict the former owner,26 by the heir of property to evict the current occupant,27 and by a tenant in common seeking to share possession of the premises.28
33
Even were we to accept respondent's contention that the statute of Henry VI provides the closest common-law analogue for § 16—1501, that would lend no support to its argument that no right to jury trial should be recognized in actions under § 16—1501. The fact of the matter is that jury trials before justices of the peace were afforded in actions to recover possession of property brought under the statute of Henry VI.29 Indeed, the statute itself provides for jury trials.30
34
Respondent claims, however, that this trial by jury before a justice of the peace was not a trial by jury as that concept came to be established in the Seventh Amendment. Respondent relies primarily on our decision in Capital Traction Co. v. Hof, 174 U.S. 1, 19 S.Ct. 580, 43 L.Ed. 873 (1899), where the Court held that trial by a jury before a justice of the peace presiding over a small claims suit in the District of Columbia was not a trial by jury in the constitutional sense. This Court reasoned in Hof that the District's justice of the peace
35
'was not, properly speaking, a judge, or his tribunal a court,—least of all, a court of record. The proceedings before him were not according to the course of the common law. . . . (The Act which permitted him to try cases with a jury) did not require him to superintend the course of the trial or to instruct the jury in matter of law; nor did it authorize him, upon the return of their verdict, to arrest judgment upon it, or to set it aside, for any cause whatever, but made it his duty to enter judgment upon it forthwith, as a thing of course. A body of men, so free from judicial control, was not a common-law jury; nor was a trial by them a trial by jury, within the meaning of the seventh amendment to the constitution.' Id., at 38—39, 19 S.Ct., at 595.
36
We think respondent's reliance on Hof is misplaced. Although containing broad language to this effect, see id., at 18, 19 S.Ct., at 587, Hof does not stand for the proposition that a trial by jury before a justice of the peace was totally unknown at common law. Rather, Hof relied on the fact that at common law, justices of the peace had no jurisdiction whatever over civil suits similar to the small claims action involved in that case. Id., at 16, 19 S.Ct., at 586. A trial before a justice of the peace in this kind of case, with or without a jury, was therefore unknown at common law, and could not have been within the contemplation of the Seventh Amendment. Id., at 18, 19 S.Ct., at 587.
37
The Court recognized in Hof, however, that English justices of the peace did have criminal jurisdiction. Id., at 16, 19 S.Ct., at 586. And, as we have seen, this criminal jurisdiction extended to trial of forcible entry and detainer and included trial by jury. History plainly reveals that a trial by jury before a justice of the peace in England, unlike trial before a justice of the peace in the District of Columbia, was a jury trial in the full constitutional sense. English justices of the peace were required to be learned in the law. They were judges of record and their courts, courts of record. The procedures they followed differed in no essential manner from that of the higher court of assize held by the King's judges. Trial by jury before the justices of the peace proceeded in the usual manner of a criminal trial by jury in the King's court.31 Respondent's attempted analogy between § 16—1501 and the English forcible entry and detainer statute, rather than cutting against a right to jury trial in the present case, lends further support to our conclusion that § 16—1501 encompasses rights and remedies which were enforced, at common law, through trial by jury.32
IV
38
The Court of Appeals also relied on our opinion in Block v. Hirsh, 256 U.S. 135, 41 S.Ct. 458, 65 L.Ed. 865 (1921), where we faced a challenge to the constitutionality of a statute transferring actions to recover possession of real property from the courts to a rent control commission. It was there argued that the statute deprived both landlords and tenants of their right to trial by jury. The Court, speaking through Mr. Justice Holmes, rejected this suggestion:
39
'The statute is objected to on the further ground that landlords and tenants are deprived by it of a trial by jury on the right to possession of the land.
40
If the power of the Commission established by the statute to regulate the relation is established, as we think it is, by what we have said, this objection amounts to little. To regulate the relation and to decide the facts affecting it are hardly separable.' Id., at 158, 41 S.Ct., at 460.
41
The Court of Appeals reasoned that we 'could scarcely have made this observation if the right to jury trial was conferred by the Constitution.' 294 A.2d, at 496. We think the Court of Appeals misunderstood the rationale of this case. Block v. Hirsh merely stands for the principle that the Seventh Amendment is generally inapplicable in administrative proceedings, where jury trials would be incompatible with the whole concept of administrative adjudication. See Curtis v. Loether, 415 U.S., at 194, 94 S.Ct., at 1008. See also NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937). We may assume that the Seventh Amendment would not be a bar to a congressional effort to entrust landlord-tenant disputes, including those over the right to possession, to an administrative agency. Congress has not seen fit to do so, however, but rather has provided that actions under § 16—1501 be brought as ordinary civil actions in the District of Columbia's court of general jurisdiction. Where it has done so, and where the action involves rights and remedies recognized at common law, it must preserve to parties their right to a jury trial. Curtis v. Loether, supra, 415 U.S., at 195, 94 S.Ct., at 1009.
42
The Court of Appeals appeared troubled by the burden jury trials might place on the District's court system and by the possibility that a right to jury trial would conflict with efforts to expedite judicial disposition of landlord-tenant controversies. We think it doubtful, however, that the right to a jury trial would significantly impair these important interests. As indicated earlier, the right to trial by jury was recognized by statute for over a century from 1864 to 1970,33 and it does not appear to have posed any unmanageable problems during that period.
43
In the average landlord-tenant dispute, where the failure to pay rent is established and no substantial defenses exist, it is unlikely that a defendant would request a jury trial. And, of course, the trial court's power to grant summary judgment where no genuine issues of material fact are in dispute provides a substantial bulwark against any possibility that a defendant will demand a jury trial simply as a means of delaying an eviction. More importantly, however, we reject the notion that there is some necessary inconsistency between the desire for speedy justice and the right to jury trial. We note, for example, that the Oregon landlord-tenant procedure at issue in Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972), although providing for a trial no later than six days after service of the complaint unless the defendant provided security for accruing rent, nevertheless guaranteed a right to jury trial. Many other States similarly provide for trial by jury in summary eviction proceedings.34
44
Some delay, of course, is inherent in any fair-minded system of justice. A landlord-tenant dispute, like any other lawsuit, cannot be resolved with due process of law unless both parties have had a fair opportunity to present their cases. Our courts were never intended to serve as rubber stamps for landlords seeking to evict their tenants, but rather to see that justice be done before a man is evicted from his home.
45
Reversed and remanded.
46
THE CHIEF JUSTICE and Mr. Justice DOUGLAS concur in the result.
1
In the District of Columbia, a tenant may defend against eviction proceedings for nonpayment of rent on the ground that housing regulations have not been complied with and that the premises are not being maintained in a habitable condition by the landlord. See Javins v. First Nat. Realty Corp., 138 U.S.App.D.C. 369, 428 F.2d 1071, cert. denied, 400 U.S. 925, 91 S.Ct. 186, 27 L.Ed.2d 185 (1970).
2
See Act of July 4, 1864, c. 243, 13 Stat. 383. See also infra, at 377—378.
3
The Senate version of the Court Reform Act retained a statutory guarantee of a right to jury trial almost identical to § 13—702. See S. 2601, 91st Cong., 1st Sess., § 202 (Sept. 16, 1969). While the House bill, which was adopted by the Conference Committee, did not contain a similar provision, the House Report seems to indicate that § 13—702 was not repealed in a conscious effort to change the practice of affording jury trial in actions to recover possession of real property, but was struck 'as superfluous in light of constitutional jury trial requirements . . ..' H.R.Rep.No.91—907, p. 164 (1970). See also H.R.16196, 91st Cong., 2d Sess., § 142(5)(A) (Mar. 13, 1970); H.R.Conf.Rep.No.91 1303 (1970). It appears then that Congress itself believed that jury trials were constitutionally required in all actions previously covered by § 13—702 and would continue to be provided in such actions.
4
We do not intend to imply that the District of Columbia Superior Court and Court of Appeals must be treated as state courts for all purposes. Cf. District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973). There are apparently several questions as yet unresolved concerning the relationship between the District of Columbia local courts and the United States District Court and the United States Court of Appeals for the District of Columbia Circuit. Among these are whether the United States District Court has jurisdiction under either 28 U.S.C. § 2254 or § 2255 to hear habeas corpus petitions or motions to vacate a sentence brought by persons in confinement by virtue of convictions had in the District of Columbia Superior Court and, if it does not, whether this Court has a special obligation to resolve conflicts between the District's 'local' and 'federal' courts on questions of constitutional law raised in such petitions. See D.C.Code §§ 16—1901 through 16—1909. Other unresolved questions involve the extent to which the principles of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and related cases apply to the relationship between the District's two court systems. See generally Sullivan v. Murphy, 156 U.S.App.D.C. 28, 50—54, 478 F.2d 938, 960—964, cert. denied, 414 U.S. 880, 94 S.Ct. 162, 38 L.Ed.2d 125 (1973). We, of course, express no views on these issues.
5
Prior to the enactment of the Court Reform Act in 1970, D.C.Code § 16—1504 provided that if the defendant in an action brought under § 16—1501 pleads title in himself or in another under whom he claims, and provides a surety to pay damages, costs, and reasonable intervening rent for the premises, the court (then the District of Columbia Court of General Sessions) shall certify the proceedings to the United States District Court for the District of Columbia. Today, a rule of the Superior Court provides that when an issue of title intrudes in an action brought under § 16—1501, the case is transferred from the Landlord and Tenant Branch which normally tries actions under § 16—1501 to the regular Civil Division. See 294 A.2d 490, 492 and n. 8.
6
See F. Maitland, The Forms of Action at Common Law 27—29 (1936); 1 F. Pollock & F. Maitland, The History of English Law 145 147 (2d ed. 1899); 3 W. Blackstone, Commentaries *187—188. Novel disseisin, like the action now embodied in § 16—1501, was designed primarily as a possessory action to permit one who had been ejected from his land to be restored to possession. If the ejector wished to raise questions of title, he could proceed later in a separate action. See T. Plucknett, A Concise History of the Common Law 341 (4th ed. 1948). See also Grant Timber & Mfg, Co. v. Gray, 236 U.S. 133, 134, 35 S.Ct. 279, 59 L.Ed. 501 (1915). Cf. n. 5, supra.
7
See, e.g., Maitland, supra, n. 6, at 83—84. Unlike the forcible entry and detainer remedy discussed infra, at 376—381, assizes of novel disseisin were presided over by a judge of the King's court rather than a justice of the peace. See ibid. The use of itinerant justices of the King's court to travel around the countryside on a regular basis to preside over the assizes was confirmed in Magna Carta, c. XII (1225). See also 1 Pollock & Maitland, supra, n. 6, at 155—156.
8
In its origin trial by assize was slightly different from trial by jury as we know it today. In particular the jurors, or 'recognitors' as they were then known, were summoned by the original writ and asked to answer a question posed by the writ itself as contrasted to the modern practice whereby jurors are not called into a case until it appears that questions of fact are raised by the pleadings. See generally 1 W. Hold-sworth, A History of English Law 330—331 (1927). In course of time, however, the recognitors summoned by the writ of novel disseisin assumed the functions of a modern jury. See 1 Pollock & Maitland, supra, n. 6, at 149; Maitland, supra, n. 6, at 35.
9
See Maitland, supra, n. 6, at 29; M. Hale, The History of the Common Law 175 (4th ed. 1779).
10
See Maitland, supra, n. 6, at 44—46; Plucknett, supra, n. 6, at 342—343.
11
Id., at 343; Maitland, supra, n. 6, at 39; 3 Blackstone, supra, n. 6, at *183 n. z.
12
Maitland, supra, n. 6, at 39.
13
See 3 & 4 Will. 4, c. 27, § 36 (1833).
14
Maitland, supra, n. 6, at 47; Plucknett, supra, n. 6, at 354; 3 Blackstone, supra, n. 6, at *199.
15
The classic fiction was used where two persons wished to try the title to land. One of them leased it to an imaginary person and the other leased it to another imaginary person. One imaginary lessee 'ejects' the other, and in order to try the right to possession of the rival imaginary lessees, the court must necessarily decide which of the real lessors had title to the land. See Maitland, supra, n. 6, at 57; 3 Blackstone, supra, n. 6, at *199—204. Cf. M'Arthur v. Porter, 6 Pet. 205, 211 (1832).
16
See, e.g., Little v. Heaton, 1 Salk. 259, 91 Eng.Rep. 227 (Q.B.1702); Roe d. West v. Davis, 7 East 363, 103 Eng.Rep. 140 (K.B.1806); Right d. Flower v. Darby, 1 T.R. 159, 99 Eng.Rep. 1029 (K.B.1786); Doe d. Spencer v. Godwin, 4 M. & S. 265, 105 Eng.Rep. 833 (K.B.1815); Doe d. Ash v. Calvert, 2 Camp. 387, 170 Eng.Rep. 1193 (N.P.1810). Indeed, the use of ejectment in landlord-tenant disputes became so widespread that a statute was enacted to simplify its application to these cases. See 4 Geo. 2, c. 28 (1731).
17
See Whitehead v. Shattuck, 138 U.S. 146, 11 S.Ct. 276, 34 L.Ed. 873 (1891). See also Doe d. Cheny v. Batten, 1 Cowp. 243, 98 Eng.Rep. 1066 (K.B.1775); Goodright d. Charter v. Cordwent, 6 T.R. 219, 101 Eng.Rep. 520 (K.B.1795).
18
D.C.Code § 16—1124. This statute is apparently derived from 4 Geo. 2, c. 28, §§ 2—4 (1731). See n. 16, supra.
19
See 3A G. Thompson, Real Property § 1370, pp. 718—719 (1959).
20
See, e.g., Shapiro v. Christopher, 90 U.S.App.D.C. 114, 123, 195 F.2d 785, 794 (1952); Service Parking Corp. v. Trans-Lux Radio City Corp., 47 A.2d 400, 403 (D.C.Mun.App.1946); Shipley v. Major, 44 A.2d 540, 541 (D.C.Mun.App.1945).
21
Prior to 1864, landlord-tenant disputes in the District of Columbia were governed by a Maryland statute, Act of Maryland of 1793, c. 43, 2 W. Kilty, Laws of Maryland (1800), which was incorporated into the laws of the District by the Act of Feb. 27, 1801, c. 15, 2 Stat. 103.
22
The 1864 Act was essentially the same as an 1836 Massachusetts statute. See Willis v. Eastern Trust & Banking Co., 169 U.S. 295, 18 S.Ct. 347, 42 L.Ed. 752 (1898). Those parts of the Massachusetts Act involving forcible entry and forcible detainer were derived from the English forcible entry and detainer statutes, including that of Henry VI. See Page v. Dwight, 170 Mass. 29, 48 N.E. 850 (1897); Boyle v. Boyle, 121 Mass. 85 (1876).
23
Suits were brought, for example, in the name of the State. See, e.g., The King v. Wilson, 8 T.R. 357, 101 Eng.Rep. 1432 (K.B.1799); The King v. Harris, 1 Salk. 260, 91 Eng.Rep. 229 (K.B.1699); The King v. Dormy, 1 Salk. 260, 91 Eng.Rep. 229 (K.B.1700). The case was brought by way of indictment. See Ford's Case, Cro.Jac. 151, 79 Eng.Rep. 132 (K.B.1607); W. Woodfall, Landlord and Tenant 814 (12th ed. 1881).
24
See The King v. Wilson, supra. It appears that in order for the entry to be forcible, it had to be accompanied by actual violence or terror, such as assault, the breaking open of doors, or the carrying away of the other party's goods. See Woodfall, supra, n. 23. See also 4 Blackstone, supra, n. 6, at *148. The use of actual force was a prerequisite to recovery under the forcible entry and detainer provisions of the 1864 Act applicable to the District of Columbia prior to 1953. See Thurston v. Anderson, 40 A.2d 342 (D.C.Mun.App.1944).
25
4 Blackstone, supra, n. 6, at *148. See Iron M. & H.R. Co. v. Johnson, 119 U.S. 608, 7 S.Ct. 339, 30 L.Ed. 504 (1887).
26
See, e.g., Glenn v. Mindell, 74 A.2d 835 (D.C.Mum.App.1950); Surratt v. Real Estate Exchange, 76 A.2d 587 (D.C.Mun.App.1950); Sayles v. Eden, 144 A.2d 895 (D.C.Mun.App.1958).
27
See, e.g., Mahoney v. Campbell, 209 A.2d 791 (%.d.c.c/t.App.1965).
28
See, e.g., Bagby v. Honesty, 149 A.2d 786 (D.C.Mun.App.1959).
29
See 4 Blackstone, supra, n. 6, at *148. See, e.g., Ford's Case, Cro.Jac. 151, 79 Eng.Rep. 132 (K.B.1607). C. Beard, The Office of Justice of the Peace in England 68 (1904).
30
'And also when the said Justices or Justice make such Inquiries as before, they shall make, or one of them shall make, their Warrants and Precepts to be directed to the Sheriff of the same County, commanding him of the King's Behalf to cause to come before them, and every of them, sufficient and indifferent Persons, dewelling next about the Lands so entered as before, to inquire of such Entries . . ..' 8 Hen. 6, c. 9, § IV (1429).
31
See generally Beard, supra, n. 29, at 158—164; McVicker, The Seventeenth Century Justice of Peace in England, 24 Ky.L.J. 387, 392, 403—407 (1936).
32
Respondent also relied on the fact that the procedure applicable to landlord-tenant disputes in the District of Columbia between 1801 and 1864, which had been incorporated from Maryland law, see n. 21, supra, also involved a jury of 12 before a justice of the peace. The Maryland Act embodied a summary means of recovering possession of lands held by tenants after the expiration of their terms, and provided that upon complaint, two justices of the peace shall, through a sheriff, summon 12 good and lawful men of the country to appear before the justices to determine whether resti-
tution of the land should be made to the lessor. See Act of Maryland of 1793, c. 43, 2 W. Kilty, Laws of Maryland (1800).
The Court of Appeals found that this mode of trial, like the procedure involved in Hof, wsa something less than a trial by jury in the constitutional sense. It therefore reasoned that there was no unbroken history of trial by jury in landlord-tenant actions in the District of Columbia and believed this lent additional support to its conclusion that no jury trial was required by the Constitution. 294 A.2d, at 495.
We disagree. To begin with, the Maryland statute involves a specialized cause of action, limited to landlord-tenant disputes, quite different from § 16—1501, which, as indicated earlier, is a general provision encompassing all disputes over the possession of land. See supra, at 379. Moreover, there is no indication, and the court below did not find, that § 16—1501 or any of its predecessor Acts were derived from this Maryland law. See supra, at 377—378. Whether or not jury trials were constitutionally required in the Maryland action after it was incorporated into the law of the District of Columbia, and whether or not the procedure actually afforded between 1801 and 1864 amounted to a full jury trial under our decision in Hof, are therefore irrelevant to the issue presented in this case. We have no occasion to decide, over 100 years after the fact, whether in suits brought between 1801 and 1864 under this now defunct landlord-tenant statute, parties were denied their Seventh Amendment rights.
33
The Act of July 4, 1864, c. 243, 13 Stat. 383, contemplated determination of the suit by a justice of the peace with appeal to the Supreme Court of the District and trial de novo before a jury. See, e.g., Luchs v. Jones, 8 D.C. (1 MacArthur) 345 (D.C.Sup.Ct.1874). Subsequent legislation, up to 1970, carefully preserved the right to jury trial. See, e.g., Act of Mar. 3, 1901, c. 854, §§ 20—24 and 80, 31 Stat. 1193 and 1201; Act of Mar. 3, 1921, c. 125, § 3, 41 Stat. 1310.
34
E.g., Ariz.Rev.Stat.Ann. § 12—1176 (1956); Cal.Civ.Proc.Code § 1171 (1972); Colo.Rule Civ.Proc. 38(a) (1970); Conn.Gen.Stat.Rev. § 52—463 (1973); Ga.Code Ann. §§ 105—1601, 105 1602 (1966); Ill.Rev.Stat., c. 57, § 11a (1973); Ind.Ann.Stat. § 3 1605 (1968), IC 1971, 32—7—3—4; Kan.Stat.Ann. § 61—2309 (Supp.1974); N.Y.Real Prop.Actions § 745, McKinney's Consol.Laws, c. 81 (1963); Ohio Rev.Code Ann. § 1923.10 (1968).
| 01
|
416 U.S. 396
94 S.Ct. 1800
40 L.Ed.2d 224
Raymond K. PROCUNIER, Director, California Department of Corrections, et al., Appellants,v.Robert MARTINEZ et al.
No. 72—1465.
Argued Dec. 3, 1973.
Decided April 29, 1974.
Syllabus
Appellees, prison inmates, brought this class action challenging prisoner mail censorship regulations issued by the Director of the California Department of Corrections and the ban against the use of law students and legal paraprofessionals to conduct attorney-client interviews with inmates. The mail censorship regulations, inter alia, proscribed inmate correspondence that 'unduly complain(ed),' 'magnif(ied) grievances,' 'express(ed) inflammatory pollitical, racial, religious or other views or beliefs,' or contained matter deemed 'defamatory' or 'otherwise inappropriate.' The District Court held these regulations unconstitutional under the First Amendment, void for vagueness, and violative of the Fourteenth Amendment's guarantee of procedural due process, and it enjoined their continued enforcement. The court required that an inmate be notified of the rejection of correspondence and that the author of the correspondence be allowed to protest the decision and secure review by a prison official other than the original censor. The District Court also held that the ban against the use of law students and legal paraprofessionals to conduct attorney-client interviews with inmates abridged the right of access to the courts and enjoined its continued enforcement. Appellants contend that the District Court should have abstained from deciding the constitutionality of the mail censorship regulations. Held:
1. The District Court did not err in refusing to abstain from deciding the constitutionality of the mail censorship regulations. Pp. 400—404.
2. The censorship of direct personal correspondence involves incidental restrictions on the right to free speech of both prisoners and their correspondents and is justified if the following criteria are met: (1) it must further one or more of the important and substantial governmental interests of security, order, and the rehabilitation of inmates, and (2) it must be no greater than is necessary to further the legitimate governmental interest involved. Pp. 404—414.
3. Under this standard the invalidation of the mail censorship regulations by the District Court was correct. Pp. 415 416.
4. The decision to censor or withhold delivery of a particular letter must be accompanied by minimum procedural safeguards against arbitrariness or error, and the requirements specified by the District Court were not unduly burdensome. Pp. 417—419.
5. The ban against attorney-client interviews conducted by law students or legal paraprofessionals, which was not limited to prospective interviewers who posed some colorable threat to security or to those inmates thought to be especially dangerous and which created an arbitrary distinction between law students employed by attorneys and those associated with law school programs (against whom the ban did not operate), constituted an unjustifiable restriction on the inmates' right of access to the courts. Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718, Pp. 419—422.
354 F.Supp. 1092, affirmed.
W. Eric Collins, San Francisco, Cal., for appellants.
William Bennett Turner, San Francisco, Cal., for appellees.
Mr. Justice POWELL delivered the opinion of the Court.
1
This case concerns the constitutionality of certain regulations promulgated by appellant Procunier in his capacity as Director of the California Department of Corrections. Appellees brought a class action on behalf of themselves and all other inmates of penal institutions under the Department's jurisdiction to challenge the rules relating to censorship of prisoner mail and the ban against the use of law students and legal paraprofessionals to conduct attorney-client interviews with inmates. Pursuant to 28 U.S.C. § 2281 a three-judge United States District Court was convened to hear appellees' request for declaratory and injunctive relief. That court entered summary judgment enjoining continued enforcement of the rules in question and ordering appellants to submit new regulations for the court's approval. 354 F.Supp. 1092 (N.D.Cal.1973). Appellants' first revisions resulted in counterproposals by appellees and a court order issued May 30, 1973, requiring further modification of the proposed rules. The second set of revised regulations was approved by the District Court on July 20, 1973, over appellees' objections. While the first proposed revisions of the Department's regulations were pending before the District Court, appellants brought this appeal to contest that court's decision holding the original regulations unconstitutional.
2
We noted probable jurisdiction. 412 U.S. 948, 93 S.Ct. 3013, 37 L.Ed.2d 1000 (1973). We affirm.
3
* First we consider the constitutionality of the Director's rules restricting the personal correspondence of prison inmates. Under these regulations correspondence between inmates of California penal institutions and persons other than licensed attorneys and holders of public office was censored for nonconformity to certain standards. Rule 2401 stated the Department's general premise that personal correspondence by prisoners is 'a privilege, not a right . . ..'1 More detailed regulations implemented the Department's policy. Rule 1201 directed inmates not to write letters in which they 'unduly complain' or 'magnify grievances.'2 Rule 1205(d) defined as contraband writings 'expressing inflammatory political, racial, religious or other views or beliefs . . ..'3 Finally, Rule 2402(8) provided that inmates 'may not send or receive letters that pertain to criminal activity; are lewd, obscene, or defamatory; contain foreign matter, or are otherwise inappropriate.'4
4
Prison employees screened both incoming and outgoing personal mail for violations of these regulations. No further criteria were provided to help members of the mailroom staff decide whether a particular letter contravened any prison rule or policy. When a prison employee found a letter objectionable, he could take one or more of the following actions: (1) refuse to mail or deliver the letter and return it to the author; (2) submit a disciplinary report, which could lead to suspension of mail privileges or other sanctions; or (3) place a copy of the letter or a summary of its contents in the prisoner's file, where it might be a factor in determining the inmate's work and housing assignments and in setting a date for parole eligibility.
5
The District Court held that the regulations relating to prisoner mail authorized censorship of protected expression without adequate justification in violation of the First Amendment and that they were void for vagueness. The court also noted that the regulations failed to provide minimum procedural safeguards against error and arbitrariness in the censorship of inmate correspondence. Consequently, it enjoined their continued enforcement.
6
Appellants contended that the District Court should have abstained from deciding these questions. In that court appellants advanced no reason for abstention other than the assertion that the federal court should defer to the California courts on the basis of comity. The District Court properly rejected this suggestion, noting that the mere possibility that a state court might declare the prison regulations unconstitutional is no ground for abstention. Wisconsin v. Constantineau, 400 U.S. 433, 439, 91 S.Ct. 507, 511, 27 L.Ed.2d 515 (1971).
7
Appellants now contend that we should vacate the judgment and remand the case to the District Court with instructions to abstain on the basis of two arguments not presented to it. First, they contend that any vagueness challenge to an uninterpreted state statute or regulation is a proper case for abstention. According to appellants, '(t)he very statement by the district court that the regulations are vague constitutes a compelling reason for abstention.' Brief for Appellants 8—9. As this Court made plain in Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964), however, not every vagueness challenge to an uninterpreted state statute or regulation constitutes a proper case for abstention.5 But we need not decide whether appellants' contention is controlled by the analysis in Baggett, for the short answer to their argument is that these regulations were neither challenged nor invalidated solely on the ground of vagueness. Appellees also asserted, and the District Court found, that the rules relating to prisoner mail permitted censorship of constitutionally protected expression without adequate justification. In light of the successful First Amendment attack on these regulations, the District Court's conclusion that they were also unconstitutionally vague hardly 'constitutes a compelling reason for abstention.'
8
As a second ground for abstention appellants rely on Cal.Penal Code § 2600(4), which assures prisoners the right to receive books, magazines, and periodicals.6 Although the did not advance this argument to the District Court, appellants now contend that the interpretation of the statute by the state courts and its application to the regulations governing prisoner mail might avoid or modify the constitutional questions decided below. Thus appellants seek to establish the essential prerequisite for abstention—'an uncertain issue of state law,' the resolution of which may eliminate or materially alter the federal constitutional question.7 Harman v. Forssenius, 380 U.S. 528, 534, 85 S.Ct. 1177, 1181, 14 L.Ed.2d 50 (1965). We are not persuaded.
9
A state court interpretation of § 2600(4) would not avoid of substantially modify the constitutional question presented here. That statute does not contain any provision purporting to regulate censorship of personal correspondence, It only preserves the right of inmates to receive 'newspapers, periodicals, and books' and authorizes prison officials to exclude 'obscene publications or writings, and mail containing information concerning where, how, or from whom such matter may be obtained . . .' (emphasis added). And the plain meaning of the language is reinforced by recent legislative history. In 1972, a bill was introduced in the California Legislature to restrict censorship of personal correspondence by adding an entirely new subsection to § 2600. The legislature passed the bill, but it was vetoed by Governor Reagan. In light of this history, we think it plain that no reasonable interpretation of § 2600(4) would avoid or modify the federal constitutional question decided below. Moreover, we are mindful of the high cost of abstention when the federal constitutional challenge concerns facial repugnance to the First Amendment. Zwickler v. Koota, 389 U.S. 241, 252, 88 S.Ct. 391, 397, 19 L.Ed.2d 444 (1967); Baggett v. Bullitt, 377 U.S., at 379, 84 S.Ct., at 1326. We therefore proceed to the merits.
A.
10
Traditionally, federal courts have adopted a broad hands—off attitude toward problems of prison administration. In part this policy is the product of various limitations on the scope of federal review of conditions in state penal institutions.8 More fundamentally, this attitude springs from complementary perceptions about the nature of the problems and the efficacy of judicial intervention. Prison administrators are responsible for maintaining internal order and discipline, for securing their institutions against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody. The Herculean obstacles to effective discharge of these duties are too apparent to warrant explication. Suffice it to say that the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. For all of those reasons, courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform.9 Judicial recognition of that fact reflects no more than a healthy sense of realism. Moreover, where state penal institutions are involved, federal courts have a further reason for deference to the appropriate prison authorities.
11
But a policy of judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims whether arising in a federal or state institution. When a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights. Johnson v. Avery, 393 U.S. 483, 486, 89 S.Ct. 747, 749, 21 L.Ed.2d 718 (1969). This is such a case. Although the District Court found the regulations relating to prisoner mail deficient in several respects, the first and principal basis for its decision was the constitutional command of the First Amendment, as applied to the States by the Fourteenth Amendment.10
12
The issue before us is the appropriate standard of review for prison regulations restricting freedom of speech. This Court has not previously addressed this question, and the tension between the traditional policy of judicial restraint regarding prisoner complaints and the need to protect constitutional rights has led the federal courts to adopt a variety of widely inconsistent approaches to the problem. Some have maintained a hands-off posture in the face of constitutional challenges to censorship of prisoner mail. E.g., McCloskey v. Maryland, 337 F.2d 72 (CA4 1964); Lee v. Tahash, 352 F.2d 970 (CA8 1965) (except insofar as mail censorship rules are applied to discriminate against a particular racial or religious group); Krupnick v. Crouse, 366 F.2d 851 (CA10 1966); Pope v. Daggett, 350 F.2d 296 (CA10 1965). Another has required only that censorship of personal correspondence not lack support 'in any rational and constitutionally acceptable concept of a prison system.' Sostre v. McGinnis, 442 F.2d 178, 199 (CA2 1971), cert. denied sub nom. Oswald v. Sostre, 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1972). At the other extreme some courts have been willing to require demonstration of a 'compelling state interest' to justify censorship of prisoner mail. E.g., Jackson v. Godwin, 400 F.2d 529 (CA5 1968) (decided on both equal protection and First Amendment grounds); Morales v. Schmidt, 340 F.Supp. 544 (WD Wis. 1972); Fortune Society v. McGinnis, 319 F.Supp. 901 (SDNY 1970). Other courts phrase the standard in similarly demanding terms of 'clear and present danger.' E.g., Wilkinson v. Skinner, 462 F.2d 670, 672 673 (CA2 1972). And there are various intermediate positions, most notably the view that a 'regulation or practice which restricts the right of free expression that a prisoner would have enjoyed if he had not been imprisoned must be related both reasonably and necessarily to the advancement of some justifiable purpose.' E.g., Carothers v. Follette, 314 F.Supp. 1014, 1024 (SDNY 1970) (citations omitted). See also Gates v. Collier, 349 F.Supp. 881, 896 (ND Miss. 1972); LeMon v. Zelker, 358 F.Supp. 554 (SDNY 1972).
13
This array of disparate approaches and the absence of any generally accepted standard for testing the constitutionality of prisoner mail censorship regulations disserve both the competing interests at stake. On the one hand, the First Amendment interests implicated by censorship of inmate correspondence are given only haphazard and inconsistent protection. On the other, the uncertainty of the constitutional standard makes it impossible for correctional officials to anticipate what is required of them and invites repetitive, piecemeal litigation on behalf of inmates. The result has been unnecessarily to perpetuate the involvement of the federal courts in affairs of prison administration. Our task is to formulate a standard of review for prisoner mail censorship that will be responsive to these concerns.
B
14
We begin our analysis of the proper standard of review for constitutional challenges to censorship of prisoner mail with a somewhat different premise from that taken by the other federal courts that have considered the question. For the most part, these courts have dealt with challenges to censorship of prisoner mail as involving broad questions of 'prisoners' rights.' This case is no exception. The District Court stated the issue in general terms as 'the applicability of First Amendment rights to prison inmates . . .,' 354 F.Supp., at 1096, and the arguments of the parties reflect the assumption that the resolution of this case requires an assessment of the extent to which prisoners may claim First Amendment freedoms. In our view this inquiry is unnecessary. In determining the proper standard of review for prison restrictions on inmate correspondence, we have no occasion to consider the extent to which an individual's right to free speech survives incarceration, for a narrower basis of decision is at hand. In the case of direct personal correspondence between inmates and those who have a particularized interest in communicating with them,11 mail censorship implicates more than the right of prisoners.
15
Communication by letter is not accomplished by the act of writing words on paper. Rather, it is effected only when the letter is read by the addressee. Both parties to the correspondence have an interest in securing that result, and censorship of the communication between them necessarily impinges on the interest of each. Whatever the status of a prisoner's claim to uncensored correspondence with an outsider, it is plain that the latter's interest is grounded in the First Amendment's guarantee of freedom of speech. And this does not depend on whether the nonprisoner correspondent is the author or intended recipient of a particular letter, for the addressee as well as the sender of direct personal correspondence derives from the First and Fourteenth Amendments a protection against unjustified governmental interference with the intended communication. Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1965); accord, Kleindienst v. Mandel, 408 U.S. 753, 762—765, 92 S.Ct. 2576, 2581—2583, 33 L.Ed.2d 693 (1972); Martin v. City of Struthers, 319 U.S. 141, 143, 63 S.Ct. 862, 863, 87 L.Ed. 1313 (1943). We do not deal here with difficult questions of the so-called 'right to hear' and third-party standing but with a particular means of communication in which the interests of both parties are inextricably meshed. The wife of a prison inmate who is not permitted to read all that her husband wanted to say to her has suffered an abridgment of her interest in communicating with him as plain as that which results from censorship of her letter to him. In either event, censorship of prisoner mail works a consequential restriction on the First and Fourteenth Amendments rights of those who are not prisoners.
16
Accordingly, we reject any attempt to justify censorship of inmate correspondence merely by reference to certain assumptions about the legal status of prisoners. Into this category of argument falls appellants' contention that 'an inmate's rights with reference to social correspondence are something fundamentally different than those enjoyed by his free brother.' Brief for Appellants 19. This line of argument and the undemanding standard of review it is intended to support fail to recognize that the First Amendment liberties of free citizens are implicated in censorship of prisoner mail. We therefore turn for guidance, not to cases involving questions of 'prisoners' rights,' but to decisions of this Court dealing with the general problem of incidental restrictions on First Amendment liberties imposed in furtherance of legitimate governmental activities.
17
As the Court noted in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969), First Amendment guarantees must be 'applied in light of the special characteristics of the . . . environment.' Tinker concerned the interplay between the right to freedom of speech of public high school students and 'the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools.' Id., at 507, 89 S.Ct., at 737. In overruling a school regulation prohibiting the wearing of antiwar armbands, the Court undertook a careful analysis of the legitimate requirements of orderly school administration in order to ensure that the students were afforded maximum freedom of speech consistent with those requirements. The same approach was followed in Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972), where the Court considered the refusal of a state college to grant official recognition to a group of students who wished to organize a local chapter of the Students for a Democratic Society (SDS), a national student organization noted for political activism and campus disruption. The Court found that neither the identification of the local student group with the national SDS, nor the purportedly dangerous political philosophy of the local group, nor the college administration's fear of future, unspecified disruptive activities by the students could justify the incursion on the right of free association. The Court also found, however, that this right could be limited if necessary to prevent campus disruption, id., at 189—190, n. 20, 92 S.Ct., at 2350, and remanded the case for determination of whether the students had in fact refused to accept reasonable regulations governing student conduct.
18
In United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), the Court dealt with incidental restrictions on free speech occasioned by the exercise of the governmental power to conscript men for military service. O'Brien had burned his Selective Service registration certificate on the steps of a courthouse in order to dramatize his opposition to the draft and to our country's involvement in Vietnam. He was convicted of violating a provision of the Selective Service law that had recently been amended to prohibit knowing destruction or mutilation of registration certificates. O'Brien argued that the purpose and effect of the amendment were to abridge free expression and that the statutory provision was therefore unconstitutional, both as enacted and as applied to him. Although O'Brien's activity involved 'conduct' rather than pure 'speech,' the Court did not define away the First Amendment concern, and neither did it rule that the presence of a communicative intent necessarily rendered O'Brien's actions immune to govermental regulation. Instead, it enunciated the following four-part test:
19
'(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.' Id., at 377, 88 S.Ct., at 1679.
20
Of course, none of these precedents directly controls the instant case. In O'Brien the Court considered a federal statute which on its face prohibited certain conduct having no necessary connection with freedom of speech. This led the Court to differentiate between 'speech' and 'nonspeech' elements of a single course of conduct, a distinction that has little relevance here. Both Tinker and Healy concerned First and Fourteenth Amendment liberties in the context of state educational institutions, a circumstance involving rather different governmental interests than are at stake here. In broader terms, however, these precedents involved incidental restrictions on First Amendment liberties by governmental action in furtherance of legitimate and substantial state interest other than suppression of expression. In this sense these cases are generally analogous to our present inquiry.
21
The case at hand arises in the context of prisons. One of the primary functions of government is the preservation of societal order through enforcement of the criminal law, and the maintenance of penal institutions is an essential part of that task. The identifiable governmental interests at stake in this task are the preservation of internal order and discipline,12 the maintenance of institutional security against escape or unauthorized entry, and the rehabilitation of the prisoners. While the weight of professional opinion seems to be that inmate freedom to correspond with outsiders advances rather than retards the goal of rehabilitation,13 the legitimate governmental interest in the order and security of penal institutions justifies the imposition of certain restraints on inmate correspondence. Perhaps the most obvious example of justifiable censorship of prisoner mail would be refusal to send or deliver letters concerning escaped plans or containing other information concerning proposed criminal activity, whether within or without the prison. Similarly, prison officials may properly refuse to transmit encoded messages. Other less obvious possibilities come to mind, but it is not our purpose to survey the range of circumstances in which particular restrictions on prisoner mail might be warranted by the legitimate demands of prison administration as they exist from time to time in the various kinds of penal institutions found in this country. Our task is to determine the proper standard for deciding whether a particular regulation or practice relating to inmate correspondence constitutes an impermissible restraint of First Amendment liberties.
22
Applying the teachings of our prior decisions to the instant context, we hold that censorship of prisoner mail is justified if the following criteria are met. First, the regulation or practice in question must further an important or substantial governmental interest unrelated to the suppression of expression. Prison officials may not censor inmate correspondence simply to eliminate unflattering or unwelcome opinions or factually inaccurate statements. Rather, they must show that a regulation authorizing mail censorship furthers one or more of the substantial governmental interests of security, order, and rehabilitation. Second, the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved. Thus a restriction on inmate correspondence that furthers an important or substantial interest of penal administration will nevertheless be invalid if its sweep is unnecessarily broad. This does not mean, of course, that prison administrators may be required to show with certainty that adverse consequences would flow from the failure to censor a particular letter. Some latitude in anticipating the probable consequences of allowing certain speech in a prison environment is essential to the proper discharge of an administrator's duty. But any regulation or practice that restricts inmate correspondence must be generally necessary to protect one or more of the legitimate governmental interests identified above.14
C
23
On the basis of this standard, we affirm the judgment of the District Court. The regulations invalidated by that court authorized, inter alia, censorship of statements that 'unduly complain' or 'magnify grievances,' expression of 'inflammatory political, racial, religious or other views,' and matter deemed 'defamatory' or 'otherwise inappropriate.' These regulations fairly invited prison officials and employees to apply their own personal prejudices and opinions as standards for prisoner mail censorship. Not surprisingly, some prison officials used the extraordinary latitude for discretion authorized by the regulations to suppress unwelcome criticism. For example, at one institution under the Department's jurisdiction, the checklist used by the mailroom staff authorized rejection of letters 'criticizing policy, rules or officials,' and the mailroom sergeant stated in a deposition that he would reject as 'defamatory' letters 'belitting staff or our judicial system or anything connected with Department of Corrections.' Correspondence was also censored for 'disrespectful comments,' 'derogatory remarks,' and the like.
24
Appellants have failed to show that these broad restrictions on prisoner mail were in any way necessary to the furtherance of a governmental interest unrelated to the suppression of expression. Indeed, the heart of appellants' position is not that the regulations are justified by a legitimate governmental interest but that they do not need to be. This misconception is not only stated affirmatively; it also underlies appellants' discussion of the particular regulations under attack. For example, appellants' sole defense of the prohibition against matter that is 'defamatory' or 'otherwise inappropriate' is that it is 'within the discretion of the prison administrators.' Brief for Appellants 21. Appellants contend that statements that 'magnify grievances' or 'unduly complain' are censored 'as a precaution against flash riots and in the furtherance of inmate rehabilitation.' Id., at 22. But they do not suggest how the magnification of grievances or undue complaining, which presumably occurs in outgoing letters, could possibly lead to flash riots, nor do they specify what contribution the suppression of complaints makes to the rehabilitation of criminals. And appellants defend the ban against 'inflammatory political, racial, religious or other views' on the ground that '(s)uch matter clearly presents a danger to prison security . . ..' Id., at 21. The regulation, however, is not narrowly drawn to reach only material that might be thought to encourage violence nor is its application limited to incoming letters. In short, the Department's regulations authorized censorship of prisoner mail far broader than any legitimate interest of penal administration demands and were properly found invalid by the District Court.15
D
25
We also agree with the District Court that the decision to censor or withhold delivery of a particular letter must be accompanied by minimum procedural safeguards. The interest of prisoners and their correspondents in uncensored communication by letter, grounded as it is in the First Amendment, is plainly a 'liberty' interest within the meaning of the Fourteenth Amendment even though qualified of necessity by the circumstance of imprisonment. As such, it is protected from arbitrary governmental invasion. See Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). The District Court required that an inmate be notified of the rejection of a letter written by or addressed to him, that the author of that letter be given a reasonable opportunity to protest that decision, and that complaints be referred to a prison official other than the person who originally disapproved the correspondence. These requirements do not appear to be unduly burdensome, nor do appellants so contend. Accordingly, we affirm the judgment of the District Court with respect to the Department's regulations relating to prisoner mail.
II
26
The District Court also enjoined continued enforcement of Administrative Rule MV—IV—02, which provides in pertinent part:
27
'Investigators for an attorney-of-record will be confined to not more than two. Such investigators must be licensed by the State or must be members of the State Bar. Designation must be made in writing by the Attorney.'
28
By restricting access to prisoners to members of the bar and licensed private investigators, this regulation imposed an absolute ban on the use by attorneys of law students and legal paraprofessionals to interview inmate clients. In fact, attorneys could not even delegate to such persons the task of obtaining prisoners' signatures on legal documents. The District Court reasoned that this rule constituted an unjustifiable restriction on the right of access to the courts. We agree.
29
The constitutional guarantee of due process of law has as a corollary the requirement that prisoners be afforded access to the courts in order to challenge unlawful convictions and to seek redress for violations of their constitutional rights. This means that inmates must have a reasonable opportunity to seek and receive the assistance of attorneys. Regulations and practices that unjustifiably obstruct the availability of professional representation or other aspects of the right of access to the courts are invalid. Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941).
30
The District Court found that the rule restricting attorney-client interviews to members of the bar and licensed private investigators inhibited adequate professional representation of indigent inmates. The remoteness of many California penal institutions makes a personal visit to an inmate client a timeconsuming undertaking. The court reasoned that the ban against the use of law students or other paraprofessionals for attorney-client interviews would deter some lawyers from representing prisoners who could not afford to pay for their traveling time or that of licensed private investigators. And those lawyers who agreed to do so would waste time that might be employed more efficaciously in working on the inmates' legal problems. Allowing law students and paraprofessionals to interview inmates might well reduce the cost of legal representation for prisoners. The District Court therefore concluded that the regulation imposed a substantial burden on the right of access to the courts.
31
As the District Court recognized, this conclusion does not end the inquiry, for prison administrators are not required to adopt every proposal that may be thought to facilitate prisoner access to the courts. The extent to which that right is burdened by a particular regulation or practice must be weighed against the legitimate interests of penal administration and the proper regard that judges should give to the expertise and discretionary authority of correctional officials. In this case the ban against the use of law students and other paraprofessional personnel was absolute. Its prohibition was not limited to prospective interviewers who posed some colorable threat to security or to those inmates thought to be especially dangerous. Nor was it shown that a less restrictive regulation would unduly burden the administrative task of screening and monitoring visitors.
32
Appellants' enforcement of the regulation in question also created an arbitrary distinction between law students employed by practicing attorneys and those associated with law school programs providing legal assistance to prisoners.16 While the Department flatly prohibited interviews of any sort by law students working for attorneys, it freely allowed participants of a number of law school programs to enter the prisons and meet with inmates. These largely unsupervised students were admitted without any security check other than verification of their enrollment in a school program. Of course, the fact that appellants have allowed some persons to conduct attorney-client interviews with prisoners does not mean that they are required to admit others, but the arbitrariness of the distinction between the two categories of law students does reveal the absence of any real justification for the sweeping prohibition of Administrative Rule MV—IV—02. We cannot say that the District Court erred in invalidating this regulation.
33
This result is mandated by our decision in Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969). There the Court struck down a prison regulation prohibiting any inmate from advising or assisting another in the preparation of legal documents. Given the inadequacy of alternative sources of legal assistance, the rule had the effect of denying to illiterate or poorly educated inmates any opportunity to vindicate possibly valid constitutional claims. The Court found that the regulation impermissibly burdened the right of access to the courts despite the not insignificant state interest in preventing the establishment of personal power structures by unscrupulous jailhouse lawyers and the attendant problems of prison discipline that follow. The countervailing state interest in Johnson is, if anything, more persuasive than any interest advanced by appellants in the instant case.
34
The judgment is affirmed.
35
Judgment affirmed.
36
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, concurring.
37
* I concur in the opinion and judgment of the Court. I write separately only to emphasize my view that prison authorities do not have a general right to open and read all incoming and outgoing prisoner mail. Although the issue of the First Amendment rights of inmates is explicitly reserved by the Court, I would reach that issue and hold that prison authorities may not read inmate mail as a matter of course.
II
38
As Mr. Justice Holmes observed over a half century ago, 'the use of the mails is almost as much a part of free speech as the right to use our tongues . . ..' Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407, 437, 41 S.Ct. 352, 363, 65 L.Ed. 704 (1921) (dissenting opinion), quoted with approval in Blount v. Rizzi, 400 U.S. 410, 416, 91 S.Ct. 423, 428, 27 L.Ed.2d 498 (1971). See also Lamont v. Postmaster General, 381 U.S. 301, 305, 85 S.Ct. 1493, 1495, 14 L.Ed.2d 398 (1965). A prisoner does not shed such basic First Amendment rights at the prison gate.1 Rather, he 'retains all the rights of an ordinary citizen except those expressly, or by necessary implication, taken from him by law.' Coffin v. Reichard, 143 F.2d 443, 445 (CA6 1944).2 Accordingly, prisoners are, in my view, entitled to use the mails as a medium of free expression not as a privilege, but rather as a constitutionally guaranteed right.3
39
It seems clear that this freedom may be seriously infringed by permitting correctional authorities to read all prisoner correspondence. A prisoner's free and open expression will surely be restrained by the knowledge that his every word may be read by his jailors and that his message could well find its way into a disciplinary file, be the object of ridicule, or even lead to reprisals. A similar pall may be cast over the free expression of the inmates' correspondents. Cf. Talley v. California, 362 U.S. 60, 65, 80 S.Ct. 536, 539, 4 L.Ed.2d 559 (1960); NAACP v. Alabama, 357 U.S. 449, 462, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488 (1958). Such an intrusion on First Amendment freedoms can only be justified by a substantial government interest and a showing that the means chosen to effectuate the State's purpose are not unnecessarily restrictive of personal freedoms.
40
'(e)ven though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.' Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960).4
41
The First Amendment must in each context 'be applied 'in light of the special characteristics of the . . . environment," Healy v. James, 408 U.S. 169, 180, 92 S.Ct. 2338, 2345, 33 L.Ed.2d 266 (1972), and the exigencies of governing persons in prisons are different from and greater than those in governing persons without. Barnett v. Rodgers, 133 U.S.App.D.C. 296, 301—302, 410 F.2d 995, 1000—1001 (1969); Rowland v. Sigler, 327 F.Supp. 821, 827 (Neb.), aff'd, 452 F.2d 1005 (CA8 1971). The State has legitimate and substantial concerns as to security, personal safety, institutional discipline, and prisoner rehabilitation not applicable to the community at large. But these considerations do not eliminate the need for reasons imperatively justifying the particular deprivation of fundamental constitutional rights at issue. Cf. Healy v. James, supra, 408 U.S., at 180, 92 S.Ct., at 2345; Tinker v. Des Moines School District, 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969).
42
The State asserts a number of justifications for a general right to read all prisoner correspondence. The State argues that contraband weapons or narcotics may be smuggled into the prison via the mail, and certainly this is a legitimate concern of prison authorities. But this argument provides no justification for reading outgoing mail. Even as to incoming mail, there is no showing that stemming the traffic in contraband could not be accomplished equally well by means of physical tests such as fluoroscoping letters.5 If physical tests were inadequate, merely opening and inspecting—and not reading—incoming mail would clearly suffice.6
43
It is also suggested that prison authorities must read all prison mail in order to detect escape plans. The State surely could not justify reading everyone's mail and listening to all phone conversations on the off chance that criminal schemes were being concocted. Similarly, the reading of all prisoner mail is too great an intrusion on First Amendment rights to be justified by such a speculative concern. There has been no showing as to the seriousness of the problem of escapes planned or arranged via the mail. Indeed, the State's claim of concern over this problem is undermined by the general practice of permitting unmonitored personal interviews during which any number of surreptitious plans might be discussed undetected.7 When prison authorities have reason to believe that an escape plot is being hatched by a particular inmate through his correspondence, they may well have an adequate basis to seize that inmate's letters; but there is no such justification for a blanket policy of reading all prison mail.
44
It is also occasionally asserted that reading prisoner mail is a useful tool in the rehabilitative process. The therapeutic model of corrections has come under increasing criticism and in most penal institutions rehabilitative programs are more ideal than reality.8 Assuming the validity of the rehabilitative model, however, the State does not demonstrate that the reading of inmate mail, with its attendant chilling effect on free expression, serves any valid rehabilitative purpose. Prison walls serve not merely to restrain offenders but also to isolate them. The mails provide one of the few ties inmates retain to their communities or familes—ties essential to the success of their later return to the outside world.9 Judge Kaufman, writing for the Second Circuit, found two observations particularly apropos of similar claims of rehabilitative benefit in Sostre v. McGinnis, 442 F.2d 178, 199 (1971) (en banc):
45
"Letter writing keeps the inmate in contact with the outside world, helps to hold in check some of the morbidity and hopelessness produced by prison life and isolation, stimulates his more natural and human impulses, and otherwise may make contributions to better mental attitudes and reformation."10
46
and:
47
"The harm censorship does to rehabilitation cannot be gainsaid. Inmates lose contact with the outside world and become wary of placing intimate thoughts or criticisms of the prison in letters. This artificial increase of alienation from society is ill advised."11
48
The Court today agrees that 'the weight of professional opinion seems to be that inmate freedom to correspond with outsiders advances rather than retards the goal of rehabilitation.' Ante, at 412.12
49
Balanced against the State's asserted interests are the values that are generally associated with freedom of speech in a free society—values which 'do not turn to dross in an unfree one.' Sostre v. McGinnis, supra, 442 F.2d, at 199. First Amendment guarantees protect the free and uninterrupted interchange of ideas upon which a democratic society thrives. Perhaps the most obvious victim of the indirect censorship effected by a policy of allowing prison authorities to read inmate mail is criticism of prison administration. The threat of identification and reprisal inherent in allowing correctional authorities to read prisoner mail is not lost on inmates who might otherwise criticize their jailors. The mails are one of the few vehicles prisoners have for informing the community about their existence and, in these days of strife in our correctional institutions, the plight of prisoners is a matter of urgent public concern. To sustain a policy which chills the communication necessary to inform the public on this issue is at odds with the most basic tenets of the guarantee of freedom of speech.13
50
The First Amendment serves not only the needs of the polity but also those of the human spirit—a spirit that demands self-expression. Such expression is an integral part of the development of ideas and a sense of identity. To suppress expression is to reject the basic human desire for recognition and affront the individual's worth and dignity.14 Cf. Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). Such restraint may be 'the greatest displeasure and indignity to a free and knowing spirit that can be put upon him.' J. Milton, Aeropagitica, 21 (Everyman's ed. 1927). When the prison gates slam behind an inmate, he does not lose his human quality; his mind does not become closed to ideas; his intellect does not cease to feed on a free and open interchange of opinions; his yearning for self-respect does not end; nor is his quest for self-realization concluded. If anything, the needs for identity and self-respect are more compelling in the dehumanizing prison environment. Whether an O. Henry writing his short stories in a jail cell or a frightened young inmate writing his family, a prisoner needs a medium for self-expression. It is the role of the First Amendment and this Court to protect those precious personal rights by which we satisfy such basic yearnings of the human spirit.
51
Mr. Justice DOUGLAS joins in Part II of this opinion.
52
Mr. Justice DOUGLAS, concurring in the judgment.
53
I have joined Part II of Mr. Justice MARSHALL's opinion because I think it makes abundantly clear that foremost among the Bill of Rights of prisoners in this country, whether under state or federal detention, is the First Amendment. Prisoners are still 'persons' entitled to all constitutional rights unless their liberty has been constitutionally curtailed by procedures that satisfy all of the requirements of due process.
54
While Mr. Chief Justice Hughes in Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 stated that the First Amendment was applicable to the States by reason of the Due Process Clause of the Fourteenth, it has become customary to rest on the broader foundation of the entire Fourteenth Amendment. Free speech and press within the meaning of the First Amendment are, in my judgment, among the pre-eminent privileges and immunities of all citizens.
1
Director's Rule 2401 provided:
'The sending and receiving of mail is a privilege, not a right, and any violation of the rules governing mail privileges either by you or by your correspondents may cause suspension of the mail privileges.'
2
Director's Rule 1201 provided:
'INMATE BEHAVIOR: Always conduct yourself in an orderly manner. Do not fight or take part in horseplay or physical encounters except as part of the regular athletic program. Do not agitate, unduly complain, magnify grievances, or behave in any way which might lead to violence.'
It is undisputed that the phrases 'unduly complain' and 'magnify grievances' were applied to personal correspondence.
3
Director's Rule 1205 provided:
'The following is contraband:
'd. Any writings or voice recordings expressing inflammatory political, racial, religious or other views or beliefs when not in the immediate possession of the originator, or when the originator's possession is used to subvert prison discipline by display or circulation.'
Rule 1205 also provides that writings 'not defined as contraband under this rule, but which, if circulated among other inmates, would in the judgment of the warden or superintendent tend to subvert prison order or discipline, may be placed in the inmate's property, to which he shall have access under supervision.'
4
At the time of appellees' amended complaint, Rule 2402(8) included prohibitions against 'prison gossip or discussion of other inmates.' Before the first opinion of the District Court, these provisions were deleted, and the phrase 'contain foreign matter' was substituted in their stead.
5
In Baggett the Court considered the constitutionality of loyalty oaths required of certain state employees as a condition of employment. For the purpose of applying the doctrine of abstention the Court distinguished between two kinds of vagueness attacks. Where the case turns on the applicability of a state statute or regulation to a particular person or a defined course of conduct, resolution of the unsettled question of state law may eliminate any need for constitutional adjudication. 377 U.S., at 376—377, 84 S.Ct., at 1325—1326. Abstention is therefore appropriate. Where, however, as in this case, the statute or regulation is challenged as vague because individuals to whom it plainly applies simply cannot understand what is required of them and do not wish to forswear all activity arguably within the scope of the vague terms, abstention is not required. Id., at 378, 84 S.Ct., at 1326. In such a case no single adjudication by a state court could eliminate the constitutional difficulty. Rather it would require 'extensive adjudications, under the impact of a variety of factual situations,' to bring the challenged statute or regulation 'within the bounds of permissible constitutional certainty.' Ibid.
6
Cal.Penal Code § 2600 provides that '(a) sentence of imprisonment in a state prison for any term suspends all the civil rights of the person so sentenced . . .,' and it allows for partial restoration of those rights by the California Adult Authority. The statute then declares, in pertinent part:
'This section shall be construed so as not to deprive such person of the following civil rights, in accordance with the laws of this state:
'(4) To purchase, receive, and read any and all newspapers, periodicals, and books accepted for distribution by the United States Post Office. Pursuant to the provisions of this section, prison authorities shall have the authority to exclude obscene publications or writings, and mail containing information concerning where, how, or from whom such matter may be obtained; and any matter of a character tending to incite murder, arson, riot, violent racism, or any other form of violence; and any matter concerning gambling or a lottery. . . .'
7
Appellants argue that the correctness of their abstention argument is demonstrated by the District Court's disposition of Count II of appellees' amended complaint. In Count II appellees challenged the mail regulations on the ground that their application to correspondence between inmates and attorneys contravened the Sixth and Fourteenth Amendments. Appellees later discovered that a case was then pending before the Supreme Court of California in which the application of the prison rules to attorney-client mail was being attacked under subsection (2) of § 2600, which provides:
'This section shall be construed so as not to deprive (an inmate) of the following civil rights, in accordance with the laws of this state:
'(2) To correspond, confidentially, with any member of the State Bar, or holder of public office, provided that the prison authorities may open and inspect such mail to search for contraband.'
The District Court did stay its hand, and the subsequent decision in In re Jordan, 7 Cal.3d 930, 103 Cal.Rptr. 849, 500 P.2d 873 (1972) (holding that § 2600(2) barred censorship of attorney-client correspondence), rendered Count II moot. This disposition of the claim relating to attorney-client, mail is, however, quite irrelevant to appellants' contention that the District Court should have abstained from deciding whether the mail regulations are constitutional as they apply to personal mail. Subsection (2) of § 2600 speaks directly to the issue of censorship of attorney-client mail but says nothing at all about personal correspondence, and appellants have not informed us of any challenge to the censorship of personal mail presently pending in the state courts.
8
See Note, Decency and Fairness: An Emerging Judicial Role in Prison Reform, 57 Va.L.Rev. 841, 842—844 (1971).
9
They are also ill suited to act as the front-line agencies for the consideration and resolution of the infinite variety of prisoner complaints. Moreover, the capacity of our criminal justice system to deal fairly and fully with legitimate claims will be impaired by a burgeoning increase of frivolous prisoner complaints. As one means of alleviating this problem, The Chief Justice has suggested that federal and state authorities explore the possibility of instituting internal administrative procedures for disposition of inmate grievances. 59 A.B.A.J. 1125, 1128 (1973). At the Third Circuit Judicial Conference meeting of October 15, 1973, at which the problem was addressed, suggestions also included (i) abstention where appropriate to avoid needless consideration of federal constitutional issues; and (ii) the use of federal magistrates who could be sent into penal institutions to conduct hearings and make findings of fact. We emphasize that we express no view as to the merit or validity of any particular proposal, but we do think it appropriate to indicate the necessity of prompt and thoughtful consideration by responsible federal and state authorities of this worsening situation.
10
Specifically, the District Court held that the regulations authorized restraint of lawful expression in violation of the First and Fourteenth Amendments, that they were fatally vague, and that they failed to provide minimum procedural safeguards against arbitrary or erroneous censorship of protected speech.
11
Different considerations may come into play in the case of mass mailings. No such issue is raised on these facts, and we intimate no view as to its proper resolution.
12
We need not and do not address in this case the validity of a temporary prohibition of an inmate's personal correspondence as a disciplinary sanction (usually as part of the regimen of solitary confinement) for violation of prison rules.
13
Policy Statement 7300.1A of the Federal Bureau of Prisons sets forth the Bureau's position regarding general correspondence by the prisoners entrusted to its custody. It authorizes all federal institutions to adopt open correspondence regulations and recognizes that any need for restrictions arises primarily from considerations of order and security rather than rehabilitation:
'Constructive, wholesome contact with the community is a valuable therapeutic tool in the overall correctional process. At the same time, basic controls need to be exercised in order to protect the security of the institution, individuals and/or the community-at-large.'
The recommended policy guideline adopted by the Association of State Correctional Administrators on August 23, 1972, echoes the view that personal correspondence by prison inmates is a generally wholesome activity: 'Correspondence with members of an inmate's family, close friends, associates and organizations is beneficial to the morale of all confined persons and may form the basis for good adjustment in the institution and the community.'
14
While not necessarily controlling, the policies followed at other well-run institutions would be relevant to a determination of the need for a particular type of restriction. For example, Policy Statement 7300.1A of the Federal Bureau of Prisons specifies that personal correspondence of inmates in federal prisons, whether incoming or outgoing, may be rejected for inclusion of the following kinds of material:
'(1) Any material which might violate postal regulations, I.e., threats, blackmail, contraband or which indicate plots of escape.
'(2) Discussions of criminal activities.
'(3) No inmate may be permitted to direct his business while he is in confinement. This does not go to the point of prohibiting correspondence necessary to enable the inmate to protect the property and funds that were legitimately his at the time he was committed to the institution. Thus, an inmate could correspond about refinancing a mortgage on his home or sign insurance papers, but he could not operate a mortgage or insurance business while in the institution.
'(4) Letters containing codes or other obvious attempts to circumvent these regulations will be subject to rejection.
'(5) Insofar as possible, all letters should be written in English, but every effort should be made to accommodate those inmates who are unable to write in English or whose correspondents would be unable to understand a letter written in English. The criminal sophistication of the inmate, the relationship of the inmate and the correspondent are factors to be considered in deciding whether correspondence in a foreign language should be permitted.'
15
After the District Court held the original regulations unconstitutional, revised regulations were developed by appellants and approved by the court. Supp. to App. 194—200, 211. Although these regulations are not before us for review, they are indicative of one solution to the problem. The following provisions govern censorship of prisoner correspondence:
'CORRESPONDENCE
'A. Criteria for Disapproval of Inmate Mail
'1. Outgoing Letters
'Outgoing letters from inmates of institutions not requiring approval of inmate correspondents may be disapproved for mailing only if the content falls as a whole or in significant part into any of the following categories:
'a. The letter contains threats of physical harm against any person or threats of criminal activity.
'b. The letter threatens blackmail . . . or extortion.
'c. The letter concerns sending contraband in or out of the institutions.
'd. The letter concerns plans to escape.
'e. The letter concerns plans for activities in violation of institutional rules.
'f. The letter concerns plans for criminal activity.
'g. The letter is in code and its contents are not understood by reader.
'h. The letter solicits gifts of goods or money from other than family.
'i. The letter is obscene.
'j. The letter contains information which if communicated would create a clear and present danger of violence and physical harm to a human being. Outgoing letters from inmates of institutions requiring approval of correspondents may be disapproved only for the foregoing reasons, or if the addressee is not an approved correspondent of the inmate and special permission for the letter has not been obtained.
'2. Incoming Letters
'Incoming letters to inmates may be disapproved for receipt only for the foregoing reasons, or if the letter contains material which would cause severe psychiatric or emotional disturbance to the inmate, or in an institution requiring approval of inmate correspondents, is from a person who is not an approved correspondent and special permission for the letter has not been obtained.
'3. Limitations
'Disapproval of a letter on the basis that it would cause severe psychiatric or emotional disturbance to the inmate may be done only by a member of the institution's psychiatric staff after consultation with the inmate's caseworker. The staff member may disapprove the letter only upon a finding that receipt of the letter would be likely to affect prison discipline or security or the inmate's rehabilitation, and that there is no reasonable alternative means of ameliorating the disturbance of the inmate. Outgoing of incoming letters
may not be rejected solely upon the ground that they contain criticism of the institution or its personnel.
'4. Notice of Disapproval of Inmate Mail
'a. When an inmate is prohibited from sending a letter, the letter and a written and signed notice stating one of the authorized reasons for disapproval and indicating the portion or portions of the letter causing disapproval will be given the inmate.
'b. When an inmate is prohibited from receiving a letter, the letter and a written and signed notice stating one of the authorized reasons for disapproval and indicating the portion or portions of the letter causing disapproval will be given the sender. The inmate will be given notice in writing that a letter has been rejected, indicating one of the authorized reasons and the sender's name.
'c. Material from correspondence which violates the provisions of paragraph one may be placed in an inmate's file. Other material from correspondence may not be placed in an inmate's file unless it has been lawfully observed by an employee of the department and is relevant to assessment of the inmate's rehabilitation. However, such material which is not in violation of the provisions of paragraph one may not be the subject of disciplinary proceedings against an inmate. An inmate shall be notified in writing of the placing of any material from correspondence in his file.
'd. Administrative review of inmate grievances regarding the application of this rule may be had in accordance with paragraph DP—1003 of these rules.'
16
Apparently, the Department's policy regarding law school programs providing legal assistance to inmates, though well established, is not embodied in any regulation.
1
See, e.g., Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972); Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964); Brown v. Peyton, 437 F.2d 1228, 1230 (CA4 1971); Rowland v. Sigler, 327 F.Supp. 821, 827 (Neb.), aff'd, 452 F.2d 1005 (CA8 1971); Fortune Society v. McGinnis, 319 F.Supp. 901, 903 (SDNY 1970).
2
Accord, Moore v. Ciccone, 459 F.2d 574, 576 (CA8 1972); Nolan v. Fitzpatrick, 451 F.2d 545, 547 (CA1 1971); Brenneman v. Madigan, 343 F.Supp. 128, 131 (ND Cal. 1972); Burnham v. Oswald, 342 F.Supp. 880, 884 (WDNY 1972); Carothers v. Follette, 314 F.Supp. 1014, 1023 (SDNY 1970).
3
See, e.g., Sostre v. McGinnis, 442 F.2d 178, 199 (CA2 1971) (en banc); Preston v. Thieszen, 341 F.Supp. 785, 786—787 (WD Wis.1972); cf. Gray v. Creamer, 465 F.2d 179, 186 (CA3 1972); Morales v. Schmidt, 340 F.Supp. 544 (WD Wis.1972); Palmigiano v. Travisono, 317 F.Supp. 776 (RI 1970); Carothers v. Follette, supra.
4
The test I would apply is thus essentially the same as the test applied by the Court: '(T)he regulation . . . in question must further an important or substantial governmental interest unrelated to the suppression of expression . . . (and) the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved.' Ante, at 413.
5
See Marsh v. Moore, 325 F.Supp. 392, 395 (Mass.1971).
6
See Moore v. Ciccone, supra, at 578 (Lay, J., concurring); cf. Jones v. Wittenberg, 330 F.Supp. 707, 719 (ND Ohio 1971), aff'd sub nom. Jones v. Metzger, 456 F.2d 854 (CA6 1972).
7
Palmigiano v. Travisono, supra.
8
See generally J. Mitford, Kind and Usual Punishment: The Prison Business (1973).
9
See, e.g., National Advisory Commission on Criminal Justice Standards and Goals, Corrections 67—68 (1973).
10
See Plamigiano v. Travisono, supra, 317 F.Supp., at 791.
11
Singer, Censorship of Prisoners' Mail and the Constitution, 56 A.B.A.J. 1051, 1054 (1970).
12
Various studies have strongly recommended that correctional authorities have the right to inspect mail for contraband but not to read it. National Advisory Commission on Criminal Justice Standards and Goals, Corrections, Standard 2.17, pp. 66—69 (1973); see California Board of Corrections, California Correctional System Study: Institutions 40 (1971); Center for Criminal Justice, Boston University Law School, Model Rules and Regulations on Prisoners' Rights and Responsibilities, Standards IC—1 and IC—2, pp. 46—47 (1973).
13
See, e.g., Nolan v. Fitzpatrick, 451 F.2d, at 547—548.
14
Emerson, Toward a General Theory of the First Amendment, 72 Yale L.J. 877, 879—880 (1963).
| 23
|
416 U.S. 386
94 S.Ct. 1741
40 L.Ed.2d 215
LEHMAN BROTHERS, Petitioners,v.Jacob SCHEIN et al. Benjamin SIMON, Petitioner, v. Jacob SCHEIN and Marvin H. Schein. INVESTORS DIVERSIFIED SERVICES, INC., et al., Petitioners, v. Jacob SCHEIN et al.
Nos. 73—439, 73—440, 43—495.
Argued March 19, 1974.
Decided April 29, 1974.
Syllabus
Shareholders' derivative diversity suits were brought in federal court in New York, alleging that the president of a Florida corporation as a fiduciary, with others, used inside information about projected corporate earnings for profit and hence wsa liable to the corporation for the unlawful profits. The District Court, looking to New York's choice-of-law rules, held that under Florida law, which it held governed, the defendants were not liable, and dismissed the complaints. The Court of Appeals reversed, finding that Florida law, though controlling, was not decisive, and that in this situation, Florida 'would probably' apply a certain New York decision to impose liability. Held: While resort to an available certification procedure, such as is available in Florida, is not obligatory where there is doubt as to local law, and its use in a given case is discretionary, resort to such procedure seems particularly appropriate here in view of the novelty of the question, the unsettled state of Florida law, and the fact that when federal judges in New York attempt to predict uncertain Florida law, they act as 'outsiders' not exposed to local law. Hence, the case is remanded to the Court of Appeals to reconsider whether the controlling issue of state law should be certified to the Florida Supreme Court. Pp. 389—392.
2 Cir., 478 F.2d 817, vacated and remanded.
James J. Hagan, New York City, for petitioners.
Donald N. Ruby, New York City, for respondents.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
These cases are here on petitions for certiorari and raise one identical question.
2
These are suits brought in the District Court for the Southern District of New York. Lum's, one of the respondents in the Lehman Bros. petition, is a Florida corporation with headquarters in Miami. Each of the three petitions, which we consolidated for oral argument, involves shareholders' derivative suits naming Lum's and others as defendants; and the basis of federal jurisdiction is diversity of citizenship, 28 U.S.C. § 1332(a)(1), about which there is no dispute.
3
The complaints allege that Chasen, president of Lum's, called Simon, a representative of Lehman Bros., and told him about disappointing projections of Lum's earnings, estimates that were confidential, not public. Simon is said to have told an employee of IDS1 about them. On the next day, it is alleged that the IDS defendants sold 83,000 shares of Lum's on the New York Stock Exchange for about $17.50 per share. Later that day the exchanges halted trading in Lum's stock and on the next trading day it opened at $14 per share, the public being told that the projected earnings would be 'substantially lower' than anticipated. The theory of the complaints was that Chasen was a fiduciary but used the inside information along with others for profit and that Chasen and his group are liable to Lum's for their unlawful profits.
4
Lehman and Simon defended on the ground that the IDS sale was not made through them and that neither one benefited from the sales. Nonetheless plaintiffs claimed that Chasen and the other defendants were liable under Diamond v. Oreamuno, 24 N.Y.2d 494, 301 N.Y.S.2d 78, 248 N.E.2d 910 (1969). Diamond proceeds on the theory that 'inside' information of an officer or director of a corporation is an asset of the corporation which had been acquired by the insiders as fiduciaries of the company and misappropriated in violation of trust.
5
The District Court looked to the choice-of-law rules of the State of New York, Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941), and held that the law of the State of incorporation governs the existence and extent of corporate fiduciary obligations, as well as the liability for violation of them. Diamond did, indeed, so indicate. 24 N.Y.2d at 503—504, 301 N.Y.S.2d, at 85—86, 248 N.E.2d, at 915.
6
The District Court in examining Florida law concluded that, although the highest court in Florida has not considered the question, several district courts of appeal indicate that a complaint which fails to allege both wrongful acts and damage to the corporation must be dismissed.2 The District Court went on the consider whether if Florida followed the Diamond rationale, defendants would be liable. It concluded that the present complaints to beyond Diamond, as Chasen, the only fiduciary of Lum's involved in the suits, never sold any of his holdings on the basis of inside information. The other defendants were not fiduciaries of Lum's.3 The District Court accordingly dismissed the complaints, Gildenhorn v. Lum's Inc., 335 F.Supp. 329 (1971).
7
The Court of Appeals by a divided vote reversed the District Court. Schein v. Chasen, 478 F.2d 817 (CA2 1973). While the Court of Appeals held that Florida law was controlling, it found none that was decisive. So it then turned to the law of other jurisdictions, particularly that of New York, to see if Florida 'would probably' interpret Diamond to make it applicable here. The Court of Appeals concluded that the defendants had engaged with Chasen 'to misuse corporate property.' id., at 822, and that the theory of Diamond reaches that situation, 'viewing the case as the Florida court would probably view it.' Ibid. There were emanations from other Florida decisions4 that made the majority on the Court of Appeals feel that Florida would follow that reading of Diamond. Such a construction of Diamond, the Court of Appeals said, would have 'the prophylactic effect of providing a disincentive to insider trading.' Id., at 823. And so it would. Yet under the regime of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), a State can make just the opposite her law, providing there is no overriding federal rule which pre-empts state law by reason of federal curbs on trading in the stream of commerce.
8
The dissenter on the Court of Appeals urged that that court certify the state-law question to the Florida Supreme Court as is provided in Fla.Stat.Ann. § 25.031 and its Appellate Rule 4.61, 32 F.S.A. 478 F.2d, at 828. That path is open to this Court and to any court of appeals of the United States. We have, indeed, used it before5 has have courts of appeals.6
9
Moreover when state law does not make the certification procedure available,7 a federal court not infrequently will stay its hand, remitting the parties to the state court to resolve the controlling state law on which the federal rule may turn. Kaiser Steel Corp. v. W. S. Ranch Co., 391 U.S. 593, 88 S.Ct. 1753, 20 L.Ed.2d 835 (1968). Numerous applications of that practice are reviewed in Meredith v. Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9 (1943), which teaches that the mere difficulty in ascertaining local law is no excuse for remitting the parties to a state tribunal for the start of another lawsuit. We do not suggest that where there is doubt as to local law and where the certification procedure is available, resort to it is obligatory. It does, of course, in the long run save time, energy, and resources and helps build a cooperative judicial federalism.8 Its use in a given case rests in the sound discretion of the federal court.
10
Here resort to it would seem particularly appropriate in view of the novelty of the question and the great unsettlement of Florida law, Florida being a distant State. When federal judges in New York attempt to predict uncertain Florida law, they act, as we have referred to ourselves on this Court in matters of state law, as 'outsiders' lacking the common exposure to local law which comes from sitting in the jurisdiction.
11
'Reading the Texas statutes and the Texas decisions as outsiders without special competence in Texas law, we would have little confidence in our independent judgment regarding the application of that law to the present situation. The lower court did deny that the Texas statutes sustained the Commission's assertion of power. And this represents the view of an able and experienced circuit judge of the circuit which includes Texas and of two capable district judges trained in Texas law.' Railroad Comm'n v. Pullman Co., 312 U.S. 496, 499, 61 S.Ct. 643, 644, 85 L.Ed. 971 (1941).
12
See also MacGregor v. State Mutual Life Assur. Co., 315 U.S. 280, 281, 62 S.Ct. 607, 86 L.Ed. 846 (1942); Reitz v. Mealey, 314 U.S. 33, 39, 62 S.Ct. 24, 28, 86 L.Ed. 21 (1941).
13
The judgment of the Court of Appeals is vacated and the cases are remanded so that that court may reconsider whether the controlling issue of Florida law should be certified to the Florida Supreme Court pursuant to Rule 4.61 of the Florida Appellate Rules.
14
So ordered.
15
Judgments vacated and cases remanded.
16
Mr. Justice REHNQUIST, concurring.
17
The Court says that use of state court certification procedures by federal courts 'does, of course, in the long run save time, energy, and resources and helps build a cooperative judicial federalism.' Ante, at 391. It also observes that '(w)e do not suggest that where there is doubt as to local law and where the certification procedure is available, resort to it is obligatory,' and further states that '(i)ts use in a given case rests in the sound discretion of the federal court.' Ante, at 391. I agree with each of these propositions, but think it appropriate to emphasize the scope of the discretion of federal judges in deciding whether to use such certification procedures.
18
Petitioners here were defendants in the District Court. That court, applying applicable New York choice-of-law rules, decided that Florida law governs the case and, finding that the respondents' complaint requested relief which would extend the substantive law even beyond New York's apparently novel decision in Diamond v. Oreamuno, 24 N.Y.2d 494, 301 N.Y.S.2d 78, 248 N.E.2d 910 (1969), dismissed the complaint on the merits. The Court of Appeals agreed that Florida law applied, but held that Florida law would permit recovery on the claim stated by respondents. The opinion of the dissenting judge of the Court of Appeals, disagreeing with the majority's analysis of Florida law, added in a concluding paragraph that in light of the uncertainty of Florida law, the Florida certification procedure should hve been utilized by the Court of Appeals. On rehearing, petitioners requested the Court of Appeals to utilize this procedure, but they concede that this is the first such request that they made. Thus petitioners seek to upset the result of more than two years of trial and appellate litigation on the basis of a point which they first presented to the Court of Appeals upon petition for rehearing. Cf. Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 329, 84 S.Ct. 1293, 1296, 12 L.Ed.2d 350 (1964).
19
The authority which Congress has granted this Court to review judgments of the courts of appeals undoubtedly vests us not only with the authority to correct errors of substantive law, but to prescribe the method by which those courts go about deciding the cases before them. Western Pacific R. Corp. v. Western Pacific R. Co., 345 U.S. 247, 73 S.Ct. 656, 97 L.Ed. 986 (1953). But a sensible respect for the experience and competence of the various integral parts of the federal judicial system suggests that we go slowly in telling the courts of appeals or the district courts how to go about deciding cases where federal jurisdiction is based on diversity of citizenship, cases which they see and decide far more often than we do.
20
This Court has held that a federal court may not remit a diversity plaintiff to state courts merely because of the difficulty in ascertaining local law, Meredith v. Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9 (1943); it has also held that unusual circumstances may require a federal court having jurisdiction of an action to nonetheless abstain from deciding doubtful questions of state law, e.g., Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959); Kaiser Steel Corp. v. W. S. Ranch Co., 391 U.S. 593, 88 S.Ct. 1753, 20 L.Ed.2d 835 (1968) (per curiam). In each of these situations, our decisions have dealt with the issue of how to reconcile the exercise of the jurisdiction which Congress has conferred upon the federal courts with the important considerations of comity and cooperative federalism which are inherent in a federal system, both of which must be subject to a single national policy within the federal judiciary.
21
At the other end of the spectrum, however, I assume it would be unthinkable to any of the Members of this Court to prescribe the process by which a district court or a court of appeals should go about researching a point of state law which arises in a diversity case. Presumably the judges of the district courts and of the courts of appeals are at least as capable as we are in determining what the Florida courts have said about a particular question of Florida law.
22
State certification procedures are a very desirable means by which a federal court may ascertain an undecided point of state law, especially where, as is the case in Florida, the question can be certified directly to the court of last resort within the State. But in a purely diversity case such as this one, the use of such a procedure is more a question of the considerable discretion of the federal court in going about the decisionmaking process than it is a question of a choice trenching upon the fundamentals of our federal-state jurisprudence.
23
While certification may engender less delay and create fewer additional expenses for litigants than would abstention, it entails more delay and expense than would an ordinary decision of the state question on the merits by the federal court. See Clay v. Sun Insurance Office, Ltd., 363 U.S. 207, 226—227, 80 S.Ct. 1222, 1233—1234, 4 L.Ed.2d 1170 (1960) (dissenting opinion). The Supreme Court of Florida has promulgated an appellate rule, Fla.Appellate Rule 4.61 (1967), which provides that upon certification by a federal court to that court, the parties shall file briefs there according to a specified briefing schedule, that oral argument may be granted upon application, and that the parties shall pay the costs of the certification.* Thus while the certification procedure is more likely to produce the correct determination of state law, additional time and money are required to achieve such a determination.
24
If a district court or court of appeals believes that it can resolve an issue of state law with available research materials already at hand, and makes the effort to do so, its determination should not be disturbed simply because the certification procedure existed but was not used. The question of whether certification on the facts of this case, particularly in view of the lateness of its suggestion by petitioners, would have advanced the goal of correctly disposing of this litigation on the state law issue is one which I would leave, and I understand that the Court would leave, to the sound judgment of the court making the initial choice. But since the Court has today for the first time expressed its view as to the use of certification procedures by the federal courts, I agree that it is appropriate to vacate the judgment of the Court of Appeals and remand the cases in order that the Court of Appeals may reconsider certification in light of the Court's opinion.
1
Investors Diversified Services, Inc., Investors Variable Payment Fund, Inc., and IDS New Dimensions Fund, Inc., were defendants in the Schein case. Of those, only Investors Diversified Services, Inc., is a defendant in the other derivative action brought by Gregorio. The dismissal of the third derivative action (Gildenhorn) was not pursued on appeal.
One Sit and one Jundt, defendants alleged to be employees of IDS, Inc., were dismissed from the case by the District Court for lack of personal jurisdiction. There was no appeal from that dismissal.
2
e.g., Palma v. Zerbey, 189 So.2d 510, 511 (Fla.App.1966).
3
The District Court also held that whether Chasen would be liable not for profiting himself from the inside information but for revealing it to others could not be reached as Chasen, a nonresident of New York, had not been properly served.
4
See e.g., Quinn v. Phipps, 93 Fla. 805, 113 So. 419 (1927).
5
Aldrich v. Aldrich, 375 U.S. 249, 84 S.Ct. 305, 11 L.Ed.2d 304 (1963); Dresner v. City of Tallahassee, 375 U.S. 136, 84 S.Ct. 235, 11 L.Ed.2d 208 (1963).
6
Trail Builders Supply Co. v. Reagan, 430 F.2d 828 (CA5 1970); Gaston v. Pittman, 413 F.2d 1031 (CA5 1969); Martinez v. Rodriquez, 410 F.2d 729 (CA5 1969); Moragne v. States Marine Lines, Inc., 409 F.2d 32 (CA5 1969), rev'd on other grounds, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970); Hopkins v. Lockheed Aircraft Corp., 394 F.2d 656 (CA5 1968); Life Ins. Co. of Virginia v. Shifflet, 380 F.2d 375 (CA5 1967); Green v. American Tobacco Co., 325 F.2d 673 (CA5 1963); Sun Insurance Office v. Clay, 319 F.2d 505 (CA5 1963). The Fifth Circuit's willingness to certify is in part a product of frequent state court repudiation of its interpretations of state law. See the cases summarized in United Services Life Ins. Co. v. Delaney, 328 F.2d 483, 486—487 (CA5 1964) (Brown, C.J., concurring).
7
Certification procedures are available in several States, including Colorado, Colo. Appellate Rule 21.1 (1970); Hawaii, Haw.Rev.Stat. § 602—36 (1969); Louisiana, La.Rev.Stat.Ann. § 13:72.1 (Supp.1973); Maine, Me.Rev.Stat.Ann., Tit. 4, § 57 (1964); Maryland, Md.Ann.Code, Art. 26, § 161 (Supp.1973); Massachusetts, Mass.Sup.Jud.Ct.Rule 3:21 (1973); Montana, Mont.Sup.Ct.Rule 1 (1973); New Hampshire, N.H.Rev.Stat.Ann. § 490 App.R. 20 (Supp.1973); and Washington, Wash.Rev.Code Ann. §§ 2.60.010 2.60.030 (Supp.1972).
8
See Wright, The Federal Courts and the Nature and Quality of State Law, 13 Wayne L.Rev. 317 (1967); Kurland, Toward a Co-Operative Judicial Federalism: The Federal Court Abstention Doctrine, 24 F.R.D. 481 (1960); Note, Inter-Jurisdictional Certification: Beyond Abstention Toward Cooperative Judicial Federalism, 111 U.Pa.L.Rev. 344 (1963); Note, Florida's Interjurisdictional Certification: A Reexamination To Promote Expanded National Use, 22 U.Fla.L.Rev. 21 (1969).
*
Fla.Appellate Rule 4.61 (1967) provides in part:
'f. Costs of Certificate. The costs of the certificate and filing fee shall be equally divided between the parties unless otherwise ordered by this Court.
'g. Briefs and Argument. The appellant or moving party in the federal court shall file and serve upon its adversary its brief on the question certified within 30 days after the filing of said certificate in the appellate court of this state having jurisdiction. The appellee or responding party in the federal court shall file and serve upon its adversary its brief within 20 days after the receipt of appellant's or moving party's brief and a reply brief shall be filed within 10 days thereafter.
'h. Oral Argument. Oral argument may be granted upon application and, unless for good cause shown the time be enlarged by special order of the Court prior to the hearing thereon, the parties shall be allowed the same time as in other causes on the merits.'
| 89
|
416 U.S. 430
94 S.Ct. 1780
40 L.Ed.2d 250
Lonnie GOODING, Petitioner,v.UNITED STATES.
No. 72—6902.
Argued Feb. 25, 1974.
Decided April 29, 1974.
Syllabus
Petitioner, charged with illegal possession of drugs, made a motion to suppress the physical evidence seized in petitioner's apartment on February 12, 1971, at 9:30 p.m. by District of Columbia police officers pursuant to a magistrate's search warrant. Although no provisions of the D.C.Code were explicitly referred to, petitioner apparently contended, inter alia, that the warrant was executed in the nighttime in violation of D.C.Code § 23—521(f)(5), which specifically requires that search warrants be served in the daytime unless certain statutory conditions are met, none of which was satisfied here. The District Court granted petitioner's motion, rejecting the Government's contention that the warrant was issued under 21 U.S.C. § 879(a), which relates only to searches for 'controlled substances' and provides that a warrant may be served 'at any time of the day or night' as long as the issuing authority is satisfied that probable cause exists to believe that there are grounds for the warrant 'and for its service at such time.' The Court of Appeals reversed on the ground that 21 U.S.C. § 879(a) was the applicable statute and that its terms had been satisfied. Held:
1. Title 21 U.S.C. § 879(a), which is part of a comprehensive federal scheme for the control of drug abuse, applies to this case. Pp. 446—454.
(a) The standards for issuance of the wattant should be governed by nationwide federal legislation rather than by local D.C. laws. A United States Attorney filed the application for the warrant with a Federal Magistrate, alleging violations of the United States Code for which petitioner was indicted. P. 447.
(b) Though the affiant officer and the officers executing the warrant were D.C. police, rather than federal officers, and the legislative history of § 879(a) stressed federal enforcement, Congress manifested no purpose to dispense with the aid of other enforcement personnel in dealing with the narcotics problem. Pp. 447—450.
(c) If petitioner's contention were to prevail, the general search warrant statute applicable to the District of Columbia would govern D.C. police officers when investigating federal drug violations but not other federal crimes, despite the fact that D.C. police officers historically played a prominent role in federal drug enforcement under 18 U.S.C. § 1405 (1964 ed.), the predecessor statute of 21 U.S.C. § 879(a). Pp. 450—454.
2. Title 21 U.S.C. § 879(a), as was true of its predecessor statute, requires no special showing for a nighttime search, other than a showing, such as was made here, that the contraband is likely to be on the property or person to be searched at that time. Pp. 454—458.
155 U.S.App.D.C. 259, 477 F.2d 428, affirmed.
Herbert A. Rosenthal, Jr., Washington, D.C., for petitioner.
Andrew L. Frey, Washington, D.C., for respondent.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Petitioner in this case presents a claim that evidence offered against him at his trial should have been suppressed because it was seized at nighttime in violation of governing statutory provisions. The search which led to the seizure was conducted by officers of the District of Columbia Metropolitan Police Department at approximately 9:30 p.m. within the District of Columbia. Armed with a search warrant, the officers entered petitioner's apartment for the purpose of discovering violations of a federal narcotics statute, and seized a substantial amount of contraband narcotics. The parties urge upon us differing theories concerning which federal or District of Columbia statute bears on the legality of this search, and we must therefore interpret and reconcile several recent congressional enactments dealing with nighttime searches which seem to embody somewhat inconsistent views.1
2
The Court of Appeals agreed with the District Court's description of this congeries of statutes as a "bramblebush of uncertainties and contradictions,"2 and a mere summary of the statutes attests to the accuracy of that observation:
3
District of Columbia Statutes: The older of the two conceivably relevant District of Columbia statutes, D.C.Code § 33 414 (1973),3 was enacted in 1956 and authorizes search warrants for violations of the District of Columbia narcotics laws. This section does not limit the time during which searches may be made, stating plainly that '(t)he judge or commissioner shall insert a direction in the warrant that it may be served at any time in the day or night.' This liberal time provision is in direct contrast to the more restrictive provisions of the second District of Columbia statute to be considered, D.C.Code § 23 521(f)(5),4 which specifically requires that search warrants be served in the daytime unless certain conditions set forth in § 23—522(c)(1) are met. These conditions essentially require a showing of special need to search at night, and concededly have not been satisfied in this case.
4
Federal Statutes and Rules: The general provision governing federal search warrants is found in Fed.Rule Crim.Proc. 41.5 At the time the search in this case took place, Rule 41(c) provided that warrants must be served in the daytime except where 'the affidavits are positive that the property is on the person or in the place to be searched.'6 In such event the warrant could direct 'that it be served at any time.' This provision was incorporated in the Rules in 1948 as a replacement for language previously contained in the Espionage Act of 1917.7 A second federal statute relating only to searches for 'controlled substances' is found in 21 U.S.C. § 879(a),8 which was enacted in 1970. That section provides that a warrant may be served 'at any time of the day or night' so long as the issuing authority 'is satisfied that there is probable cause to believe that grounds exist for the warrant and for its service at such time.' This provision in turn is the successor to a provision in 18 U.S.C. § 1405 (1964 ed.),9 enacted in 1956 to relax the 'positivity' test of Rule 41 in cases involving certain narcotic drugs.10 Congress had passed this statute in response to the complaints of law enforcement officers that the positivity requirement gave commercial narcotics dealers a definite advantage over federal agents. Rule 41 is therefore not applicable to searches governed by the more specific narcotic search statutes.11
5
judge or United States magistrate issuing the warrant is satisfied that there is probable cause to believe that grounds exist for the warrant and for its service at such time.' The facts of this case must be understood in the context of these statutes. On February 11, 1971, an Assistant United States Attorney applied to a United States Magistrate sitting in the District of Columbia for a warrant authorizing a search of petitioner's apartment for evidence of illegal narcotics. The application included the brief notation: 'Violation: U.S.C.; Title 26. Sections: 4704a.' In connection with the application, an officer of the Metropolitan Police Department vice squad appeared before the Magistrate and swore that he had reason to believe petitioner was concealing property held in violation of that same code provision.12 The officer supplemented his personal testimony with a written affidavit, outlining the basis for the application in more detail and alleging specifically that 'illegal drugs are sold and possessed in violation of the United States Code, Title 26, Section 4704a.'13 The affidavit concluded with the language: 'I am positive that Lonnie Gooding is secreting narcotics inside his apartment at 1419 Chapin Street N.W. in violation of the USCode.'
6
The Magistrate then issued a warrant directing the Chief of Police or 'any member of MPDC' to search petitioner's apartment.14 The warrant specifically noted that facts had been set forth in an affidavit alleging a violation of 26 U.S.C. § 4704(a) (1964 ed.) and that those facts established probable cause to make the search. The warrant also stated that the search could be made 'at any time in the day or night.' This phrase was accompanied by a footnote reference to Fed.Rule Crim.Proc. 41(c), presumably because the police officer had asserted he was 'positive' the drugs were in petitioner's apartment. One of the briefs filed in this case suggests that the warrant form was preprinted and contemplated application of Rule 41 standards.15
7
The search warrant was executed on February 12, 1971, at 9:30 p.m.16 The officers engaged in the search were all members of the District of Columbia Metropolitan Police Department, and the search uncovered a substantial quantity of contraband narcotic materials. They were seized and formed the basis for charging petitioner with violations of 26 U.S.C. § 4704(a) (1964 ed.)17 and 21 U.S.C. § 174 (1964 ed.).18 Following his indictment in the United States District Court for the District of Columbia on April 6, 1971, petitioner filed a motion to suppress the evidence discovered in the February 12 search.
8
Several grounds were asserted in support of the motion, particularly that '(t) he search warrant was executed at night but the application for the warrant did not comply with the D.C.Code provisions for nighttime search warrants . . ..'19 Although no provisions of the D.C.Code were explicitly referred to, petitioner's argument apparently was that Title 23 of the D.C.Code, requiring that a special showing of need be made to justify a search at night, governed this search, and that its requirements had not been met. The District Court found this reasoning persuasive and granted the motion to suppress. Rejecting the Government's argument that the warrant was not issued under Title 23 but rather under 21 U.S.C. § 879(a), the court stated:
9
'Whatever be the standards generally for issuance of a nighttime search warrant in federal narcotics cases in other parts of the country, however, the Court finds that the existence of 21 U.S.C. § 879(a) does not remove such cases from the explicit requirements for search warrants in the District of Columbia under the newly enacted Title 23, D.C.Code.'20
10
Having decided that District of Columbia law applied, the District Court admitted to some uncertainty about the status of D.C.Code § 33—414, the provision dealing specifically with violations of local drug laws. The court noted with some puzzlement that no mention of this provision was found in the legislative history of Title 23, and that some language in the legislative history suggested that the provision had simply been overlooked.21 Nevertheless, the court determined that
11
'(p)ending prompt review of this determination or congressional action, and pending interpretation of 33 D.C.Code § 414(h) in light of the new Title 23 provisions, search warrants which are to be executed in the nighttime should comply in all respects with 23 D.C.Code § 523(b).'22
12
Concededly the warrant issued in this case did not comply with the requirements of Title 23.
13
The Court of Appeals for the District of Columbia Circuit reversed the District Court,23 although none of the three judges who composed the panel completely agreed with any other on the proper rationale. All three agreed, however, that 21 U.S.C. § 879(a), rather than any provision of the District of Columbia Code, was the provision which determined the legality of this search. All three likewise agreed that the affidavit submitted by the District of Columbia police officer satisfied the requirements of that section. Judge Wilkey and Judge Fahy found that no greater showing for a nighttime search was required by § 879(a) than was required by its predecessor statute governing federal narcotics searches, 18 U.S.C. § 1405 (1964 ed.), and that the affidavit need establish only probable cause to believe that the property would be on the premises at the time of the search.24 Judge Robinson believed that § 879(a) did require an additional showing for a nighttime search, but concluded that such a showing had been made in this case.25
14
Petitioner urges that we reverse the Court of Appeals on either or both of two alternative grounds. First, petitioner repeats his assertion, sustained by the District Court, that Title 23 of the D.C.Code is the statute applicable to the search in this case and that, as the Government has conceded, the requirements of that title have not been satisfied. Second, petitioner argues that, if 21 U.S.C. § 879(a) is considered to be the applicable provision, a special showing for nighttime searches must be made. We agree with the Court of Appeals that 21 U.S.C. § 879(a) is the statute applicable to this case, and that its provisions have been satisfied here.26
15
* The unique situation of the District of Columbia, for which Congress legislates both specially and as a part of the Nation, gives rise to the principal difficulties in this case. For we deal here not with statutory schemes enacted by independent legislative bodies, but with possibly overlapping schemes enacted by a single body. Despite the potential overlap, however, we think that the operative facts surrounding this search strongly indicate that the standards for issuance of a warrant should be governed by the nationwide federal legislation enacted by Congress—that is, 21 U.S.C. § 879(a)27—rather than by the local D.C. laws. To begin with, an Assistant United States Attorney, who had discretion to proceed either under federal or under local law, filed the application for the search warrant alleging a violation of the United States Code. Application was made to a United States Magistrate, located in the United States District Court building, and neither the application nor the supporting affidavits contained any mention of the local narcotics laws. After the materials were seized, petitioner was indicted for violations of federal law.
16
Petitioner contends, however, that Title 23 of the D.C. Code should apply to this case because the executing officers, as well as the officer swearing to the affidavit presented to the Magistrate, were not federal officers but officers of the District of Columbia Metropolitan Police Department. He argues that the provisions of 21 U.S.C. § 879(a) were intended to apply solely to agents of the Bureau of Narcotics and Dangerous Drugs, none of whom were involved here, whereas Title 23 of the D.C. Code was intended to provide comprehensive regulation of District of Columbia police officers investigating both local and federal offenses. Petitioner reinforces his argument by noting that the former federal statute regulating drug searches specifically provided that 'a search warrant may be directed to any officer of the Metropolitan Police of the District of Columbia authorized to enforce or assist in enforcing a violation of any of such provisions,'28 while no such section appears in 21 U.S.C. § 879. Therefore, says petitioner, the District of Columbia police were no longer to be considered federal agents for the purpose of enforcing federal drug laws.
17
Although petitioner's arguments cannot be dismissed lightly, we find them ultimately unpersuasive. Concededly there are hints in the statutory framework and legislative history of the Controlled Substances Act, 84 Stat. 1242, that indicate the policing function under those provisions would be the primary responsibility of the Bureau of Narcotics and Dangerous Drugs.29 But this focus on the Bureau's role seems entirely natural in view of one of the Act's stated purposes to 'collect the diverse drug control and enforcement laws under one piece of legislation to facilitate law enforcement, drug research, educational and related control facilities.'30 In providing a comprehensive federal scheme for the control of drug abuse, Congress could be expected to pay special attention to the federal agency set up to enforce the laws. But this attention does not mean that Congress at the same time wished to dispense with the aid of other enforcement personnel who had previously given assistance.
18
The failure of Congress to include a special provision authorizing District of Columbia police officers to obtain search warrants for investigating federal offenses cannot be taken as a deliberate exclusion in view of the overall statutory framework. The provision included in the previous federal statute may will have seemed unnecessary, both in light of the history of cooperation between the District of Columbia police and federal officers and in view of the provisions of D.C.Code § 4—138 providing that '(a)ny warrant for search or arrest, issued by any magistrate of the District, may be executed in any part of the District by any member of the police force . . ..'31 Thus, both custom and statute already assured the availability of District of Columbia police. Furthermore, the legislative history relating to § 879(a) stresses the need for stronger enforcement of the federal narcotics laws, a goal hardly advanced by reducing the forces available to execute those laws. In fact, the provision which is now § 879(b), permitting 'no-knock' searches under certain conditions, was one of the most controversial sections of the entire bill, and was defended primarily by the pressing need for added enforcement weapons to combat the increased drug traffic.32
19
Finally, the interpretation urged by petitioner would leave District of Columbia officers able to execute general federal search warrants under amended Fed.Rule Crim.Proc. 41, but would deny them that authority under the federal drug search statute. Rule 41 now provides that 'a federal law enforcement officer' defined in the Rule to include 'any category of officers authorized by the Attorney General to request the issuance of a search warrant'—may make applications under the Rule. The Attorney General has since listed the Metropolitan Police Department among those agencies which are so authorized.33 If petitioner's contention were accepted, it would seemingly mean that the general search warrant statute applicable to the District of Columbia would govern District of Columbia police officers investigating federal drug cases, but would not govern them when investigating other federal crimes. This result would obtain despite the fact that District of Columbia police officers historically played a prominent role in the enforcement of federal drug laws under 18 U.S.C. § 1405 (1964 ed.).
20
There is little indication that Title 23 of the D.C.Code was intended to serve the sweeping purpose which petitioner attributes to it.34 The search warrant provisions upon which petitioner relies were part of the Court Reform and Criminal Procedure Act, which substantially reorganized the District of Columbia court system, providing for a new local court of general jurisdiction and relieving the United States District Court for the District of Columbia of much of its local burden.35 Prior to that time all local felonies had been tried in the United States District Court, and the Federal Rules of Criminal Procedure by their terms had applied. The creation of the new Superior Court created the need for a new set of procedural rules, and, though some important changes were made, the new rules quite closely tracked the Federal Rules. It does not seem unreasonable, therefore, to suggest that the general provision relating to search warrants, found in D.C.Code § 23—521 et seq. and then incorporated in similar form into the rules36 promulgated Feb. 1, 1971, for the new Superior Court, was intended to be a counterpart to Fed.Rule Crim.Proc. 41. The Federal Rule, as discussed infra, did not apply to narcotics cases in the federal courts since more specific provisions, first of 18 U.S.C. § 1405 (1964 ed.) and then those of 21 U.S.C. § 879(a), controlled.37
21
This conclusion is reinforced by the fact that Federal Rule 41 has been subsequently modified to more closely resemble the District of Columbia statute and rule. The new Federal Rule, though less specific than the local rule, provides that a search warrant must be served in the daytime, 'unless the issuing authority, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at times other than daytime,' and abandons the old, cumbersome positivity standard. The concern for individual privacy revealed in the provisions of the District of Columbia search statute may thus be found in the new Federal Rule as well, but Congress, as it had in the earlier version of the Rule, nevertheless showed its clear intention to leave intact other special search warrant provisions, including, of course, the provisions relating to searches for controlled substances.38 In those limited cases Congress has considered the need for privacy to be counterbalanced by the public need for more effective law enforcement. We do not believe that Congress, by enacting a general search warrant provision for the District of Columbia, has struck a different balance in federal drug cases simply because District of Columbia police officers are involved.
22
We therefore conclude, as did all the judges of the Court of Appeals, that the statute applicable to this case is 21 U.S.C. § 879(a). Our remaining task is to determine whether the requirements of that section have been met.
II
23
'A search warrant relating to offenses involving controlled substances may be served at any time of the day or night if the judge or United States magistrate issuing the warrant is satisfied that there is probable cause to believe that grounds exist for the warrant and for its service at such time.' 21 U.S.C. § 879(a).
24
Only the last seven words of the statute are really in controversy here. Petitioner contends that this language, not found in the predecessor statute, 18 U.S.C. § 1405 (1964 ed.), was intended to require some special showing of need for searches conducted at night rather than during the day. His contention was adopted, at least in part, by Judge Robinson in the Court of Appeals. The Government, on the other hand, contends that it must show only probable cause to believe that the sought-after property will be on the premises at the time of the search, and that if there is probable cause to believe the property will be on the premises at night, such a showing sufficiently meets the requirement imposed by the last seven words of § 879(a).
25
The language of the statute by itself is not crystal clear on this issue. Petitioner insists that the last phrase requires with unmistakable clarity a separate finding of probable cause to justify a nighttime search. Thus, according to petitioner, the issuing magistrate would have to satisfy himself that there was not only probable cause for the search, but also probable cause for believing that the search should be conducted at nighttime rather than during the daytime. While this is a possible meaning, it is by no means the only possible meaning attributable to the words.
26
Petitioner's interpretation really assumes that the statute reads: 'There is probable cause to believe that grounds exist for the warrant and, if served at night, for its service at such time.' But the statute does not include the italicized four words; it makes no distinction whatever between day and night, and literally read would apparently require that a special showing be made for a daytime search as well. The idea that a particularized showing must be made for searches in the daytime is completely novel and lacks even a single counterpart in other search statutes enacted by Congress.
27
Petitioner suggests that since Congress was concerned about the greater intrusion resulting from nighttime searches, it would be logical to apply the language, 'probable cause . . . for its service at such time,' only to nighttime searches. But even this interpretation, which is by no means a literal reading of the language, is not wholly convincing. The traditional limitation placed on nighttime searches, as evident from the earlier language of Rule 41, is to require, not that there be probable cause for searching at night, but that the affiant be positive that the property is in fact located on the property to be searched. Thus Congress' very choice of the words 'probable cause' would indicate that the earlier limitation of 'positivity' was not to apply, while offering no other immediately ascertainable standard for what should constitute 'probable cause' for executing a search warrant during the night.
28
This roundabout way of limiting nighttime searches, if that were in fact the statute's intent, would sharply contrast with the manner in which Congress has required special showings for nighttime searches in other statutes. For example, Title 23 of the D.C.Code, discussed supra, specifies that the warrant 'be executed during the hours of daylight' (emphasis added) unless certain itemized conditions are met. Federal Rule Crim.Proc. 41, as amended in 1972, states: 'The warrant shall be served in the daytime unless the issuing authority, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at times other than daytime.' (Emphasis added.) The fact that Congress, when it has intended to require such special showing for nighttime searches, has done so in language largely free from ambiguity militates against petitioner's assertion that the language of § 879(a) on its face supports his position.
29
The legislative history lends no support to petitioner's interpretation, but in fact cuts the other way. Both the House and the Senate Committee Reports on the bill incorporated a summary prepared by the Department of Justice, where much of the bill's drafting had taken place, which stated:
30
'Spection 702(a) (now § 879(a)) incorporates 18 U.S.C. (s) 1405 and authorizes service of a search warrant at any time of the day or night if probable cause has been established to the satisfaction of the judge or U.S. magistrate issuing the warrant.'39
31
As a previously noted, § 1405 provided that a search warrant could be served at any time of the day or night so long as the issuing officer was 'satisfied that there is probable cause to believe that the grounds for the application exist . . ..' Case law had uniformly interpreted the language to mean that probable cause for the warrant itself was all that was necessary for a nighttime search.40 The officers or agents simply had to establish probable cause for believing that the sought-after property would be found in the place to be searched.
32
There is no suggestion in any of the hearings or debates before Congress that a change from the prior law in this area was intended. The provision itself went unmentioned in the debates and hearings on the bill, a surprising omission if the bill effected the cutback petitioner says it did. Of like import is the fact that in the long and heated discussions over § 702(b), the so-called 'no-knock' provision of the bill, no defender of the bill saw fit to argue that any greater intrusion caused by the no-knock provision would be partially offset by the greater difficulty in obtaining warrants executable at night.41 While congressional silence as to a particular provision of a bill during debates which give extensive consideration to neighboring provisions is not easy to interpret, it would be unusual for such a significant change as that proposed by petitioner to have entirely escaped notice.
33
Finally, it is important to note that the Department of Justice itself submitted this bill to Congress for enactment, including § 879(a) in its present form. Since the hearings and debates stress that a major purpose of the bill was to supply more effective enforcement tools to combat the increasing use of narcotic drugs, it seems totally illogical to suggest that the Department of Justice would submit a bill making it substantially more difficult to control the traffic in hard drugs. Petitioner suggests that this surrender was necessary to convince Congress to bring additional drugs within the Controlled Substances Act, but that theory rests entirely on speculation. There is absolutely no indication in the legislative history that any price had to be paid for what was thought to be a much-desired reorganization and expansion of the drug laws, much less the substantial price that petitioner argues had to be paid here.
34
We therefore conclude that 21 U.S.C. § 879(a) requires no special showing for a nighttime search, other than a showing that the contraband is likely to be on the property or person to be searched at that time.42 We believe that the showing was met in this case. The affidavit submitted by the District of Columbia police officer suggested that there was a continuing traffic of drugs from petitioner's apartment, and a prior purchase through an informer had confirmed that drugs were available. This was sufficient to satisfy 21 U.S.C. § 879(a). The judgment of the Court of Appeals for the District of Columbia Circuit is affirmed.
35
Judgment affirmed.
36
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL concur, dissenting.
37
The petitioner is charged with possession of heroin and narcotics paraphernalia in violation of 21 U.S.C. § 174 (1964 ed.) and 26 U.S.C. § 4704(a) (1964 ed.). He moved the District Court to suppress certain evidence seized from his home pursuant to a search warrant secured by and directed to the Metropolitan Police Department of the District of Columbia. The District Court granted the suppression motion on the ground that the search was conducted at night in violation of D.C.Code §§ 23—521—523 (1973) which limit search warrant execution to daylight hours absent specific contrary authorizaton founded upon the judicial officer's determination
38
'that (A) it cannot be executed during the hours of daylight, (B) the property sought is likely to be removed or destroyed if not seized forthwith, or (C) the property sought is not likely to be found except at certain times or in certain circumstances . . ..' D.C.Code § 23—522(c)(1).1
39
Though the warrant here directed a search 'at any time in the day or night,' none of the grounds set forth in § 23—522(c)(1) were contained in either the application or the warrant itself. The police obtained the warrant on February 11, 1971, but they failed to execute it during the day of February 12, waiting instead until 9:30 p.m. on that date. Since they delayed execution until well after the daylight hours had ended, the seizure was invalid if governed by D.C.Code §§ 23—521 to 23 523.
40
The Court holds, however, that the D.C.Code provisions are inapplicable and that the search is governed by 21 U.S.C. § 879(a). That section became effective October 27, 1970, as part of the Controlled Substances Act, 84 Stat. 1242, 21 U.S.C. § 801 et seq.; it relates to search warrants issued in connection with offenses involving controlled substances. The D.C.Code provisions, however, became effective February 11, 1971, as part of the District of Columbia Court Reform and Criminal Procedure Act. The latter Act did not distinguish between local and federal prosecutions in its procedural innovations.2 The purpose of the restriction upon nighttime searches was to limit such intrusions to those instances where there is 'some justification for it,'3 thus implementing the 'policy generally disfavoring nighttime executions, nighttime intrusions, more characteristic of a 'police state' lacking in the respect for due process and the right of privacy dictated by the U.S. Constitution and history . . ..'4
41
Approximately 60% of the search warrants issued in the District of Columbia relate to narcotics violations. Congress was aware of this, and, if it had intended to except federal narcotics search warrants from the protections against unnecessary nighttime 'police state' searches, one would expect an expression of such intent. I agree with Judge Gesell that no such intent is indicated. Thus, '(w)hatever be the standards generally for issuance of a nighttime search warrant in federal narcotics cases in other parts of the country . . . the existence of 21 U.S.C. § 879(a) does not remove such cases from the explicit requirements for search warrants in the District of Columbia under the newly enacted Title 23, D.C.Code.' 328 F.Supp. 1005, 1007. I would reverse the Court of Appeals and sustain the District Court's suppression order.
42
Mr. Justice MARSHALL, with whom Mr. Justice DOUGLAS and Mr. Justice BRENNAN join, dissenting.
43
I agree with my Brother DOUGLAS that the provisions of the District of Columbia Code requiring a showing of need for execution of a search warrant at night govern the search involved in this case, and, accordingly, I join in his dissenting opinion. A majority of the Court, however, rejects this argument and goes on to discuss the standards imposed by 21 U.S.C. § 879(a) upon issuance of search warrants for nighttime exclusion in federal narcotics cases. Obviously, the Court's interpretation of § 879(a) is of far greater significance, of national rather than purely local concern. I cannot let the Court's construction of § 879(a) pass without registering my dissent on this issue as well.
44
The opinion of the Court, it seems to me, analyzes the § 879(a) issue in a vacuum, without any discussion of some of the important policy considerations which underlie this question of statutory interpretation. Perhaps a partial vacuum would be a more appropriate description, since the Court is obviously fully cognizant of the substantial governmental interest in enforcement of the narcotics laws, an interest which its interpretation of § 879(a) so well serves. But plainly there are other concerns implicated in our interpretation of this congressional enactment restricting the issuance of search warrants the protection of individual privacy which is the very purpose of the statute's search warrant requirement and which of course is given constitutional recognition in the Fourth Amendment. The Court seems totally oblivious to these constitutional considerations. Taking them into account, I find that the only acceptable interpretation of the statute is one which requires some additional justification for authorizing a nighttime search over and above the ordinary showing of probable cause to believe that a crime has been committed and that evidence of the crime will be found upon the search.
45
Fundamentally at issue in this case is the extent of the protection which we will all enjoy from police intrusion into the privacy of our homes during the middle of the night. The Fourth Amendment was intended to protect our reasonable expectations of privacy from unjustified governmental intrusion. Katz v. United States, 389 U.S. 347, 360—362, 88 S.Ct. 507, 517, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). In my view, there is no expectation of privacy more reasonable and more demanding of constitutional protection than our right to expect that we will be let alone in the privacy of our homes during the night. The idea of the police unnecessarily forcing their way into the homes in the middle of the night—frequently, in narcotics cases, without knocking and announcing their purpose—rousing the residents out of their beds, and forcing them to stand by in indignity in their night clothes while the police rummage through their belongings does indeed smack of a "police state' lacking in the respect for . . . the right of privacy dictated by the U.S. Constitution.' S.Rep.No.91—538, p. 12 (1969). The public outrage at the series of mistaken nighttime raids by narcotics agents in Collinsville, Illinois, last April, see N.Y. Times, Apr. 29, 1973, p. 1, col. 5; N.Y. Times, Apr. 30, 1973, p. 30, col. 1, serves to emphasize just how inconsistent with our constitutional guarantees such nighttime searches are.
46
This Court has consistently recognized that the intrusion upon privacy engendered by a search of a residence at night is of an order of magnitude greater than that produced by an ordinary search. Mr. Justice Harlan observed in holding a nighttime search unconstitutional in Jones v. United States, 357 U.S. 493, 498, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958): '(I)t is difficult to imagine a more severe invasion of privacy than the nighttime intrusion into a private home.' In Coolidge v. New Hampshire, 403 U.S. 443, 477, 91 S.Ct. 2022, 2043, 49 L.Ed.2d 564 (1971), the Court again recognized that a midnight entry into a home was an 'extremely serious intrusion.' And our decision in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), was in large part based upon our revulsion at the thought of nighttime searches of the marital bedroom to discover evidence of illegal contraceptive use. See id., at 485—486, 85 S.Ct. at 1682.
47
It is small wonder, then that Congress has consistently required more stringent justification for nighttime searches than that needed to authorize a search during the day. The first congressional enactment setting out comprehensive search warrant procedures, § 10 of Tit. XI of the Espionage Act of 1917, 40 Stat. 217, 229, 18 U.S.C. § 620 (1940 ed.), required that the affiant must be 'positive' that the property to be seized was on the premises to justify a nighttime search. When the provisions of the Espionage Act were replaced by the Federal Rules of Criminal Procedure in 1946, this requirement of positivity was carried forward in Rule 41. Despite the stringency of this requirement, it remained with us until very recently, until the 1972 amendments to Rule 41. And although the Rule was then modified to require 'REASONABLE CAUSE' FOR NIGHTTIME EXECUTIOn of a warrant, significantly the amended Rule retained the principle that nighttime searches require an additional showing of justification over and above probable cause. Congress has also manifested its concern for protection of individual privacy against nighttime searches in its legislation for the District of Columbia, as Mr. Justice DOUGLAS' opinion amply demonstrates with respect to enactment of the D.C. Court Reform and Criminal Procedure Act in 1970. Ante, at 460.1
48
The strong policy underlying these congressional enactments is clear. As even the Government in this case concedes, 'searches conducted in the middle of the night . . . involve a greater intrusion than ordinary searches and therefore require a greater justification.' Brief for United States 14. In my view, this principle may well be a constitutional imperative. It is by now established Fourth Amendment doctrine that increasingly severe standards of probable cause are necessary to justify increasingly intrusive searches. In Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), after holding that search warrants were required to authorize administrative inspections, we held that the quantum of probable cause required for issuance of an inspection warrant must be determined in part by the reasonableness of the proposed search. As Mr. Justice White stated, 'there can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails.' Id., at 536—537, 87 S.Ct., at 1735. The Court in Camara thus approved the issuance of area inspection warrants in part because such searches 'involve a relatively limited invasion of the urban citizen's privacy.' Id., at 537, 87 S.Ct., at 1735. See also Terry v. Ohio, 392 U.S. 1, 20—21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968); Couch v. United States, 409 U.S. 322, 349 n. 6, 93 S.Ct. 611, 626, 34 L.Ed.2d 548 (1973) (Marshall, J., dissenting). I do not regard this principle as a one-way street, to be used only to water down the requirement of probable cause when necessary to authorize governmental intrusions. In some situations—and the search of a private home during nighttime would seem to be a paradigm—this principle requires a showing of additional justification for a search over and above the ordinary showing of probable cause. Cf. Stanford v. Texas, 379 U.S. 476, 485—486, 85 S.Ct. 506, 511—512, 13 L.Ed.2d 431 (1965).
49
Of course, this constitutional question is not presented in this case and need not be resolved here. But the long history of congressional authorization of nighttime searches only upon a showing of additional justification, the strong constitutionally based policy which these statutes implement, and the substantial constitutional question posed by the majority's interpretation of § 879(a) are surely relevant to the question of statutory interpretation with which we are faced. Viewed against this background, I think it is plain that the majority's interpretation of the statute should be rejected.
50
Section 879(a) provides that search warrants may be executed at night only if 'there is probable cause to believe that grounds exist for the warrant and for its service at such time.' It seems to me quite clear that the statute, on its face, imposes two distinct requirements: that there be probable cause for the issuance of the warrant, and that there be cause 'for its service at such time.' While the Court relies on legislative history which suggests that § 879(a) merely 'incorporates' the provisions of its predecessor, 18 U.S.C. § 1405 (1964 ed.), the plain fact is that § 879(a) does far more than this: it also adds to the language of § 1405 the final clause—'and for its service at such time'—which is at the heart of the dispute in this case. I can see no plausible interpretation of this final clause other than that it imposes an additional requirement of justification for a search at night over and above a showing of probable cause.
51
The Court, while conceding this to be a 'possible' meaning of the statute's final clause, argues that 'it is by no means the only possible meaning attributable to the words.' Ante, at 455. Unfortunately, the Court then failes to come forward with any alternative interpretation of these final words of § 879(a). Instead, the Court simply reads the disputed language out of the statute entirely, and decress that the statute shall be interpreted as if it were not there. The Court holds that the statute requires only 'a showing that the contraband is likely to be on the property or person to be searched at that time' to justify nighttime execution of a search warrant. Ante, at 458. But the showing of probable cause required for issuance of any warrant necessarily includes a showing that the objects to be seized will probably be found on the premises at the time of the search. See Sgro v. United States, 287 U.S. 206, 210—211, 53 S.Ct. 138, 140, 77 L.Ed. 260 (1932); Schoeneman v. United States, 115 U.S.App.D.C. 110, 113, 317 F.2d 173, 176—177 (1963); Rosencranz v. United States, 356 F.2d 310, 315—318 (CA1 1966). This requirement is clearly imposed by the Fourth Amendment itself. It is also clearly mandated by the first part of the statutory language, which merely incorporates the constitutional requirement of probable cause for issuance of the warrant. The majority's interpretation of the statute thus leaves the final clause of § 879(a)—the language in controversy here—totally without meaning. See United States v. Thomas, 294 A.2d 164, 170 (DC Ct.App.) (Kelly, J., dissenting), cert. denied, 409 U.S. 992, 93 S.Ct. 341, 34 L.Ed.2d 258 (1972); United States v. Gooding, 155 U.S.App.D.C. 259, 273, 477 F.2d 428, 442 (1973) (Robinson, J., concurring in result). I cannot subscribe to such an evisceration of the statute.2
52
The Court bases is holding upon the meager recorded legislative history of § 879(a). But when the language of a statute is as clear and unambiguous as it is here, it is neither helpful nor appropriate to look to its legislative history. Ex parte Collett, 337 U.S. 55, 61, 69 S.Ct. 944, 947, 93 L.Ed. 1207 (1949); United States v. Oregon, 366 U.S. 643, 648, 81 S.Ct. 1278, 1281, 6 L.Ed.2d 575 (1961). While committee reports in particular are often a helpful guide to the meaning of ambiguous statutory language, even they must be disregarded if inconsistent with the plain language of the statute. Helvering v. City Bank Farmers Trust Co., 296 U.S. 85, 89, 56 S.Ct. 70, 72, 80 L.Ed. 62 (1935); George Van Camp & Sons Co. v. American Can Co., 278 U.S. 45, 253 254, 49 S.Ct. 112, 113, 73 L.Ed. 31 (1929). It is the language of the statute, as enacted by the Congress, that is the law of the land, not the language of a committee report which may or may not represent accurately the views of the hundreds of other legislators who voted for the bill.
53
In any event, even if resort to examination of the legislative history were appropriate here, I do not find it nearly so conclusive as does the majority of the Court. The Court relies on a single brief statement on § 879(a) in the committee report stating that the statute merely incorporated the provisions of § 1405, which had been construed not to impose any requirement for a nighttime search warrant over and above probable cause. Yet this statement fails to provide any explanation for the language which Congress added to § 1405, the language in controversy here. As to the meaning—or, as the Court would have it, the lack of meaning—of this language, the Court relies basically upon the law enforcement goals of the Department of Justice and the silence of Congress. But, as we have frequently warned, '(i)t is at best treacherous to find in Congressional silence alone the adoption of a controlling rule of law.' Girouard v. United States, 328 U.S. 61, 69, 66 S.Ct. 826, 830, 90 L.Ed. 1084 (1946); see H.M. Hart & A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1395—1398 (tent. ed. 1958), and cases there cited. The Court in effect presumes from Congress' failure to explain the meaning of the final clause of § 879(a) its acquiescence in the Justice Department's apparent view that this language in fact serves no purpose.
54
I would presume the contrary. Congress' consistent protection of nighttime privacy by imposing restrictions upon the availability of warrants for nighttime searches reinforces the unambiguous statutory language. Both lead me to the conclusion that the final clause of § 879(a) must be viewed as another congressional manifestation of its strong policy against nighttime intrusions into the home. I do not think that this interpretation is at all inconsistent with the narcotics law-enforcement objectives which were the principal focus of this legislation. The requirement that cause be shown for the necessity of a nighttime search is still a substantial easing of the requirement of positivity which was then embodied in Rule 41, and which would otherwise have applied to many of the searches now covered by § 879(a). I respectfully dissent.
1
The Government contends that even though we were to determine that the applicable statutory provision was violated in this case, the evidence should nonetheless not be suppressed. Since we conclude that the seizure was consistent with the governing statute, we have no occasion to reach this alternative argument.
2
See 155 U.S.App.D.C. 259, 261, 477 F.2d 428, 430 (1973), quoting from 328 F.Supp. 1005, 1008 (DC 1971).
3
'§ 33—414. Search warrants—Requirements—Form—Contents Return—Penalty for interfering with service.
'(a) A search warrant may be issued by any judge of the Superior Court of the District of Columbia or by a United States commissioner for the District of Columbia when any narcotic drugs are manufactured, possessed, controlled, sold, prescribed, administered, dispensed, or compounded, in violation of the provisions of this chapter, and any such narcotic drugs and any other property designed for use in connection with such unlawful manufacturing, possession, controlling, selling, prescribing, administering, dispensing, or compounding, may be seized thereunder, and shall be subject to such disposition as the court may make thereof and such narcotic
drugs may be taken on the warrant from any house or other place in which they are concealed.
'(b) A search warrant cannot be issued but upon probable cause supported by affidavit particularly describing the property and the place to be searched.
'(c) The judge or commissioner must, before issuing the warrant, examine on oath the complainant and any witnesses he may produce, and require their affidavits or take their depositions in writing and cause them to be subscribed by the parties making them.
'(d) The affidavits or depositions must set forth the facts tending to establish the grounds of the application or probable cause for believing that they exist.
'(e) If the judge or commissioner is thereupon satisfied of the existence of the grounds of the application or that there is probable cause to believe their existence, he must issue a search warrant, signed by him, to the major and superintendent of police of the District of Columbia or any member of the Metropolitan police department, stating the particular grounds or probable cause for its issue and the names of the persons whose affidavits have been taken in support thereof, and commanding him forthwith to search the place named for the property specified and to bring it before the judge or commissioner.
'(f) A search warrant may in all cases be served by any of the officers mentioned in its direction, but by no other person, except in aid of the officer on his requiring it, he being present and acting in its execution.
'(g) The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute the warrant, if, after notice of his authority and purpose, he is refused admittance.
'(h) The judge or commissioner shall insert a direction in the warrant that it may be served at any time in the day or night.'
4
'§ 23—521. Nature and issuance of search warrants
'(a) Under circumstances described in this subchapter, a judicial officer may issue a search warrant upon application of a law enforcement officer or prosecutor. A warrant may authorize a search to be conducted anywhere in the District of Columbia and may be executed pursuant to its terms.
'(b) A search warrant may direct a search of any or all of the following:
'(1) one or more designated or described places or premises;
'(2) one or more designated or described vehicles;
'(3) one or more designated or described physical objects; or
'(4) designated persons.
'(c) A search warrant may direct the seizure of designated property or kinds of property, and the seizure may include, to such extent as is reasonable under all the circumstances, taking physical or other impressions, or performing chemical, scientific, or other tests or experiments of, from, or upon designated premises, vehicles, or objects.
'(b) Property is subject to seizure pursuant to a search warrant if there is probable cause to believe that it—
'(1) is stolen or embezzled;
'(2) is contraband or otherwise illegally possessed;
'(3) has been used or is possessed for the purpose of being used, or is designed or intended to be used, to commit or conceal the commission of a criminal offense; or
'(4) constitutes evidence of or tends to demonstrate the commission of an offense or the identity of a person participating in the commission of an offense.
'(e) A search warrant may be addressed to a specific law enforcement officer or to any classification of officers of the Metropolitan Police Department of the District of Columbia or other agency authorized to make arrests or execute process in the District of Columbia.
'(f) A search warrant shall contain—
'(1) the name of the issuing court, the name and signature of the issuing judicial officer, and the date of issuance;
'(2) if the warrant is addressed to a specific officer, the name of
that officer, otherwise, the classifications of officers to whom the warrant is addressed;
'(3) a designation of the premises, vehicles, objects, or persons to be searched, sufficient for certainty of identification;
'(4) a description of the property whose seizure is the object of the warrant;
'(5) a direction that the warrant be executed during the hours of daylight or, where the judicial officer has found cause therefor, including one of the grounds set forth in section 23 522(c)(1), an authorization for execution at any time of day or night;
'(6) where the judicial officer has found cause therefor, including one of the grounds set forth in subparagraph (A), (B), or (D) of section 23—591(c)(2), an authorization that the executing officer may break and enter the dwelling house or other building or vehicles to be searched without giving notice of his identity and purpose; and
'(7) a direction that the warrant and an inventory of any property seized pursuant thereto be returned to the court on the next court day after its execution.
§ 23—522. Applications for search warrants
'(a) Each application for a search warrant shall be made in writing upon oath or affirmation to a judicial officer.
'(b) Each application shall include—
'(1) the name and title of the applicant;
'(2) a statement that there is probable cause to believe that property of a kind or character described in section 23—521(d) is likely to be found in a designated premise, in a designated vehicle or subject, or upon designated persons;
'(3) allegations of fact supporting such statement; and
'(4) a request that the judicial officer issue a search warrant directing a search for and seizure of the property in question.
'The applicant may also submit depositions or affidavits of other persons containing allegations of fact supporting or tending to support those contained in the application.
'(c) The application may also contain—
'(1) a request that the search warrant be made executable at any hour of the day or night, upon the ground that there is probable
cause to believe that (A) it cannot be executed during the hours of daylight, (B) the property sought is likely to be removed or destroyed if not seized forthwith, or (C) the property sought is not likely to be found except at certain times or in certain circumstances; and
'(2) a request that the search warrant authorize the executing officer to break and enter dwelling houses or other buildings or vehicles to be searched without giving notice of his identity and purpose, upon probable cause to believe that one of the conditions set forth in subparagraph (A), (B), or (D) of section 23—591(c)(2) is likely to exist at the time and place at which such warrant is to be executed.
'Any request made pursuant to this subsection must be accompanied and supported by allegations of fact supporting such request.'
5
At the time of the search in this case Rule 41 read, in part, as follows:
'Search and Seizure
'(a) Authority to Issue Warrant. A search warrant authorized by this rule may be issued by a judge of the United States or of a state, commonwealth or territorial court of record or by a United States commissioner within the district wherein the property sought is located.
'(b) Grounds for Issuance. A warrant may be issued under this rule to search for and seize and property
'(1) Stolen or embezzled in violation of the laws of the United States; or
'(2) Designed or intended for use or which is or has been used as the means of committing a criminal offense; or
'(3) Possessed, controlled, or designed or intended for use or which is or has been used in violation of Title 18, U.S.C., § 957.
'(c) Issuance and contents. A Warrant shall issue only on affidavit sworn to before the judge or commissioner and establishing the grounds for issuing the warrant. If the judge or commissioner is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property and naming or describing the person or place to be searched. The warrant shall be directed to a civil officer
of the United States authorized to enforce or assist in enforcing any law thereof or to a person so authorized by the President of the United States. It shall state the grounds or probable cause for its issuance and the names of the persons whose affidavits have been taken in support thereof. It shall command the officer to search forthwith the person or place named for the property specified. The warrant shall direct that it be served in the daytime, but if the affidavits are positive that the property is on the person or in the place to be searched, the warrant may direct that it be served at any time. It shall designate the district judge or the commissioner to whom it shall be returned.
'(g) Scope and Definition. This rule does not modify any act, inconsistent with it, regulating search, seizure and the issuance and execution of search warrants in circumstances for which special provision is made. The term 'property' is used in this rule to include documents, books, papers and any other tangible objects.'
6
Rule 41 has since been amended to read, in part:
'(a) Authority to issue warrant. A search warrant authorized by this rule may be issued by a federal magistrate or a judge of a state within the district wherein the property sought is located, upon request of a federal law enforcement officer or an attorney for the government.
'(b) Property which may be seized with a warrant. A warrant may be issued under this rule to search for and seize any (1) property that constitutes evidence of the commission of a criminal offense; or (2) contraband, the fruits of crime, or things otherwise criminally possessed; or (3) property designed or intended for use or which is or has been used as the means of committing a criminal offense.
'(c) Issuance and contents. A warrant shall issue only on an affidavit or affidavits sworn to before the federal magistrate or state judge and establishing the grounds for issuing the warrant. If the federal magistrate or state judge is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property and
naming or describing the person or place to be searched. The finding of probable cause may be based upon hearsay evidence in whole or in part. Before ruling on a request for a warrant the federal magistrate or state judge may require the affiant to appear personally and may examine under oath the affiant and any witnesses he may produce, provided that such proceeding shall be taken down by a court reporter or recording equipment and made part of the affidavit. The warrant shall be directed to a civil officer of the United States authorized to enforce or assist in enforcing any law thereof or to a person so authorized by the President of the United States. It shall command the officer to search, within a specified period of time not to exceed 10 days, the person or place named for the property specified. The warrant shall be served in the daytime, unless the issuing authority, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at times other than daytime. It shall designate a federal magistrate to whom it shall be returned.
'(h) Scope and definition. This rule does not modify and act, inconsistent with it, regulating search, seizure and the issuance and execution of search warrants in circumstances for which special provision is made. The term 'property' is used in this rule to include documents, books, papers and any other tangible objects. The term 'daytime' is used in this rule to mean the hourse from 6:00 a.m. to 10:00 p.m. according to local time. The phrase 'federal law enforcement officer' is used in this rule to mean any government agent, other than an attorney for the government as defined in Rule 54(c), who is engaged in the enforcement of the criminal laws and is within any category of officers authorized by the Attorney General to request the issuance of a search warrant.
7
§ 10, 40 Stat. 229.
8
'21 U.S.C. § 879. Search warrants.
'(a) A search warrant relating to offenses involving controlled substances may be served at any time of the day or night if the
9
'§ 1405. Issuance of search warrants—procedure.
'In any case involving a violation of any provision of part I or part II of subchapter A of chapter 39 of the Internal Revenue Code of 1954 the penalty for which is provided in subsection (a) or (b) of section 7237 of such Code, a violation of subsection (c), (h), or (i) of section 2 of the Narcotic Drugs Import and Export Act, as amended (21 U.S.C., sec. 174), or a violation of the Act of July 11, 1941, as amended (21 U.S.C., sec. 184a)—
'(1) a search warrant may be served at any time of the day or night if the judge or the United States Commissioner issuing the warrant is satisfied that there is probable cause to believe that the grounds for the application exist, and
'(2) a search warrant may be directed to any officer of the Metropolitan Police of the District of Columbia authorized to enforce or assist in enforcing a violation of any of such provisions.'
10
See, e.g., H.R.Rep.No.2546, 84th Cong., 2d Sess., 16 (1956).
11
See, e.g., United States v. Stallings, 413 F.2d 200 (CA7), cert. denied, 396 U.S. 972, 90 S.Ct. 460, 24 L.Ed.2d 440 (1969); United States v. Castle, 213 F.Supp. 52 (DC 1962).
Our Brother MARSHALL in his dissenting opinion stresses Congress' continuing concern for individual privacy, as demonstrated by the
limitations on nighttime searches contained in the Espionage Act, supra, and, later, Fed.Rule Crim.Proc. 41. The implication seems to be that this concern must be read into the provisions of 21 U.S.C. § 879(a) to reach the interpretation for which he argues. But this argument totally ignores the fact that Congress, in 1956, enacted a statute governing searches for dangerous drugs which deliberately removed the stricter limitations on night searches found in Rule 41. Our construction of the principal statute considered in this case, 21 U.S.C. § 879(a), therefore, represents no novel departure from previous congressional policy in this area, but is, on the contrary, consistent with the conceded meaning of the statute which governed federal drug searches for almost 15 years.
12
The affidavit read in full:
'BEFORE Lawrence S. Margolis, Wash., D.C. The undersigned being duly sworn deposes and says:
'That he (has reason to believe) that (on the premises known as) 1419 Chapin Street, N.W., as you enter the building last apartment on the right next to the elevator on the first floor Washington in the district of Columbia there is now being concealed certain property, namely heroin, syringes, tourniquets, cookers and paraphernalia used in the preparation of heroin for retail and any other paraphernalia used in the preparation and dispensation of heroin and any other narcotic drugs illegally held, which are in violation of Title 26 U.S.Code Section 4704(a).
'And that the facts tending to establish the foregoing grounds
for issuance of a Search Warrant are as follows: See the facts set forth in the affidavit attached hereto and made a part hereof.
/s/ Marion L. Green
MARION L. GREEN
MPD'
13
The affidavit states specifically:
'I, the undersigned officer who is assigned to the Third District Vice Squad, Metropolitan Police Department, and working in the City of Washington, D.C. in an undercover capacity where illegal drugs are sold and possessed in violation of the United States Code, Title 26, Section 4704a. Had the occasion to investigate the following offense.'
14
The warrant read in its entirety:
'To Chief of Police or any Member of MPDC
'Affidavit having been made before me by Plc. Marrion [sic] L. Green, Jr. Third District Vice Squad that he (has reason to believe) that (on the premises known as) 1419 Chapin Street, N.W., as you enter the building last apartment on the right next to the elevator on the first floor, Washington in the District of Columbia, there is now being concealed certain property, namely, heroin, capsules, envelopes, syringes, tourniquets, cookers and paraphernalia used in the preparation of heroin for distribution or use and any other instrumentalities or evidence of illegal possession or dispensation of heroin or of any other narcotic drugs illegally held. See the facts set forth in the affidavit attached hereto and made a part hereof which are in violation of Title 26 Section 4704(a) of the U.S.Code, and as I am satisfied that there is probable cause to believe that the property so described is being concealed on the (premises) above
described and that the foregoing grounds for application for issuance of the search warrant exist.
'You are hereby commanded to search forthwith the (place) named for the property specified, serving this warrant and making the search (at any time in the day or nignt [*]) and if the property be found there to seize it, leaving a copy of this warrant and a receipt for the property taken, and prepare a written inventory of the property seized and return this warrant and bring the property before me within ten days of this date, as required by law.
'Dated this day of Feb. 11, 1971
/s/ Lawrence S. Margolis
U.S. Commissioner'
[*] 'The Federal Rules of Criminal Procedure provide: 'The warrant shall direct that it be served in the daytime, but if the affidavits are positive that the property is on the person or in the place to be searched, the warrant may direct that it be served at any time.' (Rule 41C).'
15
Reply Brief for Petitioner 8.
16
The Government contends in its brief, apparently for the first time in the course of this litigation, that the search was not in fact a nighttime search. The primary basis for this argument is revised Fed.Rule Crim.Proc. 41 which states that '(t)he term 'daytime' is used in this rule to mean the hours from 6:00 a.m. to 10:00 p.m. according to local time.' See n. 6, supra. In view of our conclusion
that the standards for a nighttime as well as a daytime search under 21 U.S.C. § 879(a) were met in this case, we do not need to resolve this issue.
17
'§ 4704. Packages.
'(a) General requirement.
'It shall be unlawful for any person to purchase, sell, dispense, or distribute narcotic drugs except in the original stamped package or from the original stamped package; and the absence of appropriate taxpaid stamps from narcotic drugs shall be prima facie evidence of a violation of this subsection by the person in whose possession the same may be found.'
18
'§ 174. Same; penalty; evidence.
'Whoever fraudulently or knowingly imports or brings any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law, or conspires to commit any of such acts in violation of the laws of the United States, shall be imprisoned not less than five or more than twenty years and, in addition, may be fined not more than $20,000. For a second or subsequent offense (as determined under section 7237(c) of the Internal Revenue Code of 1954), the offender shall be imprisoned not less than ten or more than forty years and, in addition, may be fined not more than $20,000.'
19
Petitioner also contended that the officers entered the apartment without knocking and without having a 'no-knock' warrant and that the police had no probable cause to search him. Neither court below passed upon the sufficiency of these contentions, and they are not before us here.
20
328 F.Supp., at 1007.
21
Id., at 1008 n. 1.
22
Id., at 1008.
23
155 U.S.App.D.C. 259, 477 F.2d 428 (1973).
24
Judge Wilkey stated in his opinion: 'We hold that the applicable statute, 21 U.S.C. § 879(a), requires only a showing of probable cause to believe that the narcotics will be found on the premises at any time of the day or night.' Id., at 266, 477 F.2d, at 435. Judge Fahy in his opinion stated: 'Thus, in the case of narcotics, previously under Section 1405(1) and later under Section 879(a), if the judge was satisfied 'that there is probable cause to believe' rather than 'if the affidavits are positive' that the 'property is on the person or in the place to be searched,' the warrant could permit execution at any time.' Id., at 268, 477 F.2d, at 437.
25
Judge Robinson concluded: 'The test of reasonable cause for nighttime execution does not demand a demonstration that drugs are positively on the premises at night, or that they could be found on the premises only at night, or that for some reason a search would be impossible in the daytime. It does summon some factual basis for a prudent conclusion that the greater intrusiveness of nighttime execution of the warrant is justified by the exigencies of the situation.' Id., at 274, 477 F.2d, at 443. Judge Robinson then went on to find that a proper showing had been made in this case. He stated: 'Where, as here, it appears that a search is calculated not only to garner evidence of past crime but also to terminate a serious species of ongoing criminality, reasonable cause for a nocturnal intrusion is demonstrated.' Id., at 275, 477 F.2d, at 444.
26
We are therefore not required to reach the Government's argument that, despite the fact that the application for the search warrant alleged a violation of the United States Code, the search could be justified under D.C. Code § 33—414 as a search for violations of local drug laws.
27
The provisions of 21 U.S.C. § 879(a) prevail over the provisions of Fed.Rule Crim.Proc. 41 when controlled substances are involved. See nn. 10 and 11, supra.
28
See n. 9, supra.
29
For example, John Ingersoll, Director of the Bureau of Narcotics and Dangerous Drugs, stated at the Hearings on Drug Abuse Control Amendments—1970 before the Subcommitted on Public Health and Welfare of the House Committee on Interstate and Foreign Commerce, 91st Cong., 2d Sess., ser. 91—45, pt. 1, p. 86 (1970), that the no-knock provision, incorporate in § 702(b) of the proposed bill, see n. 32, infra, would grant authority 'restricted to special agents of the Bureau of Narcotics and Dangerous Drugs.' Serial No. 91—45, p. 86. In addition, the preceding provision of the bill set forth expanded powers for the agents of the BNDD. However, although these excerpts would argue for petitioner's position here, we believe that the Government's position ultimately proves to be stronger. We believe for the reasons stated in the text that the emphasis on the powers of the BNDD agents was not intended to remove powers from other federal agents who had previously assisted in the enforcement of federal drug laws. See also 15 U.S.C. §§ 3052, 3053, and 3056, setting forth arrest powers for agents of the Federal Bureau of Investigation, United States marshals, and Secret Service agents.
30
S.Rep.No.91—613, p. 3 (1969).
31
D.C.Code § 4—138 provides:
'Any warrant for search or arrest, issued by any magistrate of the District, may be executed in any part of the District by any member of the police force, without any backing or indorsement of the warrant, and according to the terms thereof; and all provisions of law in relation to bail in the District shall apply to this chapter.' See Thomas v. United States, 409 U.S. 992, 993, 93 S.Ct. 341, 448, 34 L.Ed.2d 258, 296 (1973) (Douglas, J., dissenting).
32
'§ 879. Search warrants.
'(b) Any officer authorized to execute a search warrant relating to offenses involving controlled substances the penalty for which is imprisonment for more than one year may, without notice of his authority and purpose, break open an outer or inner door or window of a building, or any part of the building, or anything therein, if the judge or United States magistrate issuing the warrant (1) is satisfied that there is probable cause to believe that (A) the property sought may and, if such notice is given, will be easily and quickly destroyed or disposed of, or (B) the giving of such notice will immediately endanger the life or safety of the executing officer or another person, and (2) has included in the warrant a direction that the officer executing it shall not be required to give such notice. Any officer acting under such warrant, shall, as soon as practicable after entering the premises, identify himself and give the reasons and authority for her entrance upon the premises.'
See H.R.Rep.No.91—1444, p. 25 (1970), 1970 U.S.Code Cong. & Admin.News, p. 4591, which stated:
'The purpose of this provision (the noknock provision), as explained in the hearings, is to provide law enforcement officials with a tool to aid in combatting the illicit traffic in drugs which has proved helpful in all of the 29 States where this authority exists either by statute or common law.'
33
See Atty.Gen. Order 510—73, 38 Fed.Reg. 7244—7245.
34
The effect of Title 23 on other statutes was debated in some detail below. Judge Wilkey in his opinion noted that the provisions of 21 U.S.C. § 879(a) were not only enacted after the provisions of Title 23 (although they took effect sooner), but also are more specific in terms of subject matter, i.e., drug control. 155 U.S.App.D.C., at 262, 477 F.2d, at 431. Thus, as a matter of statutory construction, it is somewhat difficult to see how Title 23 was intended to modify any later, more specific statute. Petitioner no longer suggests that Title 23 must be read into the provisions of 21 U.S.C. § 879(a). He contends either that Title 23 is applicable in its entirety or that § 879(a) by its own terms requires a special showing for searches at night.
35
D.C.Code § 11-901.
36
'Rule 41. Search and Seizure.
'(a) Authority to Ussue Warrant. A search warrant authorized by this rule may be issued by a judge of the Superior Court.
'(b) Grounds for Issuance. A warrant may be issued under this rule to search for and seize property. Property is subject to seizure pursuant to a search warrant if there is probable cause to believe that it (1) is stolen or embezzled; or (2) is contraband or otherwise illegally possessed; or (3) has been used or is possessed for the purpose of being used, or is designed or intended to be used, to commit or conceal the commission of an offense; or (4) constitutes evidence of or tends to demonstrate the commission of an offense or the identity of a person participating in the commission of an offense.
'(c) Application for Search Warrants. Each application for a search warrant shall be made in writing upon oath to a judge of the Superior Court. Each application shall include the name and title of the applicant; a statement that there is probable cause to believe that property described in paragraph (b) as subject to seizure is likely to be found in a designated premise, in a designated vehicle or object, or upon designated persons; allegations of fact supporting such statement; and a request that the judge issue a search warrant directing a search for and seizure of the property in question. The applicant may also submit depositions or affidavits of other persons containing allegations of fact supporting or tending to support those contained in the application.
'The application may also contain (1) a request that the search warrant be made executable at any hour of the day or night, upon the ground that (i) there is probable cause to believe that it cannot be executed during the hours of daylight, or (ii) the property sought is likely to be removed or destroyed if not seized forthwith, or (iii) the property sought is not likely to be found except at certain times or in certain circumstances; and (2) a request approved by an appropriate prosecutor that the search warrant authorize the executing officer to break and enter dwelling houses or other buildings or vehicles to be searched without giving notice of his identity and purpose, upon probable cause to believe that one of the conditions listed in subparagraphs (a), (b), or (d) of D.C.Code § 23—591(c)(2) is likely to exist at the time and place at which such warrant is to be executed whereby the applicant may dispense with such requirement. Any request that a search warrant be executable at any time of the day or night or that a search warrant authorize the executing officer to break and enter without a prior announcement of his identity and purpose must be accompanied and supported by allegations of fact supporting such request.' Effective Oct. 25, 1973, paragraph (b) of this rule was amended. Paragraphs (a) and (c) were unchanged.
37
We note that the District of Columbia Court of Appeals has indicated that the specific provisions of Title 33 are not qualified by the more general provisions of Title 23 in searches for violations of the local drug laws in the District of Columbia. See United States v. Thomas, D.C.App., 294 A.2d 164, 167—168, cert. denied, 409 U.S. 992, 93 S.Ct. 341, 34 L.Ed.2d 258 (1973).
38
See Fed.Rule Crim.Proc. 41(h), supra, n. 6. See also subsection (g) of prior Rule 41, n. 5, supra.
39
S.Rep.No.91—613, pp. 30—31 (1969). See also H.R.Rep.No.91 1444, pt. 1, p. 54 (1970).
40
See n. 11, supra.
41
The debates on this controversial proposal may be found generally in volume 116 of the Congressional Record. See, e.g., 116 Cong.Rec. 1159—162, 1164—1177, 33639—33645.
42
We note that the Court of Appeals for the Fifth Circuit has recently reached the same conclusion. See United States v. Thomas, 489 F.2d 664 (1973).
1
D.C.Code § 23—523(b) directs that all search warrants are to be executed only during daylight hours, absent express authorization pursuant to D.C.Code § 23—521(f). Section 23 521(f)(5) allows authorization for nighttime execution where the 'judicial officer has found cause therefor, including one of the grounds set forth in section 23—522(c)(1) . . ..'
2
Thus various rules are applicable in the United States District Court for the District of Columbia which are not applicable in district courts elsewhere in the country. See, e.g., D.C.Code § 23—1322, dealing with detention prior to trial.
3
Hearings on Crime in the National Capital before the Senate Committee on the District of Columbia, 91st Cong., 1st Sess., pt. 4, p. 1404 (1969).
4
S.Rep.No.91—538, p. 12 (1969).
1
Similarly, most of the States' laws provide that search warrants may only be served during the day unless express authorization for a nighttime search is obtained, and such authorization can generally be obtained only by meeting special requirements for a nighttime search. See L. Hall, Y. Kamisar, W. LaFave & J. Israel, Modern Criminal Procedure 259 (3d ed. 1969).
2
In an effort to conjure up ambiguity in the statutory language, the Court argues that the statute could have been drawn with more precision, and specifically points out that read literally, the statutory requirement of cause 'for its service at such time' would seem to apply to daytime searches as well as those conducted at night. Ante, at 455—456. I readily agree that the statute could have been more artfully drafted, but the fact that it could have been stated in different words hardly justifies disregarding the plain meaning of the statutory language with which we must deal. It ill suits the Court to suggest that this language is ambiguous when the Court is unable to come forward with any plausible alternative construction.
The Court's suggestion that the statute is ambiguous because it could be literally applied to daytime searches as well as those during the night is wholly insubstantial. As the Court well knows, no one has ever proposed that an additional burden of justification for daytime searches is necessary or appropriate; in sharp contrast, the Congress has consistently acted to protect nighttime privacy through such an additional burden on nighttime searches. The Court's confusion arises only because the words 'at such time' in the statute logically refer back to its authorization of service 'at any time of the day or night.' But this latter phrase has consistently been used in congressional eanctments as a shorthand expression for a warrant whose service at night is authorized, see, e.g., D.C.Code § 33—414(h), ante, at 433, n. 3; §§ 23—521(f)(5), 23—522(c)(1), ante, at 435—436, n. 4; cf. former Fed.Rule Crim.Proc. 41(c), ante, at 436—437, n. 5, to distinguish such a warrant from any other warrant, which may be served only in the day. Plainly the statute's requirement of cause 'for its service at such time' was intended to apply only to nighttime execution of search warrants.
As for the Court's complaint that a requirement of cause for nighttime service of a warrant is not the 'traditional limitation' imposed upon nighttime searches, it should suffice to point out that Congress became aware in its consideration of the D.C. Court Reform and Criminal Procedure Act in 1969 that a requirement of cause would provide greater protection for nighttime privacy than the old positivity test, by eliminating unnecessary nighttime searches regardless of how sure police were of their basis for the search. See Hearings on Crime in the National Capital before the Senate Committee on the District of Columbia, 91st Cong., 1st Sess., pt. 4, p. 1404 (1969); Brief for United States 49—50. This change was therefore incorporated into the D.C.Code, see D.C.Code §§ 23—521 to 23—523. It was also adopted in the 1972 amendment to Rule 41. It would hardly be surprising for the Congress to introduce a modification along the same lines into § 879(a).
| 01
|
416 U.S. 470
94 S.Ct. 1879
40 L.Ed.2d 315
KEWANEE OIL COMPANY, Petitioner,v.BICRON CORPORATION et al.
No. 73—187.
Argued Jan. 9, 1974.
Decided May 13, 1974.
Syllabus
Harshaw Chemical Co., an unincorporated division of petitioner, over a period of years developed certain processes in the growth and encapsulation of synthetic crystals and purification of raw materials, some of which processes were considered to be trade secrets; it eventually succeeded for the first time in growing a 17-inch crystal of a type useful in the detection of ionizing radiation. The individual respondents, former employees of Harshaw who while working there had signed agreements not to disclose trade secrets obtained as employees, formed or later joined respondent Bicron Corp., which competed with Harshaw in producing crystals; Bicron, soon after its formation, also grew a 17-inch crystal. Petitioner brought this diversity action seeking injunctive relief and damages for misappropriation of trade secrets. The District Court, applying Ohio trade secret law, granted a permanent injunction. The Court of Appeals reversed on the ground that Ohio's trade secret law conflicted with the federal patent laws. Held: Ohio's trade secret law is not pre-empted by the federal patent laws. Pp. 474—493.
(a) The States are not forbidden to protect the kinds of intellectual property that may make up the subject matter of trade secrets; just as the States may exercise regulatory power over writings, Goldstein v. California, 412 U.S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163, so may they regulate with respect to discoveries, the only limitation being that regulation in the area of patents and copyrights must not conflict with the operation of federal laws in this area. Pp. 478—479.
(b) Abolition of trade secret protection would not result in increased disclosure to the public of discoveries in the area of nonpatentable subject matter, and the public would not be benefited by disclosure of such discoveries. Pp. 482—483.
(c) The federal patent policy of encouraging invention is not disturbed by the existence of another form of incentive to invention such as trade secret protection, and in this respect the two system are not in conflict. P. 484.
(d) Nor is the patent policy that matter once in the public domain must remain there incompatible with the existence of trade secret protection. P. 484.
(e) Nor is there any conflict between trade secret law and the patent policy of disclosure whether a trade secret concerning patentable subject matter is in the category of discovery which is (1) clearly unpatentable, (2) doubtfully patentable, or (3) clearly patentable. As to the first category, the patent alternative is not available and trade secret law will encourage invention and prompt the innovator to proceed with the discovery and exploitation of his invention, and to license others to exploit secret processes. As to the second category, the risk and cost of eventual patent invalidity may impel the inventor not to seek patent protection regardless of the existence of trade secret law, and the encouragement by the elimination of trade secret protection of patent applications by some with doubtfully patentable inventions is likely to have a deleterious effect on society and patent policy. As to the third category, trade secret law, which affords weaker protection than the patent laws, presents no reasonable risk of deterrence from patent application. Pp. 484—491.
(f) There being no real possibility that trade secret law will conflict with federal patent policy, partial pre-emption as to clearly patentable inventions would not be appropriate and could well unnecessarily burden administration of trade secret law by States. Pp. 491—492.
478 F.2d 1074, reversed and remanded for reinstatement of District Court Judgment.
Erwin N. Griswold, Washington, D.C., for petitioner.
William C. McCoy, Jr., Cleveland, Ohio, for respondents.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari to resolve a question on which there is a conflict in the courts of appeals: whether state trade secret protection is pre-empted by operation of the federal patent law.1 In the instant case the Court of Appeals for the Sixth Circuit held that there was pre-emption.2 The Courts of Appeals for the Second, Fourth, Fifth and Ninth Circuits have reached the opposite conclusion.3
2
* Harshaw Chemical Co., an unincorporated division of petitioner, is a leading manufacturer of a type of synthetic crystal which is useful in the detection of ionizing radiation. In 1949 Harshaw commenced research into the growth of this type crystal and was able to produce one less than two inches in diameter. By 1966, as the result of expenditures in excess of $1 million, Harshaw was able to grow a 17-inch crystal, something no one else had done previously. Harshaw had developed many processes, procedures, and manufacturing techniques in the purification of raw materials and the growth and encapsulation of the crystals which enabled it to accomplish this feat. Some of these processes Harshaw considers to be trade secrets.
3
The individual respondents former employees of Harshaw who formed or later joined respondent Bicron. While at Harshaw the individual respondents executed, as a condition of employment, at least one agreement each, requiring them not to disclose confidential information or trade secrets obtained as employees of Harshaw. Bicron was formed in August 1969 to compete with Harshaw in the production of the crystals, and by April 1970, had grown a 17-inch crystal.
4
Petitioner brought this diversity action in United States District Court for the Northern District of Ohio seeking injunctive relief and damages for the misappropriation of trade secrets. The District Court, applying Ohio trade secret law, granted a permanent injunction against the disclosure or use by respondents of 20 of the 40 claimed trade secrets until such time as the trade secrets had been released to the public, had otherwise generally become available to the public, or had been obtained by respondents from sources having the legal right to convey the information.
5
The Court of Appeals for the Sixth Circuit held that the findings of fact by the District Court were not clearly erroneous, and that it was evident from the record that the individual Respondents appropriated to the benefit of Bicron secret information on processes obtained while they were employees at Harshaw. Further, the Court of Appeals held that the District Court properly applied Ohio law relating to trade secrets. Nevertheless, the Court of Appeals reversed the District Court, finding Ohio's trade secret law to be in conflict with the patent laws of the United States. The Court of Appeals reasoned that Ohio could not grant monopoly protection to processes and manufacturing techniques that were appropriate subjects for consideration under 35 U.S.C. § 101 for a federal patent but which had been in commercial use for over one year and so were no longer eligible for patent protection under 35 U.S.C. § 102(b).
6
We hold that Ohio's law of trade secrets is not preempted by the patent laws of the United States, and, accordingly, we reverse.
II
7
Ohio has adopted the widely relied-upon definition of a trade secret found at Restatement of Torts § 757, comment b (1939). B. F. Goodrich Co. v. Wohlgemuth, 117 Ohio App. 493, 498, 192 N.E.2d 99, 104 (1963); W. R. Grace & Co. v. Hargadine, 392 F.2d 9, 14 (C.A.6 1968). According to the Restatement,
8
'(a) trade secret may consist of any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers.'
9
The subject of a trade secret must be secret, and must not be of public knowledge or of a general knowledge in the trade or business. B. F. Goodrich Co. v. Wohlgemuth, supra, 117 Ohio App., at 499, 192 N.E.2d, at 104; National Tube Co. v. Eastern Tube Co., 3 Ohio Cir.Ct.R., N.S., 459, 462 (1902), aff'd, 69 Ohio St. 560, 70 N.E. 1127 (1903). This necessary element of secrecy is not lost, however, if the holder of the trade secret reveals the trade secret to another 'in confidence, and under an implied obligation not to use or disclose it.' Cincinnati Bell Foundry Co. v. Dodds, 10 Ohio Dec.Reprint 154, 156, 19 Weekly Law Bull. 84 (Super.Ct.1887). These others may include those of the holder's 'employes to whom it is necessary to confide it, in order to apply it to the uses for which it is intended.' National Tube Co. v. Eastern Tube Co, supra, 3 Ohio Cir.Ct.R., N.S., at 462. Often the recipient of confidential knowledge of the subject of a trade secret is a licensee of its holder. See Lear, Inc. v. Adkins, 395 U.S. 653, 89 S.Ct. 1902, 23 L.Ed.2d 610 (1969).
10
The protection accorded the trade secret holder is against the disclosure or unauthorized use of the trade secret by those to whom the secret has been confided under the express or implied restriction of nondisclosure or nonuse.4 The law also protects the holder of a trade secret against disclosure or use when the knowledge is gained, not by the owner's volition, but by some 'improper means,' Restatement of Torts § 757(a), which may include theft, wiretapping, or even aerial reconnaissance.5 A trade secret law, however, does not offer protection against discovery by fair and honest means, such as by independent invention, accidental disclosure, or by so-called reverse engineering, that is by starting with the known product and working backward to divine the process which aided in its development or manufacture.6
11
Novelty, in the patent law sense, is not required for a trade secret, W. R. Grace & Co. v. Hargadine, 392 F.2d, at 14. 'Quite clearly discovery is something less than invention.' A. O. Smith Corp. v. Petroleum Iron Works Co., 73 F.2d 531, 538 (CA6 1934), modified to increase scope of injunction, 74 F.2d 934 (1935). However, some novelty will be required if merely because that which does not possess novelty is usually known; secrecy, in the context of trade secrets, thus implies at least minimal novelty.7
12
The subject matter of a patent is limited to a 'process, machine, manufacture, or composition of matter, or . . . improvement thereof,' 35 U.S.C. § 101, which fulfills the three conditions of novelty and utility as articulated and defined in 35 U.S.C. §§ 101 and 102, and nonobviousness, as set out in 35 U.S.C. § 103.8 If an invention meets the rigorous statutory tests for the issuance of a patent, the patent is granted, for a period of 17 years, giving what has been described as the 'right of exclusion,' R. Ellis, Patent Assignments and Licenses § 4, p. 7 (2d ed. 1943).9 This protection goes not only to copying the subject matter, which is forbidden under the Copyright Act, 17 U.S.C. § 1 et seq., but also to independent creation.
III
13
The first issue we deal with is whether the States are forbidden to act at all in the area of protection of the kinds of intellectual property which may make up the subject matter of trade secrets.
14
Article I, § 8, cl. 8, of the Constitution grants to the Congress the power
15
'(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 . . .'
16
In the 1972 Term, in Goldstein v. California, 412 U.S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973), we held that the cl. 8 grant of power to Congress was not exclusive and that, at least in the case of writings, the States were not prohibited from encouraging and protecting the efforts of those within their borders by appropriate legislation. The States could, therefore, protect against the unauthorized rerecording for sale of performances fixed on records or tapes, even though those performances qualified as 'writings' in the constitutional sense and Congress was empowered to legislate regarding such performances and could pre-empt the area if it chose to do so. This determination was premised on the great diversity of interests in our Nation—the essentially non-uniform character of the appreciation of intellectual achievements in the various States. Evidence for this came from patents granted by the States in the 18th century. 412 U.S., at 557, 93 S.Ct., at 2310.
17
Just as the States may exercise regulatory power over writings so may the States regulate with respect to discoveries. States may hold diverse viewpoints in protecting intellectual property to invention as they do in protecting the intellectual property relating to the subject matter of copyright. The only limitation on the States is that in regulating the area of patents and copyrights they do not conflict with the operation of the laws in this area passed by Congress, and it is to that more difficult question we now turn.
IV
18
The question of whether the trade secret law of Ohio is void under the Supremacy Clause involves a consideration of whether that 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). See Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 141, 83 S.Ct. 1210, 1216, 10 L.Ed.2d 248 (1963). We stated in Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 229, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964), that when state law touches upon the area of federal statutes enacted pursuant to constitutional authority, 'it is 'familiar doctrine' that the federal policy 'may not be set at naught, or its benefits denied' by the state law. Sola Elec. Co. v. Jefferson Elec. Co., 317 U.S. 172, 173, 176, 63 S.Ct. 172, 173, 87 L.Ed. 165 (1942). This is true, of course, even if the state law is enacted in the exercise of otherwise undoubted state power.'
19
The laws which the Court of Appeals in this case held to be in conflict with the Ohio law of trade secrets were the patent laws passed by the Congress in the unchallenged exercise of its clear power under Art. I, § 8, cl. 8, of the Constitution. The patent law does not explicitly endorse or forbid the operation of trade secret law. However, as we have noted, if the scheme of protection developed by Ohio respecting trade secrets 'clashes with the objectives of the federal patent laws,' Sears, Roebuck & Co. v. Stiffel Co., supra, 376 U.S., at 231, 84 S.Ct. at 789, then the state law must fall. To determine whether the Ohio law 'clashes' with the federal law it is helpful to examine the objectives of both the patent and trade secret laws.
20
The stated objective of the Constitution in granting the power to Congress to legislate in the area of intellectual property is to 'promote the Progress of Science and useful Arts.' The patent laws promote this progress by offering a right of exclusion for a limited period as an incentive to inventors to risk the often enormous costs in terms of time, research, and development. The productive effort thereby fostered will have a positive effect on society through the introduction of new products and processes of manufacture into the economy, and the emanations by way of increased employment and better lives for our citizens. In return for the right of exclusion—this 'reward for inventions,' Universal Oil Co. v. Globe Co., 322 U.S. 471, 484, 64 S.Ct. 1110, 1116, 88 L.Ed. 1399 (1944)—the patent laws impose upon the inventor a requirement of disclosure. To insure adequate and full disclosure so that upon the expiration of the 17-year period 'the knowledge of the invention enures to the people, who are thus enabled without restriction to practice it and profit by its use,' United States v. Dubilier Condenser Corp., 289 U.S. 178, 187, 53 S.Ct. 554, 77 L.Ed. 1114 (1933), the patent laws require10 that the patent application shall include a full and clear description of the invention and 'of the manner and process of making and using it' so that any person skilled in the art may make and use the invention. 35 U.S.C. § 112. When a patent is granted and the information contained in it is circulated to the general public and those especially skilled in the trade, such additions to the general store of knowledge are of such importance to the public weal that the Federal Government is willing to pay the high price of 17 years of exclusive use for its disclosure, which disclosure, it is assumed, will stimulate ideas and the eventual development of further significant advances in the art. The Court has also articulated another policy of the patent law: that which is in the public domain cannot be removed therefrom by action of the States.
21
'(F)ederal laws requires that all ideas in general circulation be dedicated to the common good unless they are protected by a valid patent.' Lear, Inc. v. Adkins, 395 U.S., at 668, 89 S.Ct., at 1910.
22
See also Goldstein v. California, 412 U.S., at 570—571, 93 S.Ct., at 2316—2317; Sears, Roebuck & Co. v. Stiffel Co., supra; Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 237—238, 84 S.Ct. 779, 781—782, 11 L.Ed.2d 669 (1964); International News Service v. Associated Press, 248 U.S. 215, 250, 39 S.Ct. 68, 76, 63 L.Ed. 211 (1918) (Brandeis, J., dissenting).
23
The maintenance of standards of commercial ethics and the encouragement of invention are the broadly stated policies behind trade secret law. 'The necessity of good faith and honest, fair dealing, is the very life and spirit of the commercial world.' National Tube Co. v. Eastern Tube Co., 3 Ohio Cir.Cr.R., N.S. at 462.11 In A. O. Smith Corp. v. Petroleum Iron Works Co., 73 F.2d, at 539, the Court emphasized that even though a discovery may not be patentable, that does not
24
'destroy the value of the discovery to one who makes it, or advantage the competitor who by unfair means, or as the beneficiary of a broken faith, obtains the desired knowledge without himself paying the price in labor, money, or machines expended by the discover.'
25
In Wexler v. Greenberg, 399 Pa. 569, 578—579, 160 A.2d 430, 434—435 (1960), the Pennsylvania Supreme Court noted the importance of trade secret protection to the subsidization of research and development and to increased economic efficiency within large companies through the dispersion of responsibilities for creative developments.12
26
Having now in mind the objectives of both the patent and trade secret law, we turn to an examination of the interaction of these systems of protection of intellectual property—one established by the Congress and the other by a State—to determine whether and under what circumstances the latter might constitute 'too great an encroachment on the federal patent system to be tolerated.' Sears, Roebuck & Co. v. Stiffel Co., 376 U.S., at 232, 84 S.Ct., at 789.
27
As we noted earlier, trade secret law protects items which would not be proper subjects for consideration for patent protection under 35 U.S.C. § 101. As in the case of the recordings in Goldstein v. California, Congress, with respect to nonpatentable subject matter, 'has drawn no balance; rather, it has left the area unattended, and no reason exists why the State should not be free to act.' Goldstein v. California, supra, 412 U.S., at 570, 93 S.Ct. at 2316 (footnote omitted).
28
Since no patent is available for a discovery, however useful, novel, and nonobvious, unless it falls within one of the express categories of patentable subject matter of 35 U.S.C. § 101, the holder of such a discovery would have no reason to apply for a patent whether trade secret protection existed or not. Abolition of trade secret protection would, therefore, not result in increased disclosure to the public of discoveries in the area of nonpatentable subject matter. Also, it is hard to see how the public would be benefited by disclosure of customer lists or advertising campaigns; in fact, keeping such items secret encourages businesses to initiate new and individualized plans of operation, and constructive competition results. This, in turn, leads to a greater variety of business methods than would otherwise be the case if privately developed marketing and other data were passed illicitly among firms involved in the same enterprise.
29
Congress has spoken in the area of those discoveries which fall within one of the categories of patentable subject matter of 35 U.S.C. § 101 and which are, therefore, of a nature that would be subject to consideration for a patent. Processes, machines, manufactures, compositions of matter and improvements thereof, which meet the tests of utility, novelty, and nonobviousness are entitled to be patented, but those which do not, are not. The question remains whether those items which are proper subjects for consideration for a patent may also have available the alternative protection accorded by trade secret law.
30
Certainly the patent policy of encouraging invention is not disturbed by the existence of another form of incentive to invention. In this respect the two systems are not and never would be in conflict. Similarly, the policy that matter once in the public domain must remain in the public domain is not incompatible with the existence of trade secret protection. By definition a trade secret has not been placed in the public domain.13
31
The more difficult objective of the patent law to reconcile with trade secret law is that of disclosure, the quid pro quo of the right to exclude. Universal Oil Co. v. Globe Co., 322 U.S., at 484, 64 S.Ct. at 1116. We are helped in this stage of the analysis by Judge Henry Friendly's opinion in Painton & Co. v. Bourns, Inc., 442 F.2d 216 (CA2 1971). There the Court of Appeals thought it useful, in determining whether inventors will refrain because of the existence of trade secret law from applying for patents, thereby depriving the public from learning of the invention, to distinguish between three categories of trade secrets:
32
'(1) the trade secret believed by its owner to constitute a validly patentable invention; (2) the trade secret known to its owner not to be so patentable; and (3) the trade secret whose valid patentability is considered dubious.' Id., at 224.
33
Trade secret protection in each of these categories would run against breaches of confidence—the employee and licensee situations—and theft and other forms of industrial espionage.
34
As to the trade secret known not to meet the standards of patentability, very little in the way of disclosure would be accomplished by abolishing trade secret protection. With trade secrets of nonpatentable subject matter, the patent alternative would not reasonably be available to the inventor. 'There can be no public interest in stimulating developers of such (unpatentable) knowhow to flood an overburdened Patent Office with applications (for) what they do not consider patentable.' Ibid. The mere filing of applications doomed to be turned down by the Patent Office will bring forth no new public knowledge or enlightenment, since under federal statute and regulation patent applications and abandoned patent applications are held by the Patent Office in confidence and are not open to public inspection. 35 U.S.C. § 122; 37 CFR § 1.14(b).
35
Even as the extension of trade secret protection to patentable subject matter that the owner knows will not meet the standards of patentability will not conflict with the patent policy of disclosure, it will have a decidedly beneficial effect on society. Trade secret law will encourage invention in areas where patent law does not reach, and will prompt the independent innovator to proceed with the discovery and exploitation of his invention. Competition is fostered and the public is not deprived of the use of valuable, if not quite patentable, invention.14
36
Even if trade secret protection against the faithless employee were abolished, inventive and exploitive effort in the area of patentable subject matter that did not meet the standards of patentability would continue, although at a reduced level. Alternatively with the effort that remained, however, would come an increase in the amount of self-help that innovative companies would employ. Knowledge would be widely dispersed among the employees of those still active in research. Security precautions necessarily would be increased, and salaries and fringe benefits of those few officers or employees who had to know the whole of the secret invention would be fixed in an amount thought sufficient to assure their loyalty.15 Smaller companies would be placed at a distinct economic disadvantage, since the costs of this kind of self-help could be great, and the cost to the public of the use of this invention would be increased. The innovative entrepreneur with limited resources would tend to confine his research efforts to himself and those few he felt he could trust without the ultimate assurance of legal protection against breaches of confidence. As a result, organized scientific and technological research could become fragmented, and society, as a whole, would suffer.
37
Another problem that would arise if state trade secret protection were precluded is in the area of licensing others to exploit secret processes. The holder of a trade secret would not likely share his secret with a manufacturer who cannot be placed under binding legal obligation to pay a license fee or to protect the secret. The result would be to hoard rather than disseminate knowledge. Painton & Co. v. Bourns, Inc., 442 F.2d, at 223. Instead, then, of licensing others to use his invention and making the most efficient use of existing manufacturing and marketing structures within the industry, the trade secret holder would tend either to limit his utilization of the invention, thereby depriving the public of the maximum benefit of its use, or engage in the time-consuming and economically wasteful enterprise of constructing duplicative manufacturing and marketing mechanisms for the exploitation of the invention. The detrimental misallocation of resources and economic waste that would thus take place if trade secret protection were abolished with respect to employees or licensees cannot be justified by reference to any policy that the federal patent law seeks to advance.
38
Nothing in the patent law requires that States refrain from action to prevent industrial espionage. In addition to the increased costs for protection from burglary, wire-tapping, bribery, and the other means used to misappropriate trade secrets, there is the inevitable cost to the basic decency of society when one firm steals from another. A most fundamental human right, that of privacy, is threatened when industrial espionage is condoned or is made profitable;16 the state interest in denying profit to such illegal ventures is unchallengeable.
39
The next category of patentable subject matter to deal with is the invention whose holder has a legitimate doubt as to its patentability. The risk of eventual patent invalidity by the courts and the costs associated with that risk may well impel some with a good-faith doubt as to patentability not to take the trouble to seek to obtain and defend patent protection for their discoveries, regardless of the existence of trade secret protection. Trade secret protection would assist those inventors in the more efficient exploitation of their discoveries and not conflict with the patent law. In most cases of genuine doubt as to patent validity the potential rewards of patent protection are so far superior to those accruing to holders of trade secrets, that the holders of such inventions will seek patent protection, ignoring the trade secret route. For those inventors 'on the line' as to whether to seek patent protection, the abolition of trade secret protection might encourage some to apply for a patent who otherwise would not have done so. For some of those so encouraged, no patent will be granted and the result
40
'will have been an unnecessary postponement in the divulging of the trade secret to persons willing to pay for it. If (the patent does issue), it may well be invalid, yet many will prefer to pay a modest royalty than to contest it, even though Lear allows them to accept a license and pursue the contest without paying royalties while the fight goes on. The result in such a case would be unjustified royalty payments from many who would prefer not to pay them rather than agreed fees from one or a few who are entirely willing to do so.' Painton & Co. v. Bourns, Inc., 442 F.2d, at 225.
41
The point is that those who might be encouraged to file for patents by the absence of trade secret law will include inventors possessing the chaff as well as the wheat. Some of the chaff—the nonpatentable discoveries—will be thrown out by the Patent Office, but in the meantime society will have been deprived of use of those discoveries through trade secret-protected licensing. Some of the chaff may not be thrown out. This Court has noted the difference between the standards used by the Patent Office and the courts to determine patentability. Graham v. John Deere Co., 383 U.S. 1, 18, 86 S.Ct. 684, 694, 15 L.Ed.2d 545 (1966).17 In Lear, Inc. v. Adkins, 395 U.S. 653, 89 S.Ct. 1902, 23 L.Ed.2d 610 (1969), the Court thought that an invalid patent was so serious a threat to the free use of ideas already in the public domain that the Court permitted licensees of the patent holder to challenge the validity of the patent. Better had the invalid patent never issued. More of those patents would likely issue if trade secret law were abolished. Eliminating trade secret law for the doubtfully patentable invention is thus likely to have deleterious effects on society and patent policy which we cannot say are balanced out by the speculative gain which might result from the encouragement of some inventors with doubtfully patentable inventions which deserve patent protection to come forward and apply for patents. There is no conflict, then, between trade secret law and the patent law policy of disclosure, at least insofar as the first two categories of patentable subject matter are concerned.
42
The final category of patentable subject matter to deal with is the clearly patentable invention, i.e., that invention which the owner believes to meet the standards of patentability. It is here that the federal interest in disclosure is at its peak; these inventions, novel, useful and nonobvious, are "the things which are worth to the public the embarrassment of an exclusive patent." Graham v. John Deere Co., supra, at 9, 86 S.Ct., at 689 (quoting Thomas Jefferson). The interest of the public is that the bargain of 17 years of exclusive use in return for disclosure be accepted. If a State, through a system of protection, were to cause a substantial risk that holders of patentable inventions would not seek patents, but rather would rely on the state protection, we would be compelled to hold that such a system could not constitutionally continue to exist. In the case of trade secret law no reasonable risk of deterrence from patent application by those who can reasonably expect to be granted patents exists.
43
Trade secret law provides far weaker protection in many respects than the patent law.18 While trade secret law does not forbid the discovery of the trade secret by fair and honest means, e.g., independent creation or reverse engineering, patent law operates 'against the world,' forbidding any use of the invention for whatever purpose for a significant length of time. The holder of a trade secret also takes a substantial risk that the secret will be passed on to his competitors, by theft or by breach of a confidential relationship, in a manner not easily susceptible of discovery or proof. Painton & Co. v. Bourns, Inc., 442 F.2d, at 224. Where patent law acts as a barrier, trade secret law functions relatively as a sieve. The possibility that an inventor who believes his invention meets the standards of patentability will sit back, rely on trade secret law, and after one year of use forfeit any right to patent protection, 35 U.S.C. § 102(b), is remote indeed.
44
Nor does society face much risk that scientific or technological progress will be impeded by the rare inventor with a patentable invention who chooses trade secret protection over patent protection. The ripeness-of-time concept of invention, developed from the study of the many independent multiple discoveries in history, predicts that if a particular individual had not made a particular discovery others would have, and in probably a relatively short period of time. If something is to be discovered at all very likely it will be discovered by more than one person. Singletons and Multiples in Science (1961), in R. Merton, The Sociology of Science 343 (1973); J. Cole & S. Cole, Social Stratification in Science 12—13, 229—230 (1973); Ogburn & Thomas, Are Inventions Inevitable?, 37 Pol.Sci.Q. 83 (1922).19 Even were an inventor to keep his discovery completely to himself, something that neither the patent nor trade secret laws forbid, there is a high probability that it will be soon independently developed. If the invention, though still a trade secret, is put into public use, the competition is alerted to the existence of the inventor's solution to the problem and may be encouraged to make an extra effort to independently find the solution thus known to be possible. The inventor faces pressures not only from private industry, but from the skilled scientists who work in our universities and our other great publicly supported centers of learning and research.
45
We conclude that the extension of trade secret protection to clearly patentable inventions does not conflict with the patent policy of disclosure. Perhaps because trade secret law does not produce any positive effects in the area of clearly patentable inventions, as opposed to the beneficial effects resulting from trade secret protection in the areas of the doubtfully patentable and the clearly unpatentable inventions, it has been suggested that partial pre-emption may be appropriate, and that courts should refuse to apply trade secret protection to inventions which the holder should have patented, and which would have been, thereby, disclosed.20 However, since there is no real possibility that trade secret law will conflict with the federal policy favoring disclosure of clearly patentable inventions partial pre-emption is inappropriate. Partial pre-emption, furthermore, could well create serious problems for state courts in the administration of trade secret law. As a preliminary matter in trade secret actions, state courts would be obliged to distinguish between what a reasonable inventor would and would not correctly consider to be clearly patentable, with the holder of the trade secret arguing that the invention was not patentable and the misappropriator of the trade secret arguing its undoubted novelty, utility, and nonobviousness. Federal courts have a difficult enough time trying to determine whether an invention, narrowed by the patent application procedure21 and fixed in the specifications which describe the invention for which the patent has been granted, is patentable.22 Although state courts in some circumstances must join federal courts in judging whether an issued patent is valid, Lear, Inc. v. Adkins, supra, it would be undesirable to impose the almost impossible burden on state courts to determine the patentability—in fact and in the mind of a reasonable inventor—of a discovery which has not been patented and remains entirely uncircumscribed by expert analysis in the administrative process. Neither complete nor partial pre-emption of state trade secret law is justified.
46
Our conclusion that patent law does not pre-empt trade secret law is in accord with prior cases of this Court. Universal Oil Co. v. Globe Co., 322 U.S., at 484, 64 S.Ct., at 1116; United States v. Dubilier Condenser Corp., 289 U.S., at 186—187, 53 S.Ct., at 557; Becher v. Contoure Laboratories, 279 U.S. 388, 391, 49 S.Ct. 356, 357, 73 L.Ed. 752 (1929); E. I. DuPont de Nemours Powder Co. v. Masland, 244 U.S. 100, 102, 37 S.Ct. 575, 61 L.Ed. 1016 (1917); Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 402—403, 31 S.Ct. 376, 382—383, 55 L.Ed. 502 (1911); Board of Trade v. Christie Grain & Stock Co., 198 U.S. 236, 250—251, 25 S.Ct. 637, 639—640, 49 L.Ed. 1031 (1905).23 Trade secret law and patent law have co-existed in this country for over one hundred years. Each has its particular role to play, and the operation of one does not take away from the need for the other. Trade secret law encourages the development and exploitation of those items of lesser or different invention than might be accorded protection under the patent laws, but which items still have an important part to play in the technological and scientific advancement of the Nation. Trade secret law promotes the sharing of knowledge, and the efficient operation of industry; it permits the individual inventor to reap the rewards of his labor by contracting with a company large enough to develop and exploit it. Congress, by its silence over these many years, has seen the wisdom of allowing the States to enforce trade secret protection. Until Congress takes affirmative action to the contrary, States should be free to grant protection to trade secrets.
47
Since we hold that Ohio trade secret law is not preempted by the federal patent law, the judgment of the Court of Appeals for the Sixth Circuit is reversed, and the case is remanded to the Court of Appeals with directions to reinstate the judgment of the District Court.
48
It is so ordered.
49
Reversed and remanded for reinstatement of District Court judgment.
50
Mr. Justice POWELL took no part in the decision of this case.
51
Mr. Justice MARSHALL, concurring in the result.
52
Unlike the Court, I do not believe that the possibility that an inventor with a patentable invention will rely on state trade secret law rather than apply for a patent is 'remote indeed.' Ante, at 490. State trade secret law provides substantial protection to the inventor who intends to use or sell the invention himself rather than license it to others, protection which in its unlimited duration is clearly superior to the 17-year monopoly afforded by the patent laws. I have no doubt that the existence of trade secret protection provides in some instances a substantial disincentive to entrance into the patent system, and thus deprives society of the benefits of public disclosure of the invention which it is the policy of the patent laws to encourage. This case may well be such an instance.
53
But my view of sound policy in this area does not dispose of this case. Rather, the question presented in this case is whether Congress, in enacting the patent laws, intended merely to offer inventors a limited monopoly in exchange for disclosure of their invention, or instead to exert pressure on inventors to enter into this exchange by withdrawing any alternative possibility of legal protection for their inventions. I am persuaded that the former is the case. State trade secret laws and the federal patent laws have co-existed for many, many years. During this time, Congress has repeatedly demonstrated its full awareness of the existence of the trade secret system, without any indication of disapproval. Indeed, Congress has in a number of instances given explicit federal protection to trade secret information provided to federal agencies. See, e.g., 5 U.S.C. § 552(b)(4); 18 U.S.C. § 1905; see generally Appendix to Brief for Petitioner. Because of this, I conclude that there is 'neither such actual conflict between the two schemes of regulation that both cannot stand in the same area, nor evidence of a congressional design to pre-empt the field.' Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 141, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963). I therefore concur in the result reached by the majority of the Court.
54
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN concurs, dissenting.
55
Today's decision is at war with the philosophy of Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 and Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669. Those cases involved patents one of a pole lamp and one of fluorescent lighting fixtures each of which was declared invalid. The lower courts held, however, that though the patents were invalid the sale of identical or confusingly similar products to the products of the patentees violated state unfair competition laws. We held that when an article is unprotected by a patent, state law may not forbid others to copy it, because every article not covered by a valid patent is in the public domain. Congress in the patent laws decided that where no patent existed, free competition should prevail; that where a patent is rightfully issued, the right to exclude others should obtain for no longer than 17 years, and that the States may not '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,'1 376 U.S., at 231, 84 S.Ct. at 789.
56
The product involved in this suit, sodium iodide synthetic crystals, was a product that could be patented but was not. Harshaw the inventor apparently contributed greatly to the technology in that field by developing processes, procedures, and techniques that produced much larger crystals than any competitor. These processes, procedures, and techniques were also patentable; but no patent was sought. Rather Harshaw sought to protect its trade secrets by contracts with its employees. And the District Court found that, as a result of those secrecy precautions, 'not sufficient disclosure occurred so as to place the claimed trade secrets in the public domain'; and those findings were sustained by the Court of Appeals.
57
The District Court issued a permanent injunction against respondents, ex-employees, restraining them from using the processes used by Harshaw. By a patent which would require full disclosure Harshaw could have obtained a 17-year monopoly against the world. By the District Court's injunction, which the Court approves and reinstates, Harshaw gets a permanent injunction running into perpetuity against respondents. In Sears, as in the present case, an injunction against the unfair competitor issued. We said: 'To allow a State by use of its law of unfair competition to prevent the copying of an article which represents too slight an advance to be patented would be to permit the State to block off from the public something which federal law has said belongs to the public. The result would be that while federal law grants only 14 or 17 years' protection to genuine inventions, see 35 U.S.C. §§ 154, 173, States could allow perpetual protection to articles too lacking in novelty to merit any patent at all under federal constitutional standards. This would be too great an encroachment on the federal patent system to be tolerated.' 376 U.S., at 231—232, 84 S.Ct. at 789.
58
The conflict with the patent laws is obvious. The decision of Congress to adopt a patent system was based on the idea that there will be much more innovation if discoveries are disclosed and patented than there will be when everyone works in secret. Society thus fosters a free exchange of technological information at the cost of a limited 17-year monopoly.2
59
A trade secret,3 unlike a patent, has no property dimension. That was the view of the Court of Appeals, 478 F.2d 1074, 1081; and its decision is supported by what Mr. Justice Holmes said in DuPont de Nemours Powder Co. v. Masland, 244 U.S. 100, 102, 37 S.Ct. 575, 576, 61 L.Ed. 1016:
60
'The word property as applied to trade-marks and trade secrets is an unanalyzed expression of certain secondary consequences of the primary fact that the law makes some rudimentary requirements of good faith. Whether the plaintiffs have any valuable secret or not the defendant knows the facts, whatever they are, through a special confidence that he accepted. The property may be denied but the confidence cannot be. Therefore the starting point for the present matter is not property or due process of law, but that the defendant stood in confidential relations with the plaintiffs, or one of them. These have given place to hostility, and the first thing to be made sure of is that the defendant shall not fraudulently abuse the trust reposed in him. It is the usual incident of confidential relations. If there is any disadvantage in the fact that he knew the plaintiffs' secrets he must take the burden with the good.'4
61
A suit to redress theft of a trade secret is grounded in tort damages for breach of a contract—a historic remedy, Cataphote Corp. v. Hudson, 5 Cir., 422 F.2d 1290. Damages for breach of a confidential relation are not pre-empted by this patent law, but an injunction against use is pre-empted because the patent law states the only monopoly over trade secrets that is enforceable by specific performance; and that monopoly exacts as a price full disclosure. A trade secret can be protected only by being kept secret. Damages for breach of a contract are one thing; an injunction barring disclosure does service for the protection accorded valid patents and is therefore pre-empted.
62
From the findings of fact of the lower courts, the process involved in this litigation was unique, such a great discovery as to make its patentability a virtual certainty. Yet the Court's opinion reflects a vigorous activist antipatent philosophy. My objection is not because it is activist. This is a problem that involves no neutral principle. The Constitution in Art. I, § 8, cl. 8, expresses the activist policy which Congress has enforced by statutes. It is that constitutional policy which we should enforce, not our individual notions of the public good.
63
I would affirm the judgment below.
1
414 U.S. 818, 94 S.Ct. 70, 38 L.Ed.2d 50 (1973).
2
478 F.2d 1074 (1973).
3
Painton & Co. v. Bourns, Inc., 442 F.2d 216 (CA2 1971); Servo Corp. of America v. General Electric Co., 337 F.2d 716 (CA4 1964), cert. denied, 383 U.S. 934, 86 S.Ct. 1061, 15 L.Ed.2d 851 (1966); Water Services, Inc. v. Tesco Chemicals, Inc., 410 F.2d 163 (CA5 1969); Winston Research Corp. v. Minnesota Mining & Mfg. Co., 350 F.2d 134 (CA9 1965); Dekar Industries, Inc. v. Bissett-Berman Corp., 434 F.2d 1304 (CA9 1970), cert. denied, 402 U.S. 945, 91 S.Ct. 1621, 29 L.Ed.2d 113 (1971).
4
Ohio Rev.Code Ann. § 1333.51(C) (Supp.1973) provides:
'No person, having obtained possession of an article representing a trade secret or access thereto with the owner's consent, shall convert such article to his own use or that of another person, or thereafter without the owner's consent make or cause to be made a copy of such article, or exhibit such article to another.'
Ohio Rev.Code Ann. § 1333.99(E) (Supp.1973) provides:
'Whoever violates section 1333.51 of the Revised Code shall be fined not more than five thousand dollars, imprisoned not less than one nor more than ten years, or both.'
5
E. I. duPont deNemours & Co. v. Christopher, 431 F.2d 1012 (CA5 1970), cert. denied, 400 U.S. 1024, 91 S.Ct. 581, 27 L.Ed.2d 637 (1971). See generally Comment, Theft of Trade Secrets: The Need for a Statutory Solution, 120 U.Pa.L.Rev. 378 (1971).
6
National Tube Co. v. Eastern Tube Co., 3 Ohio Cir.Ct.R., N.S., 459, 462 (1902), aff'd, 69 Ohio St. 560, 70 N.E. 1127 (1903).
7
See Comment, The Stiffel Doctrine and the Law of Trade Secrets, 62 Nw.U.L.Rev. 956, 969 (1968).
8
'§ 101. Inventions patentable
'Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
§ 102. Conditions for patentability; novelty and loss of right to patent
'A person shall be entitled to a patent unless—
'(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the application or patent, or
'(b) the invention was patented or described in a printed publication in this or a foreign country or in a public use or on sale in this country, more than one year prior to the date of the application for patent in the United States, or
'(c) he has abandoned the invention, or
'(d) the invention was first patented or caused to be patented, or was the subject of an inventor's certificate, by the applicant or his legal representatives or assigns in a foreign country prior to the date of the application for patent in this country on an application for patent or inventor's certificate filed more than twelve months before the filing of the application in the United States, or
'(e) the invention was described in a patent granted on an application for patent by another filed in the United States before the invention thereof by the applicant for patent, or
'(f) he did not himself invent the subject matter sought to be patented, or
'(g) before the applicant's invention thereof the invention was made in this country by another who had not abandoned, suppressed, or concealed it. In determining priority of invention there shall be considered not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one who was first to conceive and last to reduce to practice, from a time prior to conception by the other.
§ 103. Conditions for patentability; nonobvious subject matter
'A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.'
9
Title 35 U.S.C. § 154 provides:
'Every patent shall contain a short title of the invention and a grant to the patentee, his heirs or assigns, for the term of seventeen years, subject to the payment of issue fees as provided for in this title, of the right to exclude others from making, using, or selling the invention throughout the United States, referring to the specification for the particulars thereof. A copy of the specification and drawings shall be annexed to the patent and be a part thereof.'
10
35 U.S.C. § 111.
11
See also Winston Research Corp. v. Minnesota Mining & Mfg. Co., 350 F.2d, at 138.
12
See also Water Services, Inc. v. Tesco Chemicals, Inc., 410 F.2d, at 171.
13
An invention may be placed 'in public use or on sale' within the meaning of 35 U.S.C. § 102(b) without losing its secret character. Painton & Co. v. Bourns, Inc., 442 F.2d, at 224 n. 6; Metallizing Engineering Co. v. Kenyon Bearing & Auto Parts Co., 153 F.2d 516, 520 (CA2), cert. denied, 328 U.S. 840, 66 S.Ct. 1016, 90 L.Ed. 1615 (1946).
14
Doerfer, The Limits on Trade Street Law Imposed by Federal Patent and Antitrust Supremacy, 80 Harv.L.Rev. 1432, 1454 (1967).
15
See generally Wydick, Trade Secrets: Federal Preemption in Light of Goldstein and Kewanee (Part II—Conclusion), 56 J.Pat.Off.Soc. 4, 23—24 (1974).
16
Note, Patent Preemption of Trade Secret Protection of Inventions Meeting Judicial Standards of Patentability, 87 Harv.L.Rev. 807, 828 (1974).
17
For a possible explanation see P. Areeda, Antitrust Analysis 406(d), pp. 327—328 (1967).
18
Water Services, Inc. v. Tesco Chemicals, Inc., 410 F.2d, at 172.
19
See J. Watson, The Double Helix (1968). If Watson and Crick had not discovered the structure of DNA it is likely that Linus Pauling would have made the discovery soon. Other examples of multiple discovery are listed at length in the Ogburn and Thomas article.
20
See Note, Patent Preemption of Trade Secret Protection of Inventions Meeting Judicial Standards of Patentability, 87 Harv.L.Rev. 807 (1974); Brief for the United States as Amicus Curiae, presenting the view within the Government favoring limited preemption (which view is not that of the United States, which believes that patent law does not pre-empt state trade secret law.)
21
See P. Areeda, Antitrust Analysis 407, p. 329 (1967).
22
See Judge L. Hand's lament in Harries v. Air King Products Co., 183 F.2d 158, 162 (CA2 1950).
23
The Court of Appeals below relied, in part, on Kendall v. Winsor, 21 How. 322, 16 L.Ed. 165 (1859), a case decided nine years before trade secret law was imported into this country from England by means of the landmark case of Peabody v. Norfolk, 98 Mass. 452 (1868).
1
Here as in Lear, Inc. v. Adkins, 395 U.S. 653, 674, 89 S.Ct. 1902, 1913, 23 L.Ed.2d 610, which held that a licensee of a patent is not precluded by a contract from challenging the patent, for if he were, that would defeat the policy of the patent laws: 'enforcing this contractual provision would undermine the strong federal policy favoring the full and free use of ideas in the public domain.'
2
'The holding (of the Court of Appeals) in Kewanee seems correct. If it is permissible for an inventor to use the law of unfair competition as a substitute for patenting, certain categories of inventions would receive privileged protection under that law. Thus a new laser, television set, or airplane could not be protected because inventions which by their nature cannot be put into commercial use without disclosure, are not eligible for trade secret protection after they are put on the market. Those that can be maintained are eligible. But as the basic economic function of the patent system is to encourage the making and commericalization of inventions, there seems to be no justification for providing incentives beyond those provided by the patent law to discriminate between different categories of inventions, i.e., those that may inherently be kept secret and those that may not. Moreover, state rules which would grant such incentives seem to conflict with the economic quid pro quo underlying patent protection; i.e., a monopoly limited in time, in return for full disclosure of the invention. Thus federal law has struck a balance between incentives for inventors and the public's right to a competitive economy. In this sense, the patent law is an integral part of federal competitive policy.' Adelman, Secrecy and Patenting: Some Proposals for Resolving the Conflict, 1 APLA Quarterly Journal 296, 298—299 (1973).
3
Trade secrets often are unpatentable. In that event there is no federal policy which is contravened when an injunction to bar disclosure of a trade secret is issued. Moreover, insofar as foreign patents are involved our federal patent policy is obviously irrelevant. S. Oppenheim, Unfair Trade Practices 264—265 (2d ed. 1965). As respects further contrasts between patents and trade secret see Milgrim, Trade Secret Protection and Licensing, 4 Pat.L.Rev. 375 (1972).
4
As to Goldstein v. California, 412 U.S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163, the ruling of Mr. Justice Bradley concerning the distinction between patents and copyright is relevant:
'The difference between the two things, letters-patent and copyright, may be illustrated by reference to the subjects just enumerated. Take the case of medicines. Certain mixtures are found to be of great value in the healing art. If the discoverer writes and publishes a book on the subject (as regular physicians generally do), he gains no exclusive right to the manufacture and sale of the medicine; he gives that to the public. If he desires to acquire such exclusive right, he must obtain a patent for the mixture as a new art, manufacture, or composition of matter. He may copyright his book, if he pleases; but that only secures to him the exclusive right of printing and publishing his book. So of all other inventions or discoveries.' Baker v. Selden, 101 U.S. 99, 102—103, 95 L.Ed. 841.
| 78
|
416 U.S. 600
94 S.Ct. 1895
40 L.Ed.2d 406
Lawrence MITCHELL, Petitioner,v.W. T. GRANT COMPANY
No. 72—6160.
Argued Dec. 4, 1973.
Decided May 13, 1974.
Syllabus
The Louisiana Code of Civil Procedure makes available to a mortgage or lien holder a writ of sequestration to forestall waste or alienation of the encumbered property. While the writ is obtainable on the creditor's ex parte application without notice to the debtor or an opportunity for hearing, the writ will issue only upon a verified affidavit and upon a judge's authority (with respect to the parish involved in this case) after the creditor has filed a sufficient bond. The debtor may immediately seek dissolution of the writ, which must be ordered unless the creditor proves the grounds for issuance (existence of the debt, lien, and delinquency), failing which the court may order return of the property and assess damages, including attorney's fees, in the debtor's favor. Respondent-seller filed suit against petitioner in the New Orleans City Court for the overdue balance of the price of certain personal property that petitioner had purchased under an installment sales contract and on which respondent had a vendor's lien. On respondent's application, the trial judge in accordance with the Louisiana procedure ordered sequestration of the property without prior notice or opportunity for a hearing, and denied petitioner's motion to dissolve the writ on the asserted ground, inter alia, that the seizure violated the Due Process Clause of the Fourteenth Amendment. The appellate courts affirmed. Held: The Louisiana sequestration procedure is not invalid, either on its face or as applied, and, considering the procedure as a whole, it effects a constitutional accommodation of the respective interests of the buyer and seller by providing for judicial control of the process from beginning to end, thus minimizing the risk of the creditor's wrongful interim possession, by protecting the debtor's interest in every way except to allow him initial possession, and by putting the property in the possession of the party who is able to furnish protection against loss or damage pending trial on the merits. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556, distinguished. Pp. 603—620.
263 La. 627, 269 So.2d 186, affirmed.
Robert J. Hobbs, New Orleans, La., for petitioner; John W. Reed, New Orleans, La., on the brief.
Thomas J. O'Sullivan, New York City, for respondent; Marshall J. Favret, New Orleans, La., on the brief.
Mr. Justice WHITE delivered the opinion of the Court.
1
In this case, a state trial judge in Louisiana ordered the sequestration of personal property on the application of a creditor who had made an installment sale of the goods to petitioner and whose affidavit asserted delinquency and prayed for sequestration to enforce a vendor's lien under state law. The issue is whether the sequestration violated the Due Process Clause of the Fourteenth Amendment because it was ordered ex parte, without prior notice or opportunity for a hearing.
2
* On February 2, 1972, respondent W. T. Grant Co. filed suit in the First City Court of the City of New Orleans, Louisiana, against petitioner, Lawrence Mitchell. The petition alleged the sale by Grant to Mitchell of a refrigerator, range, stereo, and washing machine, and an overdue and unpaid balance of the purchase price for said items in the amount of $574.17. Judgment for that sum was demanded. It was further alleged that Grant had a vendor's lien on the goods and that a writ of sequestration should issue to sequester the merchandise pending the outcome of the suit. The accompanying affidavit of Grant's credit manager swore to the truth of the facts alleged in the complaint. It also asserted that Grant had reason to believe petitioner would 'encumber, alienate or otherwise dispose of the merchandise described in the foregoing petition during the pendency of these proceedings, and that a writ of sequestration is necessary in the premises.' Based on the foregoing petition and affidavit, and without prior notice to Mitchell or affording him opportunity for hearing, the judge of the First City Court, Arthur J. O'Keefe, then signed an order that 'a writ of sequestration issue herein' and that 'the Constable of this court sequester and take into his possession the articles of merchandise described in the foregoing petition, upon plaintiff furnishing bond in the amount of $1,125.' Bond in that amount having been filed by the respondent, the writ of sequestration issued, along with citation to petitioner Mitchell, citing him to file a pleading or make appearance in the First City Court of the city of New Orleans within five days. The citation recited the filing of the writ of sequestration and the accompanying affidavit, order, and bond. On March 3 Mitchell filed a motion to dissolve the writ of sequestration issued on February 2.1 The motion asserted that the personal property at issue had been seized under the writ of February 7, 1972, and claimed, first, that the goods were exempt from seizure under state law and, second, that the seizure violated the Due Process Clauses of the State and Federal Constitutions in that it had occurred without prior notice and opportunity to defend petitioner's right to possession of the property.2 The motion came on for hearing on March 14 It was then stipulated that a vendor's lien existed on the items, arguments of counsel were heard, and on March 16 the motion to dissolve was denied. The goods were held not exempt from seizure under state law. The trial court also ruled that 'the provisional seizure enforced through sequestration' was not a denial of due process of law. 'To the contrary,' the trial judge said, 'plaintiff insured defendant's right to due process by proceeding in accordance with Louisiana Law as opposed to any type of self-help seizure which would have denied defendant possession of his property without due process.' The appellate courts of Louisiana refused to disturb the rulings of the trial court, the Supreme Court of Louisiana expressly rejecting petitioner's due process claims pressed under the Federal Constitution. 263 La. 627, 269 So.2d 186 (1972). We granted certiorari, 411 U.S. 981, 93 S.Ct. 2276, 36 L.Ed.2d 957 (1973), and now affirm the judgment of the Louisiana Supreme Court.
II
3
Petitioner's basic proposition is that because he had possession of and a substantial interest in the sequestered property, the Due Process Clause of the Fourteenth Amendment necessarily forbade the seizure without prior notice and opportunity for a hearing. In the circumstances presented here, we cannot agree.
4
Petitioner no doubt 'owned' the goods he had purchased under an installment sales contract, but his title was heavily encumbered. The seller W. T. Grant Co., also had an interest in the property, for state law provided it with a vendor's lien to secure the unpaid balance of the purchase price. Because of the lien, Mitchell's right to possession and his title were subject to defeasance in the event of default in paying the installments due from him. His interest in the property, until the purchase price was paid in full, was no greater than the surplus remaining, if any, after foreclosure and sale of the property in the event of his default and satisfaction of outstanding claims. See La.Code Civ.Proc.Ann., Art. 2373 (1961).3 The interest of Grant, as seller of the property and holder of a vendor's lien, was measured by the unpaid balance of the purchase price. The monetary value of that interest in the property diminished as payments were made, but the value of the property as security also steadily diminished over time as it was put to its intended use by the purchaser.
5
Plainly enough, this is not a case where the property sequestered by the court is exclusively the property of the defendant debtor. The question is not whether a debtor's property may be seized by his creditors, pendente lite, where they hold no present interest in the property sought to be seized. The reality is that both seller and buyer had current, real interests in the property, and the definition of property rights is a matter of state law. Resolution of the due process question must take account not only of the interests of the buyer of the property but those of the seller as well.
6
With this duality in mind, we are convinced that the Louisiana sequestration procedure is not invalid, either on its face or as applied. Sequestration under the Louisiana statutes is the modern counterpart of an ancient civil law device to resolve conflicting claims to property. Historically, the two principal concerns have been that, pending resolution of the dispute, the property would deteriorate or be wasted in the hands of the possessor and that the latter might sell or otherwise dispose of the goods. A minor theme was that official intervention would forestall violent self-help and retaliation. See Millar, Judicial Sequestration in Louisiana: Some Account of Its Sources, 30 Tul.L.Rev. 201, 206 (1956).
7
Louisiana statutes provide for sequestration where 'one claims the ownership or right to possession of propety, or a mortgage, lien, or privilege thereon . . . if it is within the power of the defendant to conceal, dispose of, or waste the property or the revenues therefrom, or remove the property from the parish, during the pendency of the action.' Art. 3571. The writ, however, will not issue on the conclusory allegation of ownership or possessory rights. Article 35014 provides that the writ of sequestration shall issue 'only when the nature of the claim and the amount thereof, if any, and the grounds relied upon for the issuance of the writ clearly appear from specific facts' shown by a verified petition or affidavit. In the parish where this case arose, the clear showing required must be made to a judge,5 and the writ will issue only upon his authorization and only after the creditor seeking the writ has filed a sufficient bond6 to protect the vendee against all damages in the event the sequestration is shown to have been improvident.7 Arts. 3501 and 3574.
8
The writ is obtainable on the creditor's ex parte application, without notice to the debtor or opportunity for a hearing, but the statute entitles the debtor immediately to seek dissolution of the writ, which must be ordered unless the creditor 'proves the grounds upon which the writ was issued,' Art. 3506, the existence of the debt, lien, and delinquency, failing which the court may order return of the property and assess damages in favor of the debtor, including attorney's fees.8
9
The debtor, with or without moving to dissolve the sequestration, may also regain possession by filing his own bond to protect the creditor against interim damage to him should he ultimately win his case and have judgment against the debtor for the unpaid balance of the purchase price which was the object of the suit and of the sequestration. Arts. 3507 and 3508.9
10
In our view, this statutory procedure effects a constitutional accommodation of the conflicting interests of the parties. We cannot accept petitioner's broad assertion that the Due Process Clause of the Fourteenth Amendment guaranteed to him the use and possession of the goods until all issues in the case were judicially resolved after full adversary proceedings had been completed. It is certainly clear under this Court's precedents that issues can be limited in actions for possession. Indeed, in Grant Timber & Mfg. Co. v. Gray, 236 U.S. 133, 35 S.Ct. 279, 59 L.Ed. 501 (1915) (Holmes, J.), the Court upheld such limitations in possessory actions for real property in Louisiana. See also Bianchi v. Morales, 262 U.S. 170, 43 S.Ct. 526, 67 L.Ed. 928 (1923); Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972). Petitioner's claim must accordingly be narrowed to one for a hearing on the issues in the possessory action—default, the existence of a lien, and possession of the debtor—before property is taken.
11
As to this claim, the seller here, with a vendor's lien to secure payment of the unpaid balance of purchase price, had the right either to be paid in accordance with its contract or to have possession of the goods for the purpose of foreclosing its lien and recovering the unpaid balance. By complaint and affidavit, the seller swore to facts that would entitle it to immediate possession of the goods under its contract, undiminished in value by further deterioration through use of the property by the buyer. Wholly aside from whether the buyer, with possession and power over the property, will destroy or make away with the goods, the buyer in possession of consumer goods will undeniably put the property to its intendecd use, and the resale value of the merchandise will steadily decline as it is used over a period of time. Any installment seller anticipates as much, but he is normally protected because the buyer's installment payments keep pace with the deterioration in value of the security. Clearly, if payments cease and possession and use by the buyer continue, the seller's interest in the property as security is steadily and irretrievably eroded until the time at which the full hearing is held.
12
The State of Louisiana was entitled to recognize this reality and to provide somewhat more protection for the seller. This it did in Orleans Parish by authorizing the sequestration of property by a judge. At the same time, the buyer being deprived of possession, the seller was required to put up a bond to guarantee the buyer against damage or expense, including attorney's fees, in the event the sequestration is shown to be mistaken or otherwise improvident. The buyer is permitted to regain possession by putting up his own bond to protect the seller. Absent that bond, which petitioner did not file in this case, the seller would be unprotected against the inevitable deterioration in the value of his security if the buyer remained in possession pending trial on the merits. The debtor, unlike the creditor, does not stand ready to make the opposing party whole, if his possession, pending a prior hearing, turns out to be wrongful.
13
Second, there is the real risk that the buyer, with possession and power over the goods, will conceal or transfer the merchandise to the damage of the seller. This is one of the considerations weighed in the balance by the Louisiana law in permitting initial sequestration of the property. An important factor in this connection is that under Louisiana law, the vendor's lien expires if the buyer transfers possession. It follows that if the vendor is to retain his lien, superior to the rights of other creditors of the buyer, it is imperative when default occurs that the property be sequestered in order to foreclose the possibility that the buyer will sell or otherwise convey the property to third parties against whom the vendor's lien will not survive. The danger of destruction or alienation cannot be guarded against if notice and a hearing before seizure are supplied. The notice itself may furnish a warning to the debtor acting in bad faith.
14
Third, there is scant support in our cases for the proposition that there must be final judicial determination of the seller's entitlement before the buyer may be even temporarily deprived of possession of the purchased goods. On the contrary, it seems apparent that the seller with his own interest in the disputed merchandise would need to establish in any event only the probability that his case will succeed to warrant the bonded sequestration of the property pending outcome of the suit. Cf. Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); Ewing v. Mytinger & Casselberry, 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950). The issue at this stage of the proceeding concerns possession pending trial and turns on the existence of the debt, the lien, and the delinquency. These are ordinarily uncomplicated matters that lend themselves to documentary proof; and we think it comports with due process to permit the initial seizure on sworn ex parte documents, followed by the early opportunity to put the creditor to his proof. The nature of the issues at stake minimizes the risk that the writ will be wrongfully issued by a judge. The potential damages award available, if there is a successful motion to dissolve the writ, as well as the creditor's own interest in avoiding interrupting the transaction, also contributes to minimizing this risk.
15
Fourth, we remain unconvinced that the impact on the debtor of deprivation of the household goods here in question overrides his inability to make the creditor whole for wrongful possession, the risk of destruction or alienation if notice and a prior hearing are supplied, and the low risk of a wrongful determination of possession through the procedures now employed.
16
Finally, the debtor may immediately have a full hearing on the matter of possession following the execution of the writ, thus cutting to a bare minimum the time of creditor- or court-supervised possession. The debtor in this case, who did not avail himself of this opportunity, can hardly expect that his argument on the severity of deprivation will carry much weight, and even assuming that there is real impact on the debtor from loss of these goods, pending the hearing on possession, his basic source of income is unimpaired.
17
The requirements of due process of law 'are not technical, nor is any particular form of procedure necessary.' Inland Empire Council v. Millis, 325 U.S. 697, 710, 65 S.Ct. 1316, 1323, 89 L.Ed. 1877 (1945). Due process of law guarantees 'no particular form of procedure; it protects substantial rights.' NLRB v. Mackay Co., 304 U.S. 333, 351, 58 S.Ct. 904, 913, 82 L.Ed. 1381 (1938). 'The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.' Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961); Stanley v. Illinois, 405 U.S. 645, 650, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972). Considering the Louisiana procedure as a whole, we are convinced that the State has reached a constitutional accommodation of the rspective interests of buyer and seller.
III
18
Petitioner asserts that his right to a hearing before his possession is in any way disturbed is nonetheless mandated by a long line of cases in this Court, culminating in Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), and Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). The pre-Sniadach cases are said by petitioner to hold that 'the opportunity to be heard must precede any actual deprivation of private property.'10 Their import, however, is not so clear as petitioner would have it: they merely stand for the proposition that a hearing must be had before one is finally deprived of his property and do not deal at all with the need for a pretermination hearing where a full and immediate post-termination hearing is provided. The usual rule has been '(w)here only property rights are involved, mere postponement of the judicial enquiry is not a denial of due process, if the opportunity given for ultimate judicial determination of liability is adequate.' Phillips v. Commissioner, 283 U.S. 589, 596—597, 51 S.Ct. 608, 611, 75 L.Ed. 1289 (1931). See also Scottish Union & National Ins. Co. v. Bowland, 196 U.S. 611, 632, 25 S.Ct. 345, 352, 49 L.Ed. 619 (1905); Springer v. United States, 102 U.S. 586, 593—594, 26 L.Ed. 253 (1881). This generality sufficed to decide relatively modern cases. For example, in Ewing v. Mytinger & Casselberry, 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950), the statute at issue permitted multiple seizures of misbranded articles in commerce "when the Administrator has probable cause to believe from facts found, without hearing, by him or any officer or employee of the Agency that the misbranded article . . . would be in a material respect misleading to the injury or damage of the purchaser or consumer." Id., 339 U.S. at 595—596, 70 S.Ct. at 871. The specific seizure challenged, made administratively without prior notice or hearing, concerned a concentrate of alfalfa, watercress, parsley, and synthetic vitamins, combined in a package with mineral tablets. There was no claim or suggestion of any possible threat to health. The sole official claim was that the labeling was misleading to the alleged damage of the purchaser. The Court sustained the ex parte seizure saying that '(w)e have repeatedly held that no hearing at the preliminary stage is required by due process so long as the requisite hearing is held before the final administrative order becomes effective.' Id., at 598, 70 S.Ct., at 872. 'It is sufficient, where only property rights are concerned, that there is at some stage an opportunity for a hearing and a judicial determination.' Id., at 599, 70 S.Ct., at 873.11
19
More precisely in point, the Court had unanimously approved prejudgment attachment liens effected by creditors, without notice, hearing, or judicial order, saying that 'nothing is more common than to allow parties alleging themselves to be creditors to establish in advance by attachment a lien dependent for its effect upon the result of the suit.' 'The fact that the execution is issued in the first instance by an agent of the State but not from a court, followed as it is by personal notice and a right to take the case into court, is a familiar method in Georgia and is open to no objection.' Coffin Bros. v. Bennett, 277 U.s. 29, 31, 48 S.Ct. 422, 423, 72 L.Ed. 768 (1929). To the same effect was the earlier case of Ownbey v. Morgan, 256 U.S. 94, 41 S.Ct. 433, 65 L.Ed. 837 (1921). Furthermore, based on Ownbey and Coffin, the Court later sustained the constitutionality of the Maine attachment statute. McKay v. McInnes, 279 U.S. 820, 49 S.Ct. 344, 73 L.Ed. 975 (1928). In that case, a nonresident of Maine sued in the Maine courts to collect a debt from a resident of the State. As permitted by statute, and as an integral part of instituting the suit, the creditor attached the properties of the defendant, without notice and without judicial process of any kind. In sustaining the procedure, the Maine Supreme Court, 127 Me. 110, 141 A. 699 (1928), described the attachment as designed to create a lien for the creditor at the outset of the litigation. 'Its purpose is simply to secure to the creditor the property which the debtor has at the time it is made so that it may be seized and levied upon in satisfaction of the debt after judgment and execution may be obtained.' Id., at 115, 141 A., at 702. The attachment was deemed 'part of the remedy provided for the collection of the debt,' ibid., and represented a practice that 'had become fully established in Massachusetts, part of which Maine was, at the time of the adoption of the Federal Constitution.' Id., at 114, 115, 141 A., at 702. The judgment of the Maine court was affirmed without opinion, citing Ownbey and Coffin.
20
In Sniadach v. Family Finance Corp., supra, it was said that McKay and like cases dealt with '(a) procedural rule that may satisfy due process for attachments in general' but one that would not 'necessarily satisfy procedural due process in every case,' nor one that 'gives necessary protection to all property in its modern forms.' 395 U.S., at 340, 89 S.Ct., at 1822. Sniadach involved the prejudgment garnishment of wages—'a specialized type of property presenting distinct problems in our economic system.' Ibid. Because '(t)he leverage of the creditor on the wage earner is enormous' and because 'prejudgment garnishment of the Wisconsin type may as a practical matter drive a wage-earning family to the wall,' it was held that the Due Process Clause forbade such garnishment absent notice and prior hearing. Id., at 341—342, 89 S.Ct., at 1822. In Sniadach, the Court also observed that garnishment was subject to abuse by creditors without valid claims, a risk minimized by the nature of the security interest here at stake and the protections to the debtor offered by Louisiana procedure. Nor was it apparent in Sniadach with what speed the debtor could challenge the validity of the garnishment, and obviously the creditor's claim could not rest on the danger of destruction of wages, the property seized, since their availability to satisfy the debt remained within the power of the debtor who could simply leave his job. The suing creditor in Sniadach had no prior interest in the property attached, and the opinion did not purport to govern the typical case of the installment seller who brings a suit to collect an unpaid balance and who does not seek to attach wages pending the outcome of the suit but to repossess the sold property on which he had retained a lien to secure the purchase price. This very case soon came before the Court in Fuentes v. Shevin, where the constitutionality of the Florida and Pennsylvania replevin statutes was at issue. Those statutes permitted the secured installment seller to repossess the goods sold, without notice or hearing and without judicial order or supervision, but with the help of the sheriff operating under a writ issued by the court clerk at the behest of the seller. Because carried out without notice or opportunity for hearing and without judicial participation, this kind of seizure was held violative of the Due Process Clause. This holding is the mainstay of petitioner's submission here. But we are convinced that Fuentes was decided against a factual and legal background sufficiently different from that now before us and that it does not require the invalidation of the Louisiana sequestration statute, either on its face or as applied in this case.
21
The Florida law under examination in Fuentes authorized repossession of the sold goods without judicial order, approval, or participation. A writ of replevin was employed, but it was issued by the court clerk. As the Florida law was perceived by this Court, '(t)here is no requirement that the applicant make a convincing showing before the seizure,' 407 U.S., at 73—74, 92 S.Ct., at 1991; the law required only 'the bare assertion of the party seeking the writ that he is entitled to one' as a condition to the clerk's issuance of the writ. Id., at 74, 92 S.Ct., at 1991. The Court also said that under the statute the defendant-buyer would 'eventually' have an opportunity for a hearing, 'as the defendant in the trial of the court action for repossession . . ..' Id., at 75, 92 S.Ct., at 1991. The Pennsylvania law was considered to be essentially the same as that of Florida except that it did 'not require that there ever be opportunity for a hearing on the merits of the conflicting claims to possession of the replevied property.' Id., at 77, 92 S.Ct., at 1992. The party seeking the writ was not obliged to initiate a court action for repossession, was not required formally to allege that he was entitled to the property and had only to file an affidavit of the value of the property sought to be replevied. The Court distinguished the Pennsylvania and Florida procedures from that of the common law where, the Court said, 'a state official made at least a summary determination of the relative rights of the disputing parties before stepping into the dispute and taking goods from one of them.' Id., at 80, 92 S.Ct., at 1994.
22
The Louisiana sequestration statute followed in this case mandates a considerably different procedure. A writ of sequestration is available to a mortgage or lien holder to forestall waste or alienation of the property, but, different from the Florida and Pennsylvania systems, bare conclusory claims of ownership or lien will not suffice under the Louisiana statute. Article 3501 authorizes the writ 'only when the nature of the claim and the amount thereof, if any, and the grounds relied upon for the issuance of the writ clearly appear from specific facts' shown by verified petition or affidavit. Moreover, in the parish where this case arose, the requisite showing must be made to a judge, and judicial authorization obtained. Mitchell was not at the unsupervised mercy of the creditor and court functionaries. The Louisiana law provides for judicial control of the process from beginning to end.12 This control is one of the measures adopted by the State to minimize the risk that the ex parte procedure will lead to a wrongful taking. It is buttressed by the provision that should the writ be dissolved there are 'damages for the wrongful issuance of a writ' and for attorney's fees 'whether the writ is dissolved on motion or after trial on the merits.' Art. 3506.
23
The risk of wrongful use of the procedure must also be judged in the context of the issues which are to be determined at that proceeding. In Florida and Pennsylvania property was only to be replevied in accord with state policy if it had been 'wrongfully detained.' This broad 'fault' standard is inherently subject to factual determination and adversarial input. As in Bell v. Burson, where a driver's license was suspended without a prior hearing, when the suspension was premised on a fault standard, see Vlandis v. Kline, 412 U.S. 441, 446—447, 93 S.Ct. 2230, 2233—2234, 37 L.Ed.2d 63 (1973), in Fuentes this fault standard for replevin was thought ill-suited for preliminary ex parte determination. In Louisiana, on the other hand, the facts relevant to obtaining a writ of sequestration are narrowly confined. As we have indicated, documentary proof is particularly suited for questions of the existence of a vendor's lien and the issue of default. There is thus far less danger here that the seizure will be mistaken and a corresponding decrease in the utility of an adversary hearing which will be immediately available in any event.
24
Of course, as in Fuentes, consideration of the impact on the debtor remains. Under Louisiana procedure, however, the debtor, Mitchell, was not left in limbo to await a hearing that might or might not 'eventually' occur, as the debtors were under the statutory schemes before the Court in Fuentes. Louisiana law expressly provides for an immediate hearing and dissolution of the writ 'unless the plaintiff proves the grounds upon which the writ was issued.' Art. 3506.
25
To summarize, the Louisiana system seeks to minimize the risk of error of a wrongful interim possession by the creditor. The system protects to debtor's interest in every conceivable way, except allowing him to have the property to start with, and this is done in pursuit of what we deem an acceptable arrangement pendente lite to put the property in the possession of the party who furnishes protection against loss or damage to the other pending trial on the merits.
26
The Court must be sensitive to the possible consequences, already foreseen in antiquity, of invalidating this state statute. Doing so might not increase private violence, but self-help repossession could easily lessen protections for the debtor. See, for example, Adams v. Southern California First National Bank, 492 F.2d 324 (C.A.9 1973).13 Here, the initial hardship to the debtor is limited, the seller has a strong interest, the process proceeds under judicial supervision and management, and the prevailing party is protected against all loss. Our conclusion is that the Louisiana standards regulating the use of the writ of sequestration are constitutional. Mitchell was not deprived of procedural due process in this case.14 The judgment of the Supreme Court of Louisiana is affirmed.
27
So ordered.
APPENDIX TO OPINION OF THE COURT
STATUTES
28
PROVISIONS OF THE LOUISIANA CODE OF CIVIL PROCEDURE
29
Art. 281. Certain articles not applicable to Civil District Court for the Parish of Orleans
30
The provisions of Articles 282 through 286 do not apply to the clerk and the deputy clerks of the Civil District Court for the Parish of Orleans.
31
Art. 282. Acts which may be done by district court clerk
The clerk of a district court may:
32
(1) Grant an appeal and fix the return day thereof; fix the amount of the bond for an appeal, or for the issuance of a writ of attachment or of sequestration, or for the release of property seized under any writ, unless fixed by law; appoint an attorney at law to represent a nonresident, absent, incompetent, or unrepresented defendant; or dismiss without prejudice, on application of plaintiff, an action or proceeding in which no exception, answer, or intervention has been filed; and . . .
33
Art. 283. Orders and judgments which Art. 283. Orders and judgments which may be signed by district court clerk
34
(2) An order for the issuance of executory process, of a writ of attachment or of sequestration, or of garnishment process under a writ of fieri facias, attachment, or of sequestration; the release under bond of property seized under a writ of attchment or of sequestration; or to permit the filing of an intervention . . .
35
Art. 325. Right of entry for execution; may require assistance of others if resistance offered or threatened
36
In the execution of a writ, mandate, order, or judgment of a court, the sheriff may enter on the lands, and into the residence or other building, owned or occupied by the judgment debtor or defendant. . . .
37
Art. 2373. Distribution of proceeds of sale
38
After deducting the costs, the sheriff shall first pay the amount due the seizing creditor, then the inferior mortgages, liens, and privileges on the property sold, and shall pay to the debtor whatever surplus may remain.
Art. 3501. Petition; affidavit; security
39
A writ of attachment or of sequestration shall issue only when the nature of the claim and the amount thereof, if any, and the grounds relied upon for the issuance of the writ clearly appear from specific facts shown by the petition verified by, or by the separate affidavit of, the petitioner, his counsel or agent.
40
The applicant shall furnish security as required by law for the payment of the damages the defendant may sustain when the writ is obtained wrongfully.
Art. 3504. Return of sheriff; inventory
41
The sheriff, after executing a writ of attachment or of sequestration, shall deliver to the clerk of the court from which the writ issued a written return stating the manner in which he executed the writ. He shall annex to the return an inventory of the property seized.
Art. 3506. Dissolution of writ; damages
42
The defendant by contradictory motion may obtain the dissolution of a writ of attachment or of sequestration, unless the plaintiff proves the grounds upon which the writ was issued. If the writ of attachment or of sequestration is dissolved, the action shall then proceed as if no writ had been issued.
43
The court may allow damages for the wrongful issuance of a writ of attachment or of sequestration on a motion to dissolve, or on a reconventional demand. Attorney's fees for the services rendered in connection with the dissolution of the writ may be included as an element of damages whether the writ is dissolved on motion or after trial on the merits.
44
Art. 3507. Release of property by defendant; security
45
A defendant may obtain the release of the property seized under a writ of attachment or of sequestration by furnishing security for the satisfaction of any judgment which may be rendered against him.
46
Art. 3508. Amount of security for release of attached or sequestered property
47
The security for the release of property seized under a writ of attachment or of sequestration shall exceed by one-fourth the value of the property as determined by the court, or shall exceed by one-fourth the amount of the claim, whichever is the lesser.
48
Art. 3510. Necessity for judgment and execution
49
Except as provided in Article 3513 (perishables), a final judgment must be obtained in an action where a writ of attachment or of sequestration has issued before the property seized can be sold to satisfy the claim. Art. 3571. Grounds for sequestration
50
When one claims the ownership or right to possession of property, or a mortgage, lien, or privilege thereon, the may have the property seized under a writ of sequestration, if it is within the power of the defendant to conceal, dispose of, or waste the property or the revenues therefrom, or remove the property from the parish, during the pendency of the action.
Art. 3574. Plaintiff's security
51
An applicant for a writ of sequestration shall furnish security for an amount determined by the court to be sufficient to protect the defendant against any damage resulting from a wrongful issuance, unless security is dispensed with by law.
52
Art. 3576. Release of property under sequestration
53
If the defendant does not effect the release of property seized under a writ of sequestration, as permitted by Article 3507, within ten days of the seizure, the plaintiff may effect the release thereof by furnishing the security required by Article 3508.
54
Mr. Justice POWELL, concurring.
55
In sweeping language, Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), enunciated the principle that the constitutional guarantee of procedural due process requires an adversary hearing before an individual may be temporarily deprived of any possessory interest in tangible personal property, however brief the dispossession and however slight his monetary interest in the property. The Court's decision today withdraws significantly from the full reach of that principle, and to this extent I think it fair to say that the Fuentes opinion is overruled.
56
I could have agreed that the Florida and Pennsylvania statutes in Fuentes were violative of due process because of their arbitrary and unreasonable provisions. It seems to me, however, that it was unnecessary for the Fuentes opinion to have adopted so broad and inflexible a rule, especially one that considerably altered settled law with rspect to commercial transactions and basic creditordebtor understandings. Narrower grounds existed for invalidating the replevin statutes in that case.
57
* The constitutional guarantee of procedural due process applies to governmental deprivation of a legitimate 'property' or 'liberty' interest within the meaning of the Fifth or Fourteenth Amendment. It requires that any such deprivation be accompanied by minimum procedural safeguards, including some form of notice and a hearing. Arnett v. Kennedy, 416 U.S. 134, at 164, 94 S.Ct. 1633, at 1649, 40 L.Ed.2d 15 (separate opinion of Powell, J.); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). In the present case, there can be no doubt that under state law both petitioner and respondent had property interests in the goods sought to be sequestered. Petitioner, as the vendee-debtor under an installment sales contract, had both title and possession of the goods subject to his contractual obligation to continue the installment payments. Respondent, as the vendor-creditor, had a vendor's lien on the goods as security for the unpaid balance.
58
The determination of what due process requires in a given context depends on a consideration of both the nature of the governmental function involved and the private interests affected. Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961); Goldberg v. Kelly, 397 U.S. 254, 263—266, 90 S.Ct. 1011, 1018—1019, 25 L.Ed.2d 287 (1970). The governmental function in the instant case is to provide a reasonable and fair framework of rules which facilitate commercial transactions on a credit basis. The Louisiana sequestration statute is designed to protect the legitimate interests of both creditor and debtor. As to the creditor, there is the obvious risk that a defaulting debtor may conceal, destroy, or further encumber goods and thus deprive the creditor of his security. This danger is particulaly actute where, as here, the vendor's lien may be vitiated merely by transferring the goods from the debtor's possession. In addition, the debtor's continued use of the goods diminishes their resale value. In these circumstances a requirement of notice and an adversary hearing before sequestration would impose a serious risk that a creditor could be deprived of his security.
59
Against this concern must be balanced the debtor's real interest in uninterrupted possession of the goods, especially if the sequestration proves to be unjustified. To be sure, repossession of certain items of personal property, even for a brief period, may cause significant inconvenience. But it can hardly be said that temporary deprivation of such property would necessarily place a debtor in a 'brutal need' situation. Goldberg v. Kelly, supra; Arnett v. Kennedy, supra.
60
In my view, the constitutional guarantee of procedural due process is fully satisfied in cases of this kind where state law requires, as a precondition to invoking the State's aid to sequester property of a defaulting debtor, that the creditor furnish adequate security and make a specific factual showing before a neutral officer or magistrate of probable cause to believe that he is entitled to the relief requested. An opportunity for an adversary hearing must then be accorded promptly after sequestration to determine the merits of the controversy, with the burden of proof on the creditor.
61
The Louisiana statute sub judice satisfies these requirements and differs materially from the Florida and Pennsylvania statutes in Fuentes.1 Those statutes did not require an applicant for a writ of replevin to make any factually convincing showing that the property was wrongfully detained or that he was entitled to the writ. Moreover, the Florida statute provided only that a post-seizure hearing be held eventually on the merits of the competing claims, and it required the debtor to initiate that proceeding. The Pennsylvania statute made no provision for a hearing at any time.
62
By contrast, the Louisiana statute applicable in Orleans Parish authorizes issuance of a writ of sequestration 'only when the nature of the claim and the amount thereof, if any, and the grounds relied upon . . . clearly appear from specific facts shown by the petition verified by, or by the separate affidavit of, the petitioner, his counsel or agent.' La.Code Civ.Proc.Ann., Art. 3501 (1961). The Louisiana statute also provides for an immediate hearing, and the writ is dissolved 'unless the (creditor) proves the grounds upon which the writ was issued.' Art. 3506.
63
The Court's opinion makes these points well, and I need not elaborate them further. In brief, the Louisiana statute satisfies the essential prerequisites of procedural due process and represents a fairer balancing of the interests of the respective parties than the statutes in Fuentes. I therefore agree that the Louisiana procedure should be sustained against petitioner's challenge.
II
64
Mr. Justice STEWART reproves the Court for not adhering strictly to the doctrine of stare decisis. Post, at 1913—1914.
65
To be sure, stare decisis promotes the important considerations of consistency and predictability in judicial decisions and represents a wise and appropriate policy in most instances. But that doctrine has never been thought to stand as an absolute bar to reconsideration of a prior decision, especially with respect to matters of constitutional interpretation.2 Where the Court errs in its construction of a statute, correction may always be accomplished by legislative action. Revision of a constitutional interpretation, on the other hand, is often impossible as a practical matter, for it requires the cumbersome route of constitutional amendment. It is thus not only our prerogative but also out duty to re-examine a precedent where its reasoning or understanding of the Constitution is fairly called into question. And if the precedent or its rationale is of doubtful validity, then it should not stand. As Mr. Chief Justice Taney commented more than a century ago, a constitutional decision of this Court should be 'always open to discussion when it is supposed to have been founded in error, (so) that (out) judicial authority should hereafter depend altogether on the force of the reasoning by which it is supported.' Passenger Cases, 48 U.S. (7 How.) 283, 470, 12 L.Ed. 702 (1849).
66
Moreover, reconsideration is particularly appropriate in the present case. To the extent that the Fuentes opinion established a Procrustean rule of a prior adversary hearing, it marked a significant departure from past teachings as to the meaning of due process.3 As the Court stated in Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S., at 895, 81 S.Ct., at 1748, '(t)he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.' The Fuentes opinion not only eviscerated that principle but also sounded a potential death knell for a panoply of statutes in the commercial field.4 This fact alone justifies a re-examination of its premises. The Court today reviews these at length, and I join its opinion because I think it represents a reaffirmation of the traditional meaning of procedural due process.
67
Mr. Justice STEWART, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL concur, dissenting.
68
The Louisiana sequestration procedure now before us is remarkably similar to the statutory provisions at issue in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). In both cases the purchaser-in-possession of the property is not afforded any prior notice of the seizure or any opportunity to rebut the allegations of the vendor before the property is summarily taken from him by agents of the State. In both cases all that is required to support the issuance of the writ and seizure of the goods is the filing of a complaint and an affidavit containing pro forma allegations in support of the seller's purported entitlement to the goods in question. Since the procedure in both cases is completely ex parte, the state official charged with issuing the writ can do little more than determine the formal sufficiency of the plaintiff's allegations before ordering the state agents to take the goods from the defendant's possession.1
69
The question before the Court in Fuentes was what procedures are required by the Due Process Clause of the Fourteenth Amendment when a State, at the behest of a private claimant, seizes goods in the possession of another, pending judicial resolution of the claimant's assertion of superior right to possess the property. The Court's analysis of this question began with the proposition that, except in exceptional circumstances,2 the deprivation of a property interest encompassed within the Fourteenth Amendment's protection must be preceded by notice to the affected party and an opportunity to be heard. The Court then went on to hold that a debtor-vendee's interest in the continued possession of purchased goods was 'property' within the Fourteenth Amendment's protection and that the 'temporary, nonfinal deprivation of (this) property (is) . . . a 'deprivation' in the terms of the Fourteenth Amendment.' 407 U.S., at 85, 92 S.Ct., at 1996. Accordingly, Fuentes held that such a deprivation of property must be preceded by notice to the possessor and by an opportunity for a hearing appropriate under the circumstances. Matters such as requirements for the posting of bond and the filing of sworn factual allegations, the length and severity of the deprivation, the relative simplicity of the issues underlying the creditor's claim to possession, and the comparative 'importance' or 'necessity' of the goods involved were held to be relevant to determining the form of notice and hearing to be provided, but not to the constitutional need for notice and an opportunity for a hearing of some kind.
70
The deprivation of property in this case is identical to that at issue in Fuentes, and the Court does not say otherwise. Thus, under Fuentes, due process of law permits Louisiana to effect this deprivation only after notice to the possessor and opportunity for a hearing. Because I would adhere to the holding of Fuentes, I dissent from the Court's opinion and judgment upholding Louisiana's ex parte sequestration procedure, which provides that the possessor of the property shall never have advance notice or a hearing of any kind.
71
As already noted, the deprivation of property in this case is identical to that in Fuentes. But the Court says that this is a different case for three reasons: (1) the plaintiff who seeks the seizure of the property must file an affidavit stating 'specific facts' that justify the sequestration; (2) the state official who issues the writ of sequestration is a judge instead of a clerk of the court; and (3) the issues that govern the plaintiff's right to sequestration are limited to 'the existence of a vendor's lien and the issue of default,' and '(t)here is thus far less danger here that the seizure will be mistaken and a corresponding decrease in the utility of an adversary hearing,' supra, at 618. The Court's opinion in Fuentes, however, explicitly rejected each of these factors as a ground for a difference in decision.
72
The first two purported distinctions relate solely to the procedure by which the creditor-vendor secures the State's aid in summarily taking goods from the purchaser's possession. But so long as the Louisiana law routinely permits an ex parte seizure without notice to the purchaser, these procedural distinctions make no constitutional difference.
73
The Louisiana affidavit requirement can be met by any plaintiff who fills in the blanks on the appropriate form documents and presents the completed forms to the court. Although the standardized form in this case called for somewhat more information that that required by the Florida and Pennsylvania statutes challenged in Fuentes, such ex parte allegations 'are hardly a substitute for a prior hearing, for they test no more than the strength of the applicant's own belief in his rights. Since his private gain is at stake, the danger is all too great that his confidence in his cause will be misplaced. Lawyers and judges are familiar with the phenomenon of a party mistakenly but firmly convinced that his view of the facts and law will prevail, and therefore quite willing to risk the costs of litigation.' 407 U.S., at 83, 92 S.Ct., at 1995.
74
Similarly, the fact that the official who signs the writ after the ex parte application is a judge instead of a court clerk is of no constitutional significance. Outside Orleans Parish, this same function is performed by the court clerk. There is nothing to suggest that the nature of this duty was at all changed when the law was amended to vest it in a judge rather than a clerk in this one parish. Indeed, the official comments declare that this statutory revision was intended to 'mak(e) no change in the law.'3 Whether the issuing functionary be a judge or a court clerk, he can in any event do no more than ascertain the formal sufficiency of the plaintiff's allegations, after which the issuance of the summary writ becomes a simple ministerial act.4
75
The third distinction the Court finds between this case and Fuentes is equally insubstantial. The Court says the issues in this case are 'particularly suited' to ex parte determination, in contrast to the issues in Fuentes, which were 'inherently subject to factual determination and adversarial input,' supra at 617, 618. There is, however, absolutely no support for this purported distinction. In this case the Court states the factual issues as 'the existence of a vendor's lien and the issue of default.' Supra, at 617. The issues upon which replevin depended in Fuentes were no different; the creditor-vendor needed only to establish his security interest and the debtor-vendee's default. As Mr. Justice White acknowledged in his Fuentes dissent, the essential issue at any hearing would be whether 'there is reasonable basis for his (the creditor-vendor's) claim of default.' 407 U.S. at 99 100, 92 S.Ct., at 2004. Thus, the Court produces this final attempted distinction out of whole cloth.
76
Moreover, Fuentes held that the relative complexity of the issues in dispute is not relevant to determining whether a prior hearing is required by due process. 'The issues decisive of the ultimate right to continued possession, of course, may be quite simple. The simplicity of the issues might be relevant to the formality or scheduling of a prior hearing. But it certainly cannot undercut the right to a prior hearing of some kind.' Id., at 87 n. 18, 92 S.Ct., at 1998 (citation omitted). Similarly, the probability of success on the factual issue does not affect the right to prior notice and an opportunity to be heard.
77
'The right to be heard does not depend upon an advance showing that one will surely prevail at the hearing. 'To one who protests against the taking of his property without due process of law, it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate defense upon the merits.' It is enough to invoke the procedural safeguards of the Fourteenth Amendment that a significant property interest is at stake, whatever the ultimate outcome of a hearing on the contractual right to continued possession and use of the goods.' Id., at 87, 92 S.Ct., at 1997 (internal quotation marks and citation omitted).
78
In short, this case is constitutionally indistinguishable from Fuentes v. Shevin, in, and the Court today has simply rejected the reasoning of that case and adopted instead the analysis of the Fuentes dissent. In light of all that has been written in Fuentes and in this case, it seems pointless to prolong the debate. Suffice it to say that I would reverse the judgment before us because the Louisiana sequestration procedure fails to comport with the requirements of due process of law.
79
I would add, however, a word of concern. It seems to me that unless we respect the constitutional decisions of this Court, we can hardly expect that others will do so. Cf. Roofing Wholesale Co. v. Palmer, 108 Ariz. 508, 502 P.2d 1327 (1972). A substantial departure from precedent can only be justified, I had thought, in the light of experience with the application of the rule to be abandoned or in the light of an altered historic environment.5 Yet the Court today has unmistakably overruled a considered decision of this Court that is barely two years old, without pointing to any change in either societal perceptions or basic constitutional understandings that might justify this total disregard of stare decisis.
80
The Fuentes decision was in a direct line of recent cases in this Court that have applied the procedural due process commands of the Fourteenth Amendment to prohibit governmental action that deprives a person of a statutory or contractual property interest with no advance notice or opportunity to be heard.6 In the short time that has elapsed since the Fuentes case was decided, many state and federal courts have followed it in assessing the constitutional validity of state replevin statutes and other comparable state laws.7 No data have been brought to our attention to indicate that these decisions, granting to otherwise defenseless consumers the simple rudiments of due process of law, have worked any untoward change in the consumer credit market or in other commercial relationships. The only perceivable change that has occurred since Fuentes is in the makeup of this Court.8
81
A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of the Government. No misconception could do more lasting injury to this Court and to the system of law which it is our abiding mission to serve.
82
Mr. Justice BRENNAN is in agreement that Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), requires reversal of the judgment of the Supreme Court of Louisiana.
1
The motion asked for dissolution of the writ with respect to the refrigerator, stove, and washer. For some reason, unexplained by the parties, the motion was not addressed to the stereo.
2
There is some dispute between the parties as to when the writ was actually executed by the sheriff. The sheriff's return, furnished by petitioner but apparently not in the record below, indicates that execution was on the 18th of February, rather than on the 7th. The Louisiana Supreme Court assumed that the writ was executed on the 7th. Because we see no legal consequence attaching to a choice of dates, we assume for purposes of decision that the writ was executed on the 7th.
3
Article 2373 and other pertinent provisions of the Code, including those referred to in the text, are set out in the Appendix to this opinion.
4
Historically, the writ would issue only if the creditor had 'good reason to fear' that the debtor would damage, alienate or waste the goods, and the creditor was required to show the grounds for such fear. Under present law, however, the apprehension of the creditor is no longer the issue, and the writ may be obtained when the goods are within the power of the debtor. Reporter's Comment (a) to La.Code Civ.Proc.Ann., Art. 3571. The necessity of showing such 'power' is not irrelevant, because the vendor's privilege will not lie against goods not within the 'power' of the debtor. Margolin, Civil Law, Vendor's Privilege, 4 Tul.L.Rev. 239 (1930); H. Daggett, On Louisiana Privileges and Chattel Mortgages § 51 (1942).
5
Articles 282 and 283 of the Code provide, generally, that the court clerk may issue writs of sequestration. But Art. 281 confines the authority to the judge in Orleans Parish. There is no dispute in this case that judicial authority for the writ was required and that it was obtained as the statute requires. The validity of procedures obtaining in areas outside Orleans Parish is not at issue.
6
As previously noted, the judgment prayed for in this case was in the amount of $574.17. Grant was ordered to furnish security in the amount of $1,125.
7
When a writ is issued by the judge, it is served upon the debtor by the sheriff, Art. 3504, who thereafter becomes responsible for the property's safekeeping. See Johnson, Attachment and Sequestration: Provisional Remedies Under the Louisiana Code of Civil Procedure, 38 Tul.. L.Rev. 1, 21—22 (1963). The plaintiff-creditor, however, see Art. 3576, may himself take possession of the goods if the defendant within 10 days does not secure possession of the goods by posting his own bond as permitted by Art. 3507, but he has no right to sell the goods until final judgment on the merits. Art. 3510.
8
Damages would compensate for the period during which the buyer was deprived of the use of the property, but are not restricted to pecuniary loss. They may encompass injury to social standing or reputation as well as humiliation and mortification. Johnson, supra, n. 7, at 28.
9
The debtor's bond necessary to repossess the property 'shall exceed by one-fourth the value of the property as determined by the court, or shall exceed by one-fourth the amount of the claim, whichever is the lesser.' Art. 3508.
10
Petitioner relies particularly on: Covey v. Town of Somers, 351 U.S. 141, 76 S.Ct. 724, 100 L.Ed. 1021 (1956); New York v. New York, N.H. & H.R. Co., 344 U.S. 293, 73 S.Ct. 299, 97 L.Ed. 333 (1953); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Griffin v. Griffin, 327 U.S. 220, 66 S.Ct. 556, 90 L.Ed. 635 (1946); Opp Cotton Mills v. Administrator, 312 U.S. 126, 61 S.Ct. 524, 85 L.Ed. 624 (1941); West Ohio Gas Co. v. Pub. Util. Comm'n, of Ohio, 294 U.S. 63, 55 S.Ct. 316, 79 L.Ed. 761 (1935); United States v. Illinois Central R. Co., 291 U.S. 457, 54 S.Ct. 471, 78 L.Ed. 909 (1934); Southern R. Co. v. Virginia, 290 U.S. 190, 54 S.Ct. 148, 78 L.Ed. 260 (1933); Goldsmith v. United States Board of Tax Appeals, 270 U.S. 117, 46 S.Ct. 215, 70 L.Ed. 494 (1926); Coe v. Armour Fertilizer Works, 237 U.S. 413, 35 S.Ct. 625, 59 L.Ed. 1027 (1915); Londoner v. Denver, 210 U.S. 373, 28 S.Ct. 708, 52 L.Ed. 1103 (1908); Central of Georgia R. Co. v. Wright, 207 U.S. 127, 28 S.Ct. 47, 52 L.Ed. 134 (1907); Roller v. Holly, 176 U.S. 398, 20 S.Ct. 410, 44 L.Ed. 520 (1900); Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215 (1897); Scott v. McNeal, 154 U.S. 34, 14 S.Ct. 1108, 38 L.Ed. 896 (1894); Windsor v. McVeigh, 93 U.S. 274, 23 L.Ed. 914 (1876); Ray v. Norseworthy, 23 Wall. 128, 23 L.Ed. 116 (1875); Rees v. City of Watertown, 19 Wall. 107, 22 L.Ed. 72 (1874); Baldwin v. Hale, 1 Wall. 223, 17 L.Ed. 531 (1864). Brief for Petitioner 10—11.
11
Conceding that the multiple seizure might cause irreparable damage to a business, the Court responded:
'The impact of the initiation of judicial proceedings is often serious. Take the case of the grand jury. It returns an indictment against a man without a hearing. It does not determine his guilt; it only determines whether there is probable cause to believe he is guilty. But that determination is conclusive on the issue of probable cause. As a result the defendant can be arrested and held for trial. See Beavers v. Henkel, 194 U.S. 73, 85 (24 S.Ct. 605, 607, 48 L.Ed. 882); Ex parte United States, 287 U.S. 241, 250 (53 S.Ct. 129, 131, 77 L.Ed. 283). The impact of an indictment is on the reputation or liberty of a man. The same is true where a prosecutor files an information charging violations of the law. The harm to property and business can also be incalculable by the mere institution of proceedings, Yet it has never been held that the hand of government must be stayed until the courts have an opportunity to determine whether the government is justified in instituting suit in the courts. Discretion of any official may be abused. Yet it is not a requirement of due process that there be judicial inquiry before discretion can be exercised.' 339 U.S., at 599, 70 S.Ct., at 873.
12
The approval of a writ of sequestration is not, as petitioner contends, a mere ministerial act. 'Since a writ of sequestration issues without a hearing, specific facts as to the grounds relied upon for issuance must be contained in the verified petition in order that the issuing judge and properly evaluate the grounds.' Wright v. Hughes, 254 So.2d 293, 296—297 (La.Ct.App.1971) (on rehearing). To the same effect is Hancock Bank v. Alexander, 256 La. 643, 237 So.2d 669 (1970), where the court held that a simple allegation of indebtedness for money due on an automobile, where no deed of trust was referred to or produced, did not satisfy the 'specific facts' test. The court stated:
'Strict application of the rules established for the issuance of conservatory writs has been uniformly required by the Courts in the past. It is implicit in those remedies that they should not be availed of unless the conditions which permit them exist; that is to say, it is a prerequisite to their issuance that proper grounds be alleged and sworn to.' Id., at 653—654, 237 So.2d, at 672. (Emphasis added.) Zion Mercantile Co. v. Pierce, 163 La. 477, 112 So. 371 (1927), upon which petitioner relies, is not to the contrary. The Louisiana court merely held there that it is not necessary to 'file' papers requesting the writ with the clerk, or pay court costs, before the judge is empowered to issue the writ.
13
The advisability of requiring prior notice and hearing before repossession has been under study for several years. A number of possibilities have been put forward to modify summary creditor
remedies, whether taken through some form of court process of effected by self-help under Art. 9 of the Uniform Commercial Code, § 9—503. Influenced by Sniadach, and providing preseizure notice and hearing, are two model acts drafted by the National Consumer Law Center: National Consumer Act §§ 5.206—5.208 (1970), and Model Consumer Credit Act § 7.205 (1973). Other similar reforms are reflected in the Report of the National Commission on Consumer Finance, Consumer Credit in the Unied States 30—31 (1972); the Wisconsin Consumer Act, Wis.Stat.Ann. §§ 421.101—427.105 (special pamphlet 1973); and the amendments to the Illinois Replevin Statute, Public Act 78—287, Ill.Laws 1973. Looking in the other direction and leaving summary procedures intact for the most part are the National Conference of Commissioners on Uniform State Laws, Committee on Uniform Consumer Credit Code, Uniform Consumer Credit Code, Working Redraft No. 5, Nov. 1973, §§ 5.110, 5.112; and the Permanent Editorial Board for the Uniform Commercial Code, Review Committee for Art. 9 of the Uniform Commercial Code, Final Report, § 9—503 (Apr. 25, 1971), together with revised Art. 9 of the U.C.C., 1972 Official Text and Comments, § 9—503.
As revealed in the various studies and proposals, the principal question yet to be satisfactorily answered is the impact of prior notice and hearing on the price of credit, and, more particularly, of the mix of procedural requirements necessary to minimize the cost. The commentators are in the throes of debate, see, e.g., Symposium, Creditors' Rights, 47 S.Cal.L.Rev. 1—164 (1973), and basic questions remain unanswered. See generally Note, Self-Help Repossession; the Constitutional Attack, the Legislative Response, and the Economic Implications, 62 Geo.L.J. 273 (1973).
We indicate no view whatsoever on the desirability of one or more of the proposed reforms. The uncertainty evident in the current debate suggests caution in the adoption of an inflexible constitutional rule. Our holding in this case is limited to the constitutionality of the Louisiana sequestration procedures.
14
We are advised by counsel for petitioner of a tide of cases following Fuentes and are cautioned that affirmance in this case would set off a riptide with considerable consequences. We perceive no such result. Our decision will not affect recent cases dealing with garnishment or summary self-help remedies of secured creditors or landlords. Nor is it at all clear, with an exception or two, that the reported cases invalidating replevin or similar statutes dealt with situations where there was judicial supervision of seizure or foreclosure from the outset.
1
The Court outlined the deficiencies of the statutes in Fuentes:
'There is (under the Florida statute) no requirement that the applicant make a convincing showing before the seizure that the goods are, in fact, 'wrongfully detained.' Rather, Florida law automatically relies on the bare assertion of the party seeking the writ that he is entitled to one and allows a court clerk to issue the writ summarily. It requires only that the applicant file a complaint, initiating a court action for repossession and reciting in conclusory fashion that he is 'lawfully entitled to the possession' of the property, and that he file a security bond . . ..' 407 U.S., at 73—74, 92 S.Ct., at 1991 (emphasis added).
The Court noted that the Pennsylvania statute required even less than the Florida statute, since the party seeking the writ 'need not even formally allege that he is lawfully entitled to the property.' Id., at 78, 92 S.Ct., at 1993. All that was required was the filing of an "affidavit of the value of the property to be replevied." Ibid. Moreover, the Pennsylvania law did 'not require that there ever be opportunity for a hearing on the merits of the conflicting claims to possession of the replevied property.' Id., at 77, 92 S.Ct., at 1992.
2
See St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 93, 56 S.Ct. 720, 744, 80 L.Ed. 1033 (1936) (Stone and Cardozo, JJ., concurring in result); Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405, 406—408, 52 S.Ct. 443, 446, 447—448, 76 L.Ed. 815 (1932) (Brandeis, J., dissenting). For the view that stare decisis need not always apply even to questions of statutory interpretation, see Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 255, 90 S.Ct. 1583, 1594, 26 L.Ed.2d 199 (1970) (Stewart, J., concurring).
3
The Fuentes opinion relied primarily on Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). That case involved a prejudgment garnishment of wages in which the creditor had no pre-existing property interest. It is readily distinguishable from the instant case where the creditor does have a preexisting property interest as a result of the vendor's lien which attached upon execution of the installment sales contract. Indeed, depending on the number of installments which have been paid, the creditor's interest may often be greater than the debtor's. Thus, we deal here with mutual property interests, both of which are entitled to be safeguarded. Fuentes overlooked this vital point.
In addition, the Court recognized in Sniadach that prejudgment garnishment of wages could as a practical matter 'impose tremendous hardship' and 'drive a wage-earning family to the wall.' Id., at 340, 341—342, 89 S.Ct., at 1823. By contrast, there is no basis for assuming that sequestration of a debtor's goods would necessarily place him in such a 'brutal need' situation.
4
For a discussion of the far-reaching implications of the Fuentes rationale, see Clark & Landers, Sniadach, Fuentes and Beyond: The Creditor Meets the Constitution, 59 Va.L.Rev. 335 (1973). The authors suggest that Fuentes could require invalidation of many summary creditor remedies in their present form.
1
The Louisiana Supreme Court held that Fuentes did not govern the present case. Essentially, that court held that because the Louisiana vendor's privilege is defeated if the vendee alienates the property over which the vendor has the privilege, this case falls within the language in Fuentes that '(t)here may be cases in which a creditor could make a showing of immediate danger that a debtor will destroy or conceal disputed goods.' Fuentes v. Shevin, 407 U.S. 67, 93, 92 S.Ct. 1983, 2000, 32 L.Ed.2d 556 (1972). The Court today quite correctly does not embrace this rationale. In discussing the "extraordinary situations" that might justify the summary seizure of goods, the Fuentes opinion stressed that these situations 'must be truly unusual.' Id., at 90, 92 S.Ct., at 1999. Specifically, it referred to 'special situations demanding prompt action.' Id., at 93, 92 S.Ct., at 2000. In effect, the Louisiana Supreme Court held that all vendor-creditors in the State can be conclusively presumed to be in this 'special' situation, regardless of whether the individual vendor could make a showing of immediate danger in his particular case. But if the situation of all such vendors in a State could be conclusively presumed to meet the 'extraordinary,' 'unusual,' and 'special' conditions referred to in Fuentes, the basic constitutional rule of that case would be wholly obliterated in the State.
2
407 U.S., at 90—93, 92 S.Ct., at 1999—2000.
3
La.Code Civ.Proc.Ann., Art. 281 (1961).
4
The Louisiana authorities cited by the Court are not to the contrary. Wright v. Hughes, 254 So.2d 293 (La.Ct.App.1971), and Hancock Bank v. Alexander, 256 La. 643, 237 So.2d 669 (1970), stand only for the proposition that a writ should not issue unless the sworn allegations are formally sufficient, which may mean nothing more than that the proper standardized form be completely filled in.
5
See, e.g., North Dakota Board of Pharmacy v. Snyder's Drug Stores, 414 U.S. 156, 94 S.Ct. 407, 38 L.Ed.2d 379 (1973); Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954).
6
See, e.g., Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); and Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971).
7
See, e.g., Turner v. Colonial Finance Corp., 467 F.2d 202 (C.A.5 1972); Sena v. Montoya, 346 F.Supp. 5 (N.M.1972); Dorsey v. Community Stores Corp., 346 F.Supp. 103 (E.D.Wis.1972); Thorp Credit, Inc. v. Barr, 200 N.W.2d 535 (Iowa 1972); Inter City Motor Sales v. Judge of the Common Pleas Court for the City of Detroit, 42 Mich.App. 112, 201 N.W.2d 378 (1972); and Montoya v. Blackhurst, 84 N.M. 91, 500 P.2d 176 (1972).
8
Although Mr. Justice Powell and Mr. Justice Rehnquist were Members of the Court at the time that Fuentes v. Shevin was announced, they were not Members of the Court when that case was argued, and they did not participate in its 'consideration or decision.' 407 U.S., at 97, 92 S.Ct., at 2002.
| 12
|
416 U.S. 637
94 S.Ct. 1868
40 L.Ed.2d 431
Robert H. DONNELLY, Petitioner,v.Benjamin A. DeCHRISTOFORO.
No. 72—1570.
Argued Feb. 20, 1974.
Decided May 13, 1974.
Syllabus
During the course of a joint first-degree murder trial, respondent's codefendant pleaded guilty to second-degree murder, of which the trial court advised the jury, stating that the trial against respondent would continue. In his summation, the prosecutor stated that respondent and his counsel had said that they 'hope that you find him not guilty. I quite frankly think that they hope that you find him guilty of something a little less than first-degree murder.' Respondent's counsel objected and later sought an instruction that the remark was improper and should be disregarded. In its instructions, the trial court, after re-emphasizing the prosecutor's statement that his argument was not evidence, declared that the challenged remark was unsupported, and admonished the jury to ignore it. Respondent was convicted of first-degree murder. The State's highest court ruled that the prosecutor's remark, though improper, was not so prejudicial as to warrant a mistrial and that the trial court's instruction sufficed to safeguard respondent's rights. The District Court denied respondent's petition for a writ of habeas corpus. The Court of Appeals reversed, concluding that the challenged comment implied that respondent, like his codefendant, had offered to plead guilty to a lesser offense, but was refused and that the comment was thus potentially so misleading and prejudicial as to deprive respondent of a constitutionally fair trial. Held: In the circumstances of this case, where the prosecutor's ambiguous remark in the course of an extended trial was followed by the trial court's specific disapproving instructions, no prejudice amounting to a denial of constitutional due process was shown. Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690; Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 distinguished. Pp. 642—648.
1st Cir., 473 F.2d 1236, reversed.
David A. Mills, Danvers, Mass., for petitioner.
Paul T. Smith, Boston, Mass., for respondent.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Respondent was tried before a jury in Massachusetts Superior Court and convicted of first-degree murder.1 The jury recommended that the death penalty not be imposed, and respondent was sentenced to life imprisonment. He appealed to the Supreme Judicial Court of Massachusetts contending, inter alia, that certain of the prosecutor's remarks during closing argument deprived him of his constitutional right to a fair trial. The Supreme Judicial Court affirmed.2 That court acknowledged that the prosecutor had made improper remarks, but determined that they were not so prejudicial as to require reversal.
2
Respondent then sought habeas corpus relief in the United States District Court for the District of Massachusetts. The District Court denied relief, stating: '(T)he prosecutor's arguments were not so prejudicial as to deprive (DeChristoforo of his constitutional right to a fair trial.'3 The Court of Appeals for the First Circuit reversed by a divided vote.4 The majority held that the prosecutor's remarks deliberately conveyed the false impression that respondent had unsuccessfully sought to plead to a lesser charge and that this conduct was a denial of due process. We granted certiorari, 414 U.S. 974, 94 S.Ct. 273, 38 L.Ed.2d 216 (1973), to consider whether such remarks, in the context of the entire trial, were sufficiently prejudicial to violate respondent's due process rights. We hold they were not and so reverse.
3
* Respondent and two companions were indicted for the first-degree murder of Joseph Lanzi, a passenger in the car in which the defendants were riding. Police had stopped the car at approximately 4 a.m. on April 18, 1967, and had discovered Lanzi's dead body along with two firearms, one of which had been fired. A second gun, also recently fired, was found a short distance away. Respondent and one companion avoided apprehension at that time, but the third defendant was taken into custody. He later pleaded guilty to second-degree murder.
4
Respondent and the other defendant, Gagliardi, were finally captured and tried jointly. The prosecutor made little claim that respondent fired any shots but argued that he willingly assisted in the killing. Respondent, on the other hand, maintained that he was an innocent passenger. At the close of the evidence but before final argument, Gagliardi elected to plead guilty to a charge of second-degree murder. The court advised the jury that Gagliardi had pleaded guilty and that respondent's trial would continue.5 Respondent did not seek an instruction that the jury was to draw no inference from the plea, and no such instruction was given.
5
Respondent's claims of constitutional error focus on two remarks made by the prosecutor during the course of his rather lengthy closing argument to the jury. The first involved the expression of a personal opinion as to guilt,6 perhaps offered to rebut a somewhat personalized argument by respondent's counsel. The majority of the Court of Appeals agreed with the Supreme Judicial Court of Massachusetts that this remark was improper, but declined to rest its holding of a violation of due process on that remark.7 It turned to a second remark that it deemed 'more serious.'
6
The prosecutor's second challenged comment was directed at respondent's motives in standing trial: 'They (the respondent and his counsel) said they hope that you find him not guilty. I quite frankly think that they hope that you find him guilty of something a little less than first-degree murder.'8 Respondent's counsel objected immediately to the statement and later sought an instruction that the remark was improper and should be disregarded.9 The court then gave the following instruction:
7
'Closing arguments are not evidence for your consideration. . . .
8
'Now in his closing, the District Attorney, I noted, made a statement: 'I don't know what they want you to do by way of a verdict. They said they hope that you find him not guilty. I quite frankly think that they hope that you find him guilty of something a little less than first-degree murder.' There is no evidence of that whatsoever, of course, you are instructed to disregard that statement made by the District Attorney.
9
'Consider the case as though no such statement was made.'10
10
The majority of the Supreme Judicial Court of Massachusetts, though again not disputing that the remark was improper, held that it was not so prejudicial as to require a mistrial and further stated that the trial judge's instruction 'was sufficient to safeguard the defendant's rights.'11 Despite this decision and the District Court's denial of a writ of habeas corpus, the Court of Appeals found that the comment was potentially so misleading and prejudicial that it deprived respondent of a constitutionally fair trial.
11
The Court of Appeals reasoned that the jury would be naturally curious about respondent's failure to plead guilty and that this curiosity would be heightened by Gagliardi's decision to plead guilty at the close of the evidence. In this context, the court thought, the prosecutor's comment that respondent hoped for conviction on a lesser offense would suggest to the jury that respondent had sought to plead guilty but had been refused. Since the prosecutor was in a position to know such facts, the jury may well have surmised that respondent had already admitted guilt in an attempt to secure reduced charges. This, said the Court of Appeals, is the inverse of, but a parallel to, intentional suppression of favorable evidence. The prosecutor had deliberately misled the jury, and even if the statement was made thoughtlessly, 'in a first degree murder case there must be some duty on a prosecutor to be thoughtful.'12 Therefore, the District Court had erred in denying respondent's petition.
II
12
The Court of Appeals in this case noted, as petitioner urged, that its review was 'the narrow one of due process, and not the broad exercise of supervisory power that (it) would possess in regard to (its) own trial court.'13 We regard this observation as important for not every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes a 'failure to observe that fundamental fairness essential to the very concept of justice.' Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166 (1941). We stated only this Term in Cupp. v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973), when reviewing an instruction given in a state court:
13
'Before a federal court may overturn a conviction resulting from a state trial in which this instruction was used, it must be established not merely that the instruction is undesirable, erroneous, or even 'universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment.'14
14
This is not a case in which the State has denied a defendant the benefit of a specific provision of the Bill of Rights, such as the right to counsel, Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), or in which the prosecutor's remarks so prejudiced a specific right, such as the privilege against compulsory self-incrimination, as to amount to a denial of that right. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).15 When specific guarantees of the Bill of Rights are involved, this Court has taken special care to assure that prosecutorial conduct in no way impermissibly infringes them. But here the claim is only that a prosecutor's remark about respondent's expectations at trial by itself so infected the trial with unfairness as to make the resulting conviction a denial of due process. We do not believe that examination of the entire proceedings in this case supports that contention.
15
Conflicting inferences have been drawn from the prosecutor's statement by the courts below. Although the Court of Appeals stated flatly that 'the prosecuting attorney turned Gagliardi's plea into a telling stroke against (DeChristoforo)'16 by implying respondent had offered to plead guilty as well, the dissent found the inference to be 'far less obvious.'17 The Supreme Judicial Court of Massachusetts stated that it considered the same argument illogical:
16
'It is not logical to conclude that the jury would accept any implied argument of the prosecutor that, because one of the men whom the defendant blamed for the murder had pleaded guilty, the defendant was any less firm in his assertion that he himself was not guilty of any crime whatsoever.'18
17
Thus it is by no means clear that the jury did engage in the hypothetical analysis suggested by the majority of the Court of Appeals, or even probable that it would seize such a comment out of context and attach this particular meaning to it. Five Justices of the Supreme Judicial Court of Massachusetts and at least one federal judge have all confessed difficulty in making this speculative connection.
18
In addition, the trial court took special pains to correct any impression that the jury could consider the prosecutor's statements as evidence in the case. The prosecutor, as is customary, had previously told the jury that his argument was not evidence,19 and the trial judge specifically re-emphasized that point. Then the judge directed the jury's attention to the remark particularly challenged here, declared it to be unsupported, and admonished the jury to ignore it.20 Although some occurrences at trial may be too clearly prejudicial for such a curative instruction to mitigate their effect, the comment in this case is hardly of such character.
19
In Cupp v. Naughten, supra, the respondent had challenged his conviction on the ground that a 'presumption of truthfulness' instruction, given by the state trial court, had deprived him of the presumption of innocence and had shifted the State's burden of proof to himself. Holding that the instruction, although perhaps not advisable, did not violate due process, we stated:
20
'In determining the effect of this instruction on the validity of respondent's conviction, we accept at the outset the well-established proposition that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge. Boyd v. United States, 271 U.S. 104, 107 (46 S.Ct. 442, 443, 70 L.Ed. 857) (1926). While this does not mean that an instruction by itself may never rise to the level of constitutional error, see Cool v. United States, 409 U.S. 100 (93 S.Ct. 354, 34 L.Ed.2d 335) (1972), it does recognize that a judgment of conviction is commonly the culmination of a trial which includes testimony of witnesses, argument of counsel, receipt of exhibits in evidence, and instruction of the jury by the judge. Thus not only is the challenged instruction but one of many such instructions, but the process of instruction itself is but one of several components of the trial which may result in the judgment of conviction.'21
21
Similarly, the prosecutor's remark here, admittedly an ambiguous one, was but one moment in an extended trial and was followed by specific disapproving instructions. Although the process of constitutional line drawing in this regard is necessarily imprecise, we simply do not believe that this incident made respondent's trial so fundamentally unfair as to deny him due process.
III
22
We do not find the cases cited by the Court of Appeals to require a different result. In Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967), the principal case relied upon, this Court held that a state prisoner was entitled to federal habeas relief upon a showing that a pair of stained undershorts, allegedly belonging to the prisoner and repeatedly described by the State during trial as stained with blood, was in fact stained with paint. In the course of its opinion, this Court said:
23
'It was further established that counsel for the prosecution had known at the time of the trial that the shorts were stained with paint. . . .
24
'. . . The record of the petitioner's trial reflects the prosecution's consistent and repeated misrepresentation that People's Exhibit 3 was, indeed, 'a garment heavily stained with blood." Id., at 6, 87 S.Ct., at 787.
25
A long series of decisions of this Court,22 of course, had established the proposition that the 'Fourteenth Amendment cannot tolerate a state criminal conviction obtained by the knowing use of false evidence.' Id., at 7, 87 S.Ct., at 788. The Court in Miller found those cases controlling.
26
We countenance no retreat from that proposition in observing that it falls far short of embracing the prosecutor's remark in this case. The 'consistent and repeated misrepresentation' of a dramatic exhibit in evidence may profoundly impress a jury and may have a significant impact on the jury's deliberations. Isolated passages of a prosecutor's argument, billed in advance to the jury as a matter of opinion not of evidence, do not reach the same proportions. Such arguments, like all closing arguments of counsel, are seldom carefully constructed in toto before the event; improvisation frequently results in syntax left imperfect and meaning less than crystal clear. While these general observations in no way justify prosecutorial misconduct, they do suggest that a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.
27
The Court of Appeals' reliance on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1973), is likewise misplaced. In Brady, the prosecutor had withheld evidence, a statement by the petitioner's codefendant, which was directly relevant to the extent of the petitioner's involvement in the crime. Since the petitioner had testified that his codefendant had done the actual shooting and since the petitioner's counsel was not contesting guilt but merely seeking to avoid the death penalty, evidence of the degree of the petitioner's participation was highly significant to the primary jury issue. As in Miller, manipulation of the evidence by the prosecution was likely to have an important effect on the jury's determination. But here there was neither the introduction of specific misleading evidence important to the prosecution's case in chief nor the nondisclosure of specific evidence valuable to the accused's defense. There were instead a few brief sentences in the prosecutor's long and expectably hortatory closing argument which might or might not suggest to a jury that the respondent had unsuccessfully sought to bargain for a lesser charge. We find nothing in Brady to suggest that due process is so easily denied.
28
The result reached by the Court of Appeals in this case leaves virtually meaningless the distinction between ordinary trial error of a prosecutor and that sort of egregious misconduct held in Miller and Brady, supra, to amount to a denial of constitutional due process.23 Since we believe that distinction should continue to be observed, we reverse the judgment of the Court of Appeals.
29
It is so ordered.
30
Reversed.
31
Mr. Justice STEWART, with whom Mr. Justice WHITE joins (concurring).
32
I agree with my Brother Douglas that, when no new principle of law is presented, we should generally leave undisturbed the decision of a court of appeals that upon the particular facts of any case habeas corpus relief should be granted—or denied. For this reason I think it was a mistake to grant a writ of certiorari in this case, and I would now dismiss the writ as improvidently granted.
33
We are bound here, however, by the 'rule of four.' That rule ordains that the votes of four Justices are enough to grant certiorari and bring a case before the Court for decision on the merits. If as many as four Justices remain so minded after oral argument, due adherence to that rule requires me to address the merits of a case, however strongly I may feel that it does not belong in this Court. See Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 559, 77 S.Ct. 459, 478, 1 L.Ed.2d 515 (separate opinion of Harlan, J.).
34
Upon this premise, I join the Court's opinion.
35
Mr. Justice DOUGLAS (dissenting).
36
The function of the prosecutor under the Federal Constitution is not to tack as many skins of victims as possible to the wall. His function is to vindicate the right of people as expressed in the laws and give those accused of crime a fair trial. As stated by the Court in Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314:
37
'The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.'
38
We have here a state case, not a federal one; and the prosecutor is a state official. But we deal with an aspect of a fair trial which is implicit in the Due Process Clause of the Fourteenth Amendment by which the States are bound. Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297; Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600; Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424; Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751.
39
In this case respondent was charged with first-degree murder and was convicted in the state court by a jury. At no time did he seek to plead guilty to a lesser offense. It is stipulated:
40
'(A)t no time did defendant seek to plead guilty to any offense; at no time did the Commonwealth seek to solicit or offer to accept a plea; and at all times defendant insisted upon a trial.'
41
A codefendant pleaded guilty to second-degree murder and the jury was advised of the fact.
42
As to the guilt of respondent the prosecutor told the jury: 'I honestly and sincerely believe that there is no doubt in this case, none whatsoever.'
43
And he went on to say: 'I quite frankly think that they hope that you find him guilty of something a little less than first-degree murder.'
44
These statements in the setting of the case and in light of the fact that the jury knew the codefendant had pleaded guilty to second-degree murder, are a subtle equivalent of a statement by the prosecutor that respondent sought a lesser penalty. Counsel for respondent immediately objected but the court at the time did not admonish the prosecutor or tell the jury to disregard the statement, though it did cover the matter later in its general instructions.
45
* As a matter of federal law the introduction of a withdrawn plea of guilty is not admissible evidence, Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009. As a matter of procedural due process the Confrontation Clause of the Sixth Amendment, applicable to the States by reason of the Fourteenth Amendment, pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923, would bar a person from testifying that the defendant had sought a guilty plea unless the right of cross-examination of the witness was afforded, id., at 406—408, 85 S.Ct., at 1069—1070. That requirement of procedural due process should be sedulously enforced (save for the recognized exceptions of dying declarations and the like, id., 407, 85 S.Ct., at 1069—1070) lest the theory that the end justifies the means gains further footholds here. The prosecutor is not a witness; and he should not be permitted to add to the record either by subtle or gorss improprieties. Those who have experienced the full thrust of the power of government when leveled against them know that the only protection the citizen has is in the requirement for a fair trial. The assurance of the Court that we make no retreat from constitutional government by today's decision has therefore a hollow ring.
46
Activist judges have brought federal habeas corpus into disrepute at the present time. It is guaranteed by the Constitution. It is a built-in restraint on judges—both state and federal; and it is also a restraint on prosecutors who are officers of the court. Our activist tendencies should promote not law and order, but constitutional law and order. Judges, too, can be tyrants and often have been. Prosecutors are often eager to take almost any shortcut to win, yet as I have said they represent not an ordinary party but We the People. As I have noted, their duty is as much 'to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one,' Berger v. United States, surpa, 295 U.S., at 88, 55 S.Ct. at 633.
47
It is, I submit, quite 'improper' for a prosecutor to insinuate to the jury the existence of evidence not in the record and which could not be introduced without the privilege of cross-examination.
II
48
The Supreme Judicial Court of Massachusetts had difficulty with this case when it came before it on direct appeal, two Justices, which included the Chief Justice, dissenting,* Commonwealth v. DeChristoforo, 360 Mass., 531, 277 N.E.2d 100. The Court of Appeals was also divided, 473 F.2d 1236. Our federal district courts and courts of appeals are much closer to law administration in the respective States than are we in Washington, D.C. They are responsible federal judges who know the Federal Constitution as well as we do. Their error in issuing the Great Writ—or in refusing to do so—would in my judgment have to be egregious for us to grant a petition for certiorari. When a Court of Appeals honors the Constitution by granting the Great Writ or in its solemn judgment denies it, we should let the matter rest there, save for manifest error.
49
I would affirm the judgment below.
50
Mr. Justice BRENNAN and Mr. Justice MARSHALL would affirm the judgment below for the reasons stated in Part II of the dissent of Mr. Justice DOUGLAS.
1
Respondent and his codefendants were also indicted for illegal possession of firearms, and respondent received a four- to five-year sentence on that charge. The conviction is in on way related to the issues before the Court in this case.
2
Commonwealth v. DeChristoforo, 360 Mass. 531, 277 N.E.2d 100 (1971).
3
App. 231.
4
473 F.2d 1236 (1973).
5
The trial court stated:
'Mr. Foreman, madam and gentlemen of the jury. You will notice that the defendant Gagliardi is not in the dock. He has pleaded 'guilty,' and his case has been disposed of.
'We will, therefore, go forward with the trial of the case of Commonwealth vs DeChristoforo.' App. 99.
6
The challenged remark was: 'I honestly and sincerely believe that there is no doubt in this case, none whatsoever.' Id., at 130.
7
The Court of Appeals noted: '(A)t least the jury knows that the prosecutor is an advocate and it may be expected, to some degree, to discount such remarks as seller's talk.' 473 F.2d, at 1238.
8
App. 129.
9
No instruction was sought at the time although the court apparently was willing to '(H)ad there been a motion made by you at that time to have me instruct the jury along the lines of eliminating that from their minds, or something of that nature, I certainly would have complied, because I did consider at the time the argument was beyond the grounds of complete propriety, but certainly far from being grounds for a mistrial.' Id., at 133.
10
Id., at 143—144.
11
360 Mass., at 538, 277 N.E.2d, at 105.
12
473 F.2d, at 1240.
13
Id., at 1238.
14
414 U.S., at 146, 94 S.Ct., at 400.
15
Respondent does suggest that the prosecutor's statements may have deprived him of the right to confrontation. See Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). But this argument is without merit, for the prosecutor here simply stated his own opinions and introduced no statements made by persons unavailable for questioning at trial.
16
473 F.2d, at 1239.
17
Id., at 1241 (Campbell, J., dissenting).
18
App. 157.
19
Id., at 119.
20
See n. 10, supra.
21
414 U.S., at 146—147, 94 S.Ct., at 400.
22
See, e.g., Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).
23
We do not, by this decision, in any way condone prosecutorial misconduct, and we believe that trial courts, by admonition and instruction, and appellate courts, by proper exercise of their supervisory power, will continue to discourage it. We only say that, in the circumstances of the case, no prejudice amounting to a denial of constitutional due process was shown.
*
Chief Justice Tauro said in dissent:
'The prosecutor's argument in the instant case permitted or perhaps even suggested an inference that the defendant had conceded his guilt and was merely hoping for something a little less than a verdict of murder in the first degree. This diminished his change for a fair trial to a far greater degree than would have the publication in a newspaper of his criminal background. Unlike a newspaper, the prosecutor ostensibly speaks with the authority of his office. The prosecutor's 'personal status and his role as a spokesman for the government tend(ed) to give to what he . . . (said) the ring of authenticity . . . tend(ing) to impart an implicit stamp of believability.' Hall v. United States, 419 F.2d 582, 583—584 (5th Cir.). The prosecutor's remarks probably called for a mistrial. In any event the judge's failure to instruct the jury adequately and with sufficient force to eliminate the serious prejudice to the defendant constitutes fatal error. Moreover, the judge's routine final instructions to the jury were far from sufficient to correct the error. By then the defendant's position had so deteriorated that his chances for a fair deliberation of his fate by the jury were virtually eliminated.' 360 Mass., at 549 550, 277 N.E.2d, at 112.
| 01
|
40 L.Ed.2d 336
94 S.Ct. 1876
416 U.S. 500
Edwin A. SNOW et ux., Petitioners,v.COMMISSIONER OF INTERNAL REVENUE.
No. 73—641.
Argued April 16, 1974.
Decided May 13, 1974.
Syllabus
Petitioner Edwin A. Snow, who had advanced part of the capital in a partnership formed in 1966 to develop a special-purpose incinerator and had become a limited partner, was disallowed a deduction under § 174(a)(1) of the Internal Revenue Code of 1954, on his individual income tax return for that year for his pro rata share of the partnership's operating loss. Though there were no sales in 1966, expectations were high and the inventor-partner was giving about a third of his time to the project, an outside engineering firm doing the shopwork. The Tax Court and the Court of Appeals both upheld disallowance of the deduction, which § 174(a)(1) provides for 'experimental expenditures which are paid or incurred by (the taxpayer) during the taxable year in connection with his trade or business as expenses which are not chargeable to capital account.' Held: It was error to disallow the deduction, which was 'in connection with' petitioner's trade or business, and the disallowance was contrary to the broad legislative objective of the Congress when it enacted § 174 to provide an economic incentive, especially for small and growing businesses, to engage in the search for new products and new inventions. Pp. 502—504.
482 F.2d 1029, reversed.
Burgess L. Doan, Cincinnati, Ohio, for petitioners.
Stuart A. Smith, Washington, D.C., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Section 174(a)(1) of the Internal Revenue Code of 1954, 26 U.S.C. § 174(a)(1), allows a taxpayer to take as a deduction 'experimental expenditures which are paid or incurred by him during the taxable year in connection with his trade or business as expenses which are not chargeable to capital account.' Petitioner Edwin A. Snow (hereafter petitioner) was disallowed as a deduction his distributive share of the net operating loss of a partnership, Burns Investment Company, for the taxable year 1966. The United States Tax Court sustained the Commissioner, 58 T.C. 585. The Court of Appeals for the Sixth Circuit affirmed, 482 F.2d 1029 (1973). The case is here on a writ of certiorari because of an apparent conflict between that court and the Fourth Circuit in Cleveland v. Commissioner, 297 F.2d 169 (1961).
2
Petitioner was a limited partner in Burns, having contributed $10,000 for a four-percent interest in Burns. The general partner was one Trott who had previously formed two other limited partnerships, one called Echo, to develop a telephone answering device and the other Courier, to develop an electronic tape recorder. Petitioner had become a limited partner in each of these other partnerships.1
3
Burns was formed to develop 'a special purpose incinerator for the consumer and industrial markets.' Trott was the inventor and had conceived of this idea in 1964 and between then and 1966 had made a number of prototypes. His patent counsel had told him in 1965 that several features of the burner were in his view patentable but in 1966 advised him that the incinerator as a whole had not been sufficiently 'reduced to practice' in order to develop it into a marketable product. At that point Trott formed Burns, petitioner putting up part of the capital. Thereafter various models of the burner were built and tested.
4
During 1966 Burns reported no sales of the incinerator or any other product but expectations were high; and Trott was giving about one-third of his time to the project, an outside engineering firm doing the shopwork.2
5
Trott obtained a patent on the incinerator in 1970, and it is currently being produced and marketed under the name Trash-Away.3
6
Section 174 was enacted in 1954 to dilute some of the conception of 'ordinary and necessary' business expenses under § 162(a) (then § 23(a)(1) of the Internal Revenue Code of 1939) adumbrated by Mr. Justice Frankfurter in a concurring opinion in Deputy v. DuPont, 308 U.S. 488, 499, 60 S.Ct. 363, 369, 84 L.Ed. 416 (1940), where he said that the section in question (old § 23(a)) 'involves holding one's self out to others as engaged in the selling of goods or services.' The words 'trade or business' appear, however, in about 60 different sections of the 1954 Act.4 Those other sections are not helpful here because Congress wrote into § 174(a)(1) 'in connection with', and § 162(a) is more narrowly written than is § 174, allowing 'a deduction' of 'ordinary and necessary expenses paid or incurred . . . in carrying on any trade or business.' That and other sections are not helpful here.
7
The legislative history makes fairly clear the reasons. Establish firms with ongoing business had continuous programs of research quite unlike small or pioneering business enterprises.5 Mr. Reed of New York, Chairman of the House Committee on Ways and Means, made the point even more explicit when he addressed the House on the bill:6
8
'Present law contains no statutory provision dealing expressly with the deduction of these expenses. The result has been confusion and uncertainty. Very often, under present law small businesses which are developing new products and do not have established research departments are not allowed to deduct these expenses despite the fact that their large and well-established competitors can obtain the deduction . . .. This provision will greatly stimulate the search for new products and new inventions upon which the future economic and military strength of our Nation depends. It will be particularly valuable to small and growing businesses.' (Emphasis added.)
9
Congress may at times in its wisdom discriminate taxwise between various kinds of business, between old and oncoming business and the like. But we would defeat the congressional purpose somewhat to equalize the tax benefits of the ongoing companies and those that are upcoming and about to reach the market by perpetuating the discrimination created below and urged upon us here.
10
We read § 174 as did the Court of Appeals for the Fourth Circuit in Cleveland 'to encourage expenditure for research and experimentation.' 297 F.2d, at 173. That incentive is embedded in § 174 because of 'in connection with,' making irrelevant whether petitioners were rich or poor.
11
We are invited to explore the treatment of 'hobby-losses' under § 183. But that is far afield of the present inquiry for it is clear that in this case under § 174 the profit motive was the sole drive of the venture.
12
Reversed.
13
Mr. Justice STEWART took no part in the consideration or decision of this case.
1
Both Echo and Courier claimed research and development expenses in 1965 and 1966; and they were not challenged by the Commissioner, apparently because their products were in a more advanced stage of development and were available for sale or licensing.
2
Treasury Regulation § 1.174—2(a)(2) provides: 'The provisions of this section apply not only to costs paid or incurred by the taxpayer for research or experimentation undertaken directly by him but also to expenditures paid or incurred for research or experimentation carried on in his behalf by another person or organization (such as . . . (an) engineering company, or similar contractor) . . ..'
3
Prior to 1970 Burns was incorporated and it produces and markets Trash-Away, petitioner being its Chairman of the Board.
4
Saunders, 'Trade or Business,' Its Meaning Under the Internal Revenue Code, U. So. Cal.12th 12th Inst. on Fed.Tax. 693 (1960).
5
Hearings on H.R. 8300 before the Senate Committee on Finance, 83d Cong., 2d Sess., pt. 1, p. 105.
6
100 Cong.Rec. 3425 (1954).
| 1112
|
416 U.S. 505
94 S.Ct. 1820
40 L.Ed.2d 341
UNITED STATES, Petitioner,v.Dominic Nicholas GIORDANO et al.
No. 72—1057.
Argued Jan. 8, 1974.
Decided May 13, 1974.
Syllabus
Title III of the Omnibus Crime Control and Safe Streets Act of 1968 provides in 18 U.S.C. § 2516(1) that 'the Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge . . . for . . . an order authorizing or approving the interception of wire or oral communications' by federal investigative agencies seeking evidence of certain designated offenses; and further provides that the contents of intercepted communications, or evidence derived therefrom, may not be received in evidence at a trial if the disclosure of the information would violate Title III, 18 U.S.C. § 2515, and may be suppressed on the ground, inter alia, that the communication was 'unlawfully intercepted,' 18 U.S.C. § 2518(10)(a)(i). In this case an application purportedly authorized by a specially designated Assistant Attorney General for an order permitting the wiretap of the telephone of respondent Giordano, a narcotics offense suspect, was submitted to the Chief Judge of the District Court, who then issued an interception order, and later an extension order based on a similar application but also including information obtained from the previously authorized interception and extending the authority to conversations of additional named individuals calling to or from Giordano's telephone. The interception was terminated when Giordano and the other respondents were arrested and charged with narcotics violations. During suppression hearings, it developed that the wiretap applications had not in fact been authorized by a specially designated Assistant Attorney General, but that the initial application was authorized by the Attorney General's Executive Assistant and the extension application had been approved by the Attorney General himself. The District Court sustained the motions to suppress on the ground that the Justice Department officer approving each application had been misidentified in the applications and intercept orders. The Court of Appeals affirmed, but on the ground that the initial authorization violated § 2516(1), thereby requiring suppression of the wiretap and derivative evidence under §§ 2515 and 2518(10) (a)(i), inter alia. Held:
1. Congress did not intend the power to authorize wiretap applications to be exercised by any individuals other than the Attorney General or an Assistant Attorney General specially designated by him. Pp. 512—523.
(a) Notwithstanding 28 U.S.C. § 510, which authorizes the Attorney General to delegate any of his functions to any other officer, employee, or agency of the Justice Department, § 2516(1), fairly read, was intended to limit the power to authorize wiretap applications to the Attorney General himself and to any Assistant Attorney General he might designate. Pp. 512—514.
(b) This interpretation of § 2516(1) is strongly supported by the purpose of the Act effectively to prohibit all interceptions of oral and wire communications, except those specifically provided for, and by its legislative history. Pp. 514—523.
2. Primary or derivative evidence secured by wire interceptions pursuant to a court order issued in response to an application which was, in fact, not authorized by the Attorney General or a specially designated Assistant Attorney General must be suppressed under § 2515 upon a motion properly made under § 2518(10)(a), and hence the evidence obtained from the interceptions pursuant to the initial court order was properly suppressed. Pp. 524—529.
(a) Under § 2518(10)(a)(i) the words 'unlawfully intercepted' are not limited to constitutional violations, but the statute was intended to require suppression where there is a failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device. Pp. 524—528.
(b) Since Congress intended to condition the use of intercept procedures upon the judgment of a senior Justice Department official that the situation is one of those warranting their use, thus precluding resort to wiretapping in various situations where investigative personnel would otherwise seek intercept authority from the court and the court would very likely authorize its use, it is evident that the provision for pre-application approval was intended to play a central role in the statutory scheme and that suppression must follow when it is shown that this statutory requirement has been ignored. Pp. 528—529.
3. Communications intercepted pursuant to the extension order were inadmissible, since they were evidence derived from the communications invalidly intercepted pursuant to the initial order. Pp. 529—533.
4 Cir., 469 F.2d 522, affirmed.
Sol. Gen. Robert H. Bork, for petitioner.
H. Russell Smouse, Bltimore, Md., for respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 211—225, 18 U.S.C. §§ 2510—2520, prescribes the procedure for securing judicial authority to intercept wire communications in the investigation of specified serious offenses. The Court must here determine whether the Government sufficiently complied with the required application procedures in this case and whether, if not, evidence obtained as a result of such surveillance, under a court order based on the applications, is admissible at the criminal trial of those whose conversations were overheard. In particular, we must decide whether the provision of 18 U.S.C. s 2516(1)1 conferring power on the 'Attorney General, or any Assistant Attorney General specially designated by the Attorney General' to 'authorize an application to a Federal judge . . . for . . . an order authorizing or approving the interception of wire or oral communications' by federal investigative agencies seeking evidence of certain designated offenses permits the Attorney General's Executive Assistant to validly authorize a wiretap application to be made. We conclude that Congress did not intend the power to authorize wiretap applications to be exercised by any individuals other than the Attorney General or an Assistant Attorney General specially designated by him and that primary or derivative evidence secured by wire interceptions pursuant to a court order issued in response to an application which was, in fact, not authorized by one of the statutorily designated officials must be suppressed under 18 U.S.C. § 2515 upon a motion properly made under 18 U.S.C. § 2518(10)(a). Accordingly, we affirm the judgment of the Court of Appeals.
2
* In the course of an initial investigation of suspected narcotics dealings on the part of respondent Giordano, it developed that Giordano himself sold narcotics to an undercover agent on October 5, 1970, and also told an informant to call a specified number when interested in transacting narcotics business. Based on this and other information, Francis Brocato, an Assistant United States Attorney, on October 16, 1970, submitted an application to the Chief Judge of the District of Maryland for an order permitting interception of the communications of Giordano, and of others as yet unknown, to or from Giordano's telephone. The application recited that Assistant Attorney General Will Wilson had been specially designated by the Attorney General to authorize the application. Attached to the application was a letter from Will Wilson to Brocato which stated that Wilson had reviewed Brocato's request for authorization and had made the necessary probable-cause determinations and which then purported to authorize Brocato to proceed with the application to the court. Also attached were various affidavits of law enforcement officers stating the reasons and justification for the proposed interception. Upon reviewing the application, the Chief Judge issued an order on the same day authorizing the interception 'pursuant to application authorized by the Assistant Attorney General . . . Will Wilson, who has been specially designated in this proceeding by the Attorney General . . . to exercise the powers conferred on him by (18 U.S.C. § 2516).' On November 6, the same judge extended the intercept authority based on an application similar in form to the original, but also including information obtained from the interception already authorized and carried out and extending the authority to conversations of additional named individuals calling from or to Giordano's telephone. The interception was terminated on November 18 when Giordano and the other respondents were arrested and charged with violations of the narcotics laws.
3
Suppression hearings followed pretrial notification by the Government, see § 2518(9), that it intended to use in evidence the results of the court-authorized interceptions of communications on Giordano's telephone. It developed at the hearings that the applications for interception authority presented to the District Court had inaccurately described the official who had authorized the applications and that neither the initial application for the October 16 order nor the application for the November 6 extension order had been approved and authorized by Assistant Attorney General Will Wilson, as the applications had indicated. An affidavit of the Executive Assistant to the Attorney General divulged that he, the Executive Assistant, had reviewed the request for authorization to apply for the initial order, had concluded, from his 'knowledge of the Attorney General's actions on previous cases, that he would approve the request if submitted to him,' and, because the Attorney General was then on a trip away from Washington, D.C., and pursuant to authorization by the Attorney General for him to do so in such circumstances, had approved the request and caused the Attorney General's initials to be placed on a memorandum to Wilson instructing him to authorize Brocato to proceed. The affidavit also stated that the Attorney General himself had approved the November 6 request for extension and had initialed the memorandum to Wilson designating him to authorize Brocato to make application for an extension order. It was also revealed that although the applications recited that they had been authorized by Will Wilson, he had not himself reviewed Brocato's applications, and that his action was at best only formal authorization to Brocato. Furthermore, it became apparent that Wilson did not himself sign either of the letters bearing his name and accompanying the applications to the District Court. Instead, it appeared that someone in Wilson's office had affixed his signature after the signing of the letters had been authorized by a Deputy Assistant Attorney General in the Criminal Division who had, in turn, acted after the approval of the request for authorization had occurred in and had been received from the Office of the Attorney General.
4
The District Court sustained the motions to suppress on the ground that the officer in the Justice Department approving each application had been misidentified in the applications and intercept orders, in violation of 18 U.S.C. § 2518(1)(a) and (a)(d), United States v. Focarile, 340 F.Supp. 1033, 1060 (D.C.Md.1972). On the Government's pretrial appeal under 18 U.S.C. § 3731, the Court of Appeals affirmed on the different ground that the authorization of the October 16 wiretap application by the Attorney General's Executive Assistant violated § 2516(1) of the statute and struck at 'the very heart' of Title III, thereby requiring suppression of the wiretap and derivative evidence under §§ 2515 and 2518(10)(a)(1) and (ii).2 469 F.2d 522, 531 (CA4 1972). We granted certiorari to resolve the conflict with decisions of the Court of Appeals for the Second Circuit3 with respect to the administration of the circumscribed authority Congress has granted in Title III for the use of wiretapping and wiretap evidence by law enforcement officers. 411 U.S., 905, 93 S.Ct., 1530, 36 L.Ed.2d 194.
II
5
The United States contends that the authorization of intercept applications by the Attorney General's Executive Assistant was not inconsistent with the statute and that even if it were, there being no constitutional violation, the wiretap and derivative evidence should not have been ordered suppressed. We disagree with both contentions.4
6
Turning first to whether the statute permits the authorization of wiretap applications by the Attorney General's Executive Assistant, we begin with the language of § 2516(1), which provides that '(t)he Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize' an application for intercept authority. Plainly enough, the Executive Assistant is neither the Attorney General nor a specially designated Assistant Attorney General; but the United States argues that 28 U.S.C. § 509,5 deriving from the Reorganization Acts of 1949 and 1950, vests all functions of the Department of Justice, with some exceptions, in the Attorney General, and that Congress characteristically assigns newly created duties to the Attorney General rather than to the Department of Justice, thus making essential the provision for delegation appearing in 28 U.S.C. § 510:
7
'The Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.'
8
It is therefore argued that merely vesting a duty in the Attorney General, as it is said Congress did in § 2516(1), evinces no intention whatsoever to preclude delegation to other officers in the Department of Justice, including those on the Attorney General's own staff.
9
As a general proposition, the argument is unexceptionable. But here the matter of delegation is expressly addressed by § 2516, and the power of the Attorney General in this respect is specifically limited to delegating his authority to 'any Assistant Attorney General specially designated by the Attorney General.' Despite § 510, Congress does not always contemplate that the duties assigned to the Attorney General may be freely delegated. Under the Civil Rights Act of 1968, for instance, certain prosecutions are authorized only on the certification of the Attorney General or the Deputy Attorney General, 'which function of certification may not be delegated.' 18 U.S.C. § 245(a)(1). Equally precise language forbidding delegation was not employed in the legislation before us; but we think § 2516(1), fairly read, was intended to limit the power to authorize wiretap applications to the Attorney General himself and to any Assistant Attorney General he might designate. This interpretation of the statute is also strongly supported by its purpose and legislative history.
10
The purpose of the legislation, which was passed in 1968, was effectively to prohibit, on the pain of criminal and civil penalties,6 all interceptions of oral and wire communications, except those specifically provided for in the Act, most notably those interceptions permitted to law enforcement officers when authorized by court order in connection with the investigation of the serious crimes listed in § 2516. Judicial wiretap orders must be preceded by applications containing prescribed information, § 2518(1). The judge must make certain findings before authorizing interceptions, including the existence of probable cause, § 2518(3). The orders themselves must particularize the extent and nature of the interceptions that they authorize, § 2518(4), and they expire within a specified time unless expressly extended by a judge based on further application by enforcement officials, § 2518(5). Judicial supervision of the progress of the interception is provided for, § 2518(6), as is official control of the custody of any recordings or tapes produced by the interceptions carried out pursuant to the order, § 2518(8). The Act also contains provisions specifying the circumstances and procedures under and by which aggrieved persons may seek and obtain orders for the suppression of intercepted wire or oral communications sought to be used in evidence by the Government. § 2518(10) (a).
11
The Act is not as clear in some respects as it might be, but it is at once apparent that it not only limits the crimes for which intercept authority may be obtained but also imposes important preconditions to obtaining any intercept authority at all. Congress legislated in considerable detail in providing for applications and orders authorizing wiretapping and evinced the clear intent to make doubly sure that the statutory authority be used with restraint and only where the circumstances warrant the surreptitious interception of wire and oral communications. These procedures were not to be routinely employed as the initial step in criminal investigation. Rather, the applicant must state and the court must find that normal investigative procedures have been tried and failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous. § 2518(1)(c) and (3)(c). The Act plainly calls for the prior, informed judgment of enforcement officers desiring court approval for intercept authority, and investigative personnel may not themselves ask a judge for authority to wiretap or eavesdrop. The mature judgment of a particular, responsible Department of Justice official is interposed as a critical precondition to any judicial order.
12
The legislative history of the Act supports this view. As we have indicated, the Act was passed in 1968, but the provision of § 2516 requiring approval of applications by the Attorney General or a designated Assistant Attorney General dates from 1961, when a predecessor bill was being considered in the 87th Congress. Section 4(b) of that bill, S. 1495, which was also aimed at prohibiting all but designated official interception, initially provided that the 'Attorney General, or any officer of the Department of Justice or any United States Attorney specially designated by the Attorney General, may authorize any investigative or law enforcement officer of the United States or any Federal agency to apply to a judge' for a wire interception order. Hearings on Wiretapping and Eavesdropping Legislation before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 87th Cong., 1st Sess., 5 (1961). Under that phraseology, the authority was centered in the Attorney General, but he could empower any officer of the Department of Justice, including United States Attorneys and the Executive Assistant, to authorize applications for intercept orders. At hearings on the bill, the Assistant Attorneys General in charge of the Criminal Division stated the views of the Department of Justice, and the Department later officially proposed, that the authority to approve applications be substantially narrowed so that the Attorney General could delegate his authority only to an Assistant Attorney General. The testimony was:
13
'This is the approach of S. 1495, with which the Department of Justice is in general agreement. The bill makes wiretapping a crime unless specifically authorized by a Federal judge in situations involving specified crimes. As I understand the bill, the application for a court order could be made only by the authority of the Attorney General or an officer of the Department of Justice or U.S. Attorney authorized by him. I suggest that the bill should confine the power to authorize an application for a court order to the Attorney General and any assistant Attorney General whom he may designate. This would give greater assurance of a responsible executive determination of the need and justifiability of each interception.' Id., at 356.
14
The official proposal was that § 4(b) be changed to provide that the 'Attorney General, or any Assistant Attorney General of the Department of Justice specially designated by the Attorney General, may authorize' a wiretap application. Id., at 372.
15
S. 1495 was not enacted, but its provision limiting those who could approve applications for court orders survived and was included in almost identical form in later legislative proposals, including the bill that became Title III of the Act now before us.7 In the course of testimony before a House Committee in 1967, the draftsman of the bill containing the basic outline of Title III engaged in the following colloquy:
16
'The Chairman. . . . About the origin of the application, as I understand it, your bill provides it must be originated by the Attorney General or an Assistant Attorney General. Am I correct in that regard?
17
'Professor Blakey. Yes, you are, Mr. Chairman.
18
'The Chairman. The application must be made by the Attorney General or an Assistant Attorney General.
19
'Professor Blakey. If I am not mistaken, the present procedure is before any wiretapping or electronic equipment is used now it is generally approved at that level anyway, Mr. Chairman, and I would not want this equipment used without high level responsible officials passing on it. It may very well be that in some number of cases there will not be time to get the Attorney General to approve it. I think we are going to have just (sic) to let those cases go, and that if this equipment is to be used it ought to be approved by the highest level in the Department of Justice. If we cannot make certain cases, that is going to have to be the price we will have to pay.' Hearings on Anti-Crime Program before Subcommittee No. 5 of the House Committee on the Judiciary, 90th Cong., 1st Sess., 1379 (1967).8
20
As it turned out, the House Judiciary Committee did not report out a wiretap bill, but the House did pass H.R. 5037, entitled the 'Law Enforcement and Criminal Justice Assistance Act of 1967,' 113 Cong.Rec. 21861 (Aug. 8, 1967). The Senate amended that bill by adding to it Title III, which in turn essentially reflected the provisions of S. 917, which had been favorably reported by the Senate Judiciary Committee and which contained the Committee's own proposals with respect to the interception of oral and wire communications. The report on the bill stated:
21
'Section 2516 of the new chapter authorizes the interception of particular wire or oral communication under court order pursuant to the authorization of the appropriate Federal, State, or local prosecuting officer.
22
'Paragraph (1) . . . centralizes in a publicly responsible official subject to the political process the formulation of law enforcement policy on the use of electronic surveillance techniques. Centralization will avoid the possibility that divergent practices might develop. Should abuses occur, the lines of responsibility lead to an identifiable person. This provision in itself should go a long way toward guaranteeing that no abuses will happen.' S.Rep. No. 1097, 90th Cong., 2d Sess., 96—97 (1968).
23
This report is particularly significant in that it not only recognizes that the authority to apply for court orders is to be narrowly confined but also declares that it is to be limited to those responsive to the political process, a category to which the Executive Assistant to the Attorney General obviously does not belong.9
24
The Senate passed H.R. 5037, with the amendments tracking the provisions of S. 917, on May 23, 1968, as the Omnibus Crime Control and Safe Streets Act of 1968, 114 Cong.Rec. 14798 and 14889. During the proceedings leading to the passage of the bill, emphasis was again placed on § 2516. That the Attorney General had the exclusive authority to approve or provide for the approval of wiretap applications was reiterated, and it was made clear that as the bill was drafted no United States Attorney would have or could be given the authority to apply for an intercept order without the advance approval of a senior officer in the Department.10 There was no congressional attempt, however, to extend that authority beyond the Attorney General or his Assistant Attorney General designate.
25
The Government insists that because § 2516(2) provides for a wider dispersal of authority among state officers to approve wiretap applications and leaves the matter of delegation up to state law,11 it is inappropriate to confine the authority so narrowly on the federal level. But it is apparent that Congress desired to centralize and limit this authority where it was feasible to do so, a desire easily implemented in the federal establishment by confining the authority to approve wiretap applications to the Attorney General or a designated Assistant Attorney General. To us, it appears wholly at odds with the scheme and history of the Act to construe § 2516(1) to permit the Attorney General to delegate his authority at will, whether it be to his Executive Assistant or to any officer in the Department other than an Assistant Attorney General.12
III
26
We also reject the Government's contention that even if the approval by the Attorney General's Executive Assistant of the October 16 application did not comply with the statutory requirements, the evidence obtained from the interceptions should not have been suppressed. The issue does not turn on the judicially fashioned exclusionary rule aimed at deterring violations of Fourth Amendment rights, but upon the provisions of Title III; and, in our view, the Court of Appeals correctly suppressed the challenged wiretap evidence.
27
Section 2515 provides that no part of the contents of any wire or oral communication, and no evidence derived therefrom, may be received at certain proceedings, including trials, 'if the disclosure of that information would be in violation of this chapter.' What disclosures are forbidden, and are subject to motions to suppress, is in turn governed by § 2518(10)(a), which provides for suppression of evidence on the following grounds:
28
'(i) the communication was unlawfully intercepted; '(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or
29
'(iii) the interception was not made in conformity with the order of authorization or approval.'13
30
The Court of Appeals held that the communications the Government desired to offer in evidence had been 'unlawfully intercepted' within the meaning of paragraph (i), because the October application had been approved by the Executive Assistant to the Attorney General rather than by the Attorney General himself or a designated Assistant Attorney General.14 We have already determined that delegation to the Executive Assistant was indeed contrary to the statute; but the Government contends that approval by the wrong official is a statutory violation only and that paragraph (i) must be construed to reach constitutional, but not statutory, violations.15 The argument is a straightforward one based on the structure of § 2518(10)(a). On the one hand, the unlawful interceptions referred to in paragraph (i) must include some constitutional violations. Suppression for lack of probable cause, for example, is not provided for in so many words and must fall within paragraph (i) unless, as is most unlikely, the statutory suppression procedures were not intended to reach constitutional violations at all. On the other hand paragraphs (ii) and (iii) plainly reach some purely statutory defaults without constitutional overtones, and these omissions cannot be deemed unlawful interceptions under paragraph (i), else there would have been no necessity for paragraphs (ii) and (iii) or to put the matter another way, if unlawful interceptions under paragraph (i) include purely statutory issues, paragraphs (ii) and (iii) are drained of all meaning and are surplusage. The conclusion of the argument is that if non-constitutional omissions reached by paragraphs (ii) and (iii) are not unlawful interceptions under paragraph (i), then there is no basis for holding that 'unlawful interceptions' include any such statutory matters; the only purely statutory transgressions warranting suppression are those falling within paragraphs (ii) and (iii).
31
The position gains some support from the fact that predecessor bills specified a fourth ground for suppression—the lack of probable cause—which was omitted in subsequent bills, apparently on the ground that it was not needed because official interceptions without probable cause would be unlawful within the meaning of paragraph (i).16 Arguably, the inference is that since paragraphs (ii) and (iii) were retained, they must have been considered 'necessary,' that is, not covered by paragraph (i).
32
The argument of the United States has substance, and it does appear that paragraphs (ii) and (iii) must be deemed to provide suppression for failure to observe some statutory requirements that would not render interceptions unlawful under paragraph (i). But it does not necessarily follow, and we cannot believe, that no statutory infringements whatsoever are also unlawful interceptions within the meaning of paragraph (i). The words 'unlawfully intercepted' are themselves not limited to constitutional violations, and we think Congress intended to require suppression where there is failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device. We have already determined that Congress intended not only to limit resort to wiretapping to certain crimes and situations where probable cause is present but also to condition the use of intercept procedures upon the judgment of a senior official in the Department of Justice that the situation is one of those warranting their use. It is reasonable to believe that such a precondition would inevitably foreclose resort to wiretapping in various situations where investigative personnel would otherwise seek intercept authority from the court and the court would very likely authorize its use. We are confident that the provision for pre-application approval was intended to play a central role in the statutory scheme and that suppression must follow when it is shown that this statutory requirement has been ignored.
33
The principal piece of legislative history relative to this question is S.Rep. No. 1097, 90th Cong., 2d Sess. (1968). The Government emphasizes that the report expressly states that § 2518(10)(a) 'largely reflects existing law' and that there was no intention to 'press the scope of the suppression role beyond present search and seizure law.' Id. at 96. But the report also states that the section provides for suppression of evidence directly or indirectly obtained 'in violation of the chapter' and that the provision 'should serve to guarantee that the standards of the new chapter will sharply curtail the unlawful interception of wire and oral communications.'17 Moreover, it would not extend existing search-and-seizure law for Congress to provide for the suppression of evidence obtained in violation of explicit statutory prohibitions. Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314 (1937); Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939).18
IV
34
Even though suppression of the wire communications intercepted under the October 16, 1970, order is required, the Government nevertheless contends that communications intercepted under the November 6 extension order are admissible because they are not 'evidence derived' from the contents of communications intercepted under the October 16 order within the meaning of §§ 2515 and 2518(10)(a). This position is untenable.
35
Under § 2518, extension orders do not stand on the same footing as original authorizations but are provided for separately. 'Extensions of an order may be granted, but only upon application for an extension made in accordance with subsection (1) of this section and the court making the findings required by subsection (3) of this section.' § 2518(5). Under subsection (1)(e), applications for extensions must reveal previous applications and orders, and under (1)(f) must contain 'a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results.' Based on the application, the court is required to make the same findings that are required in connection with the original order; that is, it must be found not only that there is probable cause in the traditional sense and that normal investigative procedures are unlikely to succeed but also that there is probable cause for believing that particular communications concerning the offense will be obtained through the interception and for believing that the facilities or place from which the wire or oral communications are to be intercepted are used or will be used in connection with the commission of such offense or are under lease to the suspect or commonly used by him. § 2518(3).
36
In its November 6 application, the Government sought authority to intercept the conversations of not only Giordano, who alone was expressly named in the initial application and order, but of nine other named persons who were alleged to be involved with Giordano in narcotics violations. Based on the attached affidavit, it was alleged that there was probable cause to believe that communications concerning the offense involved would be intercepted, particularly those between Giordano and the other named individuals, as well as those with others as yet unnamed, and that the telephone listed in the name of Giordano and whose monitoring was sought to be continued 'has been used, and is being used and will be used, in connection with the commission of the offenses described.' App. 62.
37
In the affidavit supporting the application, the United States set out the previous applications and orders, incorporated by reference and reasserted the 'facts, details and conclusions contained in (the) affidavits' supporting the prior wiretap application, and set down in detail the relevant communications overheard under the existing order, as well as the physical movements of Giordano observed as the result of an around-the-clock surveillance that had been conducted by the authorities. App. 65—81. The Government concluded '(a) fter analyzing the intercepted conversations to and from (Giordano's telephone) and the results of BNDD surveillance' that nine listed individuals, some identified only by aliases, were associated with Giordano as suppliers or buyers in illegal narcotics trafficking and that certain other persons were perhaps connected with the operation in an as yet undisclosed fashion. Id., at 79—80. It was also said that the full scope of Giordano's organization was not yet known. Id., at 80. Assertedly, Giordano was extremely guarded in his telephone conversations, 'any specific narcotics conversations he makes are from pay phones' and '(c)onventional surveillance would be completely ineffective except as an adjunct to electronic interception.' Id., at 81. The United States accordingly requested an extension of the interception order for no longer than a 15-day period.
38
It is apparent from the foregoing that the communications intercepted pursuant to the extension order were evidence derived from the communications invalidly intercepted pursuant to the initial order. In the first place, the application sought and the order granted authority to intercept the communications of various named individuals not mentioned in the initial order. It is plain from the affidavit submitted that information about most of these persons was obtained through the initial illegal interceptions. It is equally plain that the telephone monitoring and accompanying surveillance were coordinated operations, necessarily intertwined. As the Government asserted, the surveillance and conventional investigative techniques 'would be completely ineffective except as an adjunct to electronic interception.' That the extension order and the interceptions under it were not in fact the product of the earlier electronic surveillance is incredible.
39
Second, an extension order could validly be granted only upon an application complying with subsection (1) of § 2518. Subsection (1)(e) requires that the fact of prior applications and orders be revealed, and (1)(f) directs that the application set out either the results obtained under the prior order or an explanation for the absence of such results. Plainly the function of § 2518(1) (f) is to permit the court realistically to appraise the probability that relevant conversations will be overheard in the future. If during the initial period, no communications of the kind that had been anticipated had been overheard, the Act requires an adequate explanation for the failure before the necessary findings can be made as a predicate to an extension order. But here there were results, and they were set out in great detail. Had they been omitted no extension order at all could have been granted; but with them, there were sufficient facts to warrant the trial court's finding, in accordance with § 2518(3)(b), of probable cause to believe that wire communications concerning the offenses involved 'will be obtained through the interception,' App. 83, as well as the finding complying with § 2518(3)(d) that there was probable cause to believe that Giordano's telephone 'has been used, is being used, and will be used, in connection with the commission of the offenses described above and is commonly used by Nicholas Giordano . . .' and nine other named persons. Ibid.
40
It is urged in dissent that the information obtained from the illegal October 16 interception order may be ignored and that the remaining evidence submitted in the extension application was sufficient to support the extension order. But whether or not the application, without the facts obtained from monitoring Giordano's telephone, would independently support original wiretap authority, the Act itself forbids extensions of prior authorizations without consideration of the results meanwhile obtained. Obviously, those results were presented, considered, and relied on in this case. Moreover, as previously noted, the Government itself had stated that the wire interception was an indispensable factor in its investigation and that ordinary surveillance alone would have been insufficient. In our view, the results of the conversations overheard under the initial order were essential, both in fact and in law, to any extension of the intercept authority. Accordingly, communications intercepted under the extension order are derivative evidence and must be suppressed.19 The judgment of the Court of Appeals is affirmed.
41
Affirmed.
APPENDIX TO OPINION OF THE COURT
RELEVANT PROVISIONS OF TITLE
42
III, OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF 1968, 18 U.S.C. §§ 2510—2520
43
s 2511. Interception and disclosure of wire or oral communications prohibited.
44
(1) Except as otherwise specifically provided in this chapter any person who
45
(a) willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire or oral communication;
46
(b) willfully uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when—
47
(i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or
48
(ii) such device transmits communications by radio, or interferes with the transmission of such communication; or
49
(iii) such person knows, or has reason to know, that such device or any component thereof has been sent through the mail or transported in interstate or foreign commerce; or
50
(iv) such use or endeavor to use (A) Takes place on the premises of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or (B) obtains or is for the purpose of obtaining information relating to the operations of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or
51
(v) such person acts in the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States;
52
(c) willfully discloses, or endeavors to disclose, to any other person the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this subsection; or
53
(d) willfully uses, or endeavors to use, the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this subsection;
54
shall be fined not more than $10,000 or imprisoned not more than five years, or both.
55
(2) (a) (i) It shall not be unlawful under this chapter for an operator of a switchboard, or an officer, employee, or agent of any communication common carrier, whose facilities are used in the transmission of a wire communication, to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the carrier of such communication: Provided, That said communication common carriers shall not utilize service observing or random monitoring except for mechanical or service quality control checks.
56
(ii) It shall not be unlawful under this chapter for an officer, employee, or agent of any communication common carrier to provide information, facilities, or technical assistance to an investigative or law enforcement officer who, pursuant to this chapter, is authorized to intercept a wire or oral communication.
57
(b) It shall not be unlawful under this chapter for an officer, employee, or agent of the Federal Communications Commission, in the normal course of his employment and in discharge of the monitoring responsibilities exercised by the Commission in the enforcement of chapter 5 of title 47 of the United States Code, to intercept a wire communication, or oral communication transmitted by radio, or to disclose or use the information thereby obtained.
58
(c) It shall not be unawful under this chapter for a person acting under color of law to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.
59
(d) It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire or oral communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State or for the purpose of committing any other injurious act.
60
(3) Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1143; 47 U.S.C. 605) shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government. The contents of any wire or oral communication intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence in any trial hearing, or other proceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power.
61
s 2515. Prohibition of use as evidence of intercepted wire or oral communications.
62
Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter. s 2516. Authorization for interception of wire or oral communications.
63
(1) The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of—
64
(a) any offense punishable by death or by imprisonment for more than one year under sections 2274 through 2277 of title 42 of the United States Code (relating to the enforcement of the Atomic Energy Act of 1954), or under the following chapters of this title: chapter 37 (relating to espionage), chapter 105 (relating to sabotage), chapter 115 (relating to treason), or chapter 102 (relating to riots);
65
(b) a violation of section 186 or section 501(c) of title 29, United States Code (dealing with restrictions on payments and loans to labor organizations), or any offense which involves murder, kidnapping, robbery, or extortion, and which is punishable under this title;
66
(c) any offense which is punishable under the following sections of this title: section 201 (bribery of public officials and witnesses), section 224 (bribery in sporting contests), subsection (d), (e), (f), (g), (h), or (i) of section 844 (unlawful use of explosives), section 1084 (transmission of wagering information), section 1503 (influencing or injuring an officer, juror, or witness generally), section 1510 (obstruction of criminal investigations), section 1511 (obstruction of State or local law enforcement), section 1751 (Presidential assassinations, kidnapping, and assault), section 1951 (inference with commerce by threats or violence), section 1952 (interstate and foreign travel or transportation in aid of racketeering enterprises), section 1954 (offer, acceptance, or solicitation to influence operations of employee benefit plan), section 1955 (prohibition of business enterprises of gambling), section 659 (theft from interstate shipment), section 664 (embezzlement from pension and welfare funds), sections 2314 and 2315 (interstate transportation of stolen property), section 1963 (violations with respect to racketeer influenced and corrupt organizations) or section 351 (violations with respect to congressional assassination, kidnapping, and assault);
67
(d) any offense involving counterfeiting punishable under section 471, 472, or 473 of this title;
68
(e) any offense involving bankruptcy fraud or the manufacture, importation, receiving, concealment, buying, selling, or otherwise dealing in narcotic drugs, marihuana, or other dangerous drugs, punishable under any law of the United States;
69
(f) any offense including extortionate credit transactions under sections 892, 893, or 894 of this title; or
70
(g) any conspiracy to commit any of the foregoing offenses.
71
(2) The principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof, if such attorney is authorized by a statute of that State to make application to a State court judge of competent jurisdiction for an order authorizing or approving the interception of wire or oral communications, may apply to such judge for, and such judge may grant in conformity with section 2518 of this chapter and with the applicable State statute an order authorizing, or approving the interception of wire or oral communications by investigative or law enforcement officers having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of the commission of the offense of murder, kidnaping, gambling, robbery, bribery, extortion, or dealing in narcotic drugs, marihuana or other dangerous drugs, or other crime dangerous to life, limb, or property, and punishable by imprisonment for more than one year, designated in any applicable State statute authorizing such interception, or any conspiracy to commit any of the foregoing offenses.
72
s 2518. Procedure for interception of wire or oral communications.
73
(1) Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant's authority to make such application. Each application shall include the following information:
74
(a) the identity of the investigative or law enforcement officer making the application, and the officer authorizing the application;
75
(b) a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed, (ii) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted;
76
(c) a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous;
77
(d) a statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a particular description of facts establishing probable cause to believe that additional communications of the same type will occur thereafter;
78
(e) a full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any judge for authorization to intercept, or for approval of interceptions of, wire or oral communications involving any of the state persons, facilities or places specified in the application, and the action taken by the judge on each such application; and
79
(f) where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results.
80
(2) The judge may require the applicant to furnish additional testimony or documentary evidence in support of the application.
81
(3) Upon such application the judge may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire or oral communications within the territorial jurisdiction of the court in which the judge is sitting, if the judge determines on the basis of the facts submitted by the applicant that—
82
(a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter;
83
(b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception;
84
(c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous;
85
(d) there is probable cause for belief that the facilities from which, or the place where, the wire or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person.
86
(4) Each order authorizing or approving the interception of any wire or oral communication shall specify—
87
(a) the identity of the person, if known, whose communications are to be intercepted;
88
(b) the nature and location of the communications facilities as to which, or the place where, authority to intercept is granted;
89
(c) a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates;
90
(d) the identity of the agency authorized to intercept the communications, and of the person authorizing the application; and
91
(e) the period of time during which such interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained.
92
An order authorizing the interception of a wire or oral communication shall, upon request of the applicant, direct that a communication common carrier, landlord, custodian or other person shall furnish the applicant forthwith all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that such carrier, landlord, custodian, or person is according the person whose communications are to be intercepted. Any communication common carrier, landlord, custodian or other person furnishing such facilities or technical assistance shall be compensated therefor by the applicant at the prevailing rates.
93
(5) No order entered under this section may authorize or approve the interception of any wire or oral communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty days. Extensions of an order may be granted, but only upon application for an extension made in accordance with subsection (1) of this section and the court making the findings required by subsection (3) of this section. The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event for longer than thirty days. Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter, and must terminate upon attainment of the authorized objective, or in any event in thirty days.
94
(6) Whenever an order authorizing interception is entered pursuant to this chapter, the order may require reports to be made to the judge who issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception. Such reports shall be made at such intervals as the judge may require.
95
(7) Notwithstanding any other provision of this chapter, any investigative or law enforcement officer, specially designated by the Attorney General or by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State, who reasonably determines that—
96
(a) an emergency situation exists with respect to conspiratorial activities threatening the national security interest or to conspiratorial activities characteristic of organized crime that requires a wire or oral communication to be intercepted before an order authorizing such interception can with due diligence be obtained, and
97
(d) there are grounds upon which an order could be entered under this chapter to authorize such interception,
98
may intercept such wire or oral communication if an application for an order approving the interception is made in accordance with this section within forty-eight hours after the interception has occurred, or begins to occur. In the absence of an order, such interception shall immediately terminate when the communication sought is obtained or when the application for the order is denied, whichever is earlier. In the event such application for approval is denied, or in any other case where the interception is terminated without an order having been issued, the contents of any wire or oral communication intercepted shall be treated as having been obtained in violation of this chapter, and an inventory shall be served as provided for in subsection (d) of this section on the person named in the application.
99
(8) (a) The contents of any wire or oral communication intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device. The recording of the contents of any wire or oral communication under this subsection shall be done in such a way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions. Custody of the recordings shall be wherever the judge orders. They shall not be destroyed except upon an order of the issuing or denying judge and in any event shall be kept for ten years. Duplicate recordings may be made for use or disclosure pursuant to the provisions of subsections (1) and (2) of section 2517 of this chapter for investigations. The presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire or oral communication or evidence derived therefrom under subsection (3) of section 2517.
100
(b) Applications made and orders granted under this chapter shall be sealed by the judge. Custody of the applications and orders shall be wherever the judge directs. Such applications and orders shall be disclosed only upon a showing of good cause before a judge of competent jurisdiction and shall not be destroyed except on order of the issuing or denying judge, and in any event shall be kept for ten years.
101
(c) Any violation of the provisions of this subsection may be punished as contempt of the issuing or denying judge.
102
(d) Within a reasonable time but not later than ninety days after the filing of an application for an order of approval under section 2518(7)(b) which is denied or the termination of the period of an order or extensions thereof, the issuing or denying judge shall cause to be served, on the persons named in the order or the application, and such other parties to intercepted communications as the judge may determine in his discretion that is in the interest of justice, an inventory which shall include notice of—
103
(1) the fact of the entry of the order or the application;
104
(2) the date of the entry and the period of authorized, approved or disapproved interception, or the denial of the application; and
105
(3) The fact that during the period wire or oral communications were or were not intercepted.
106
The judge, upon the filing of a motion, may in his discretion make available to such person or his counsel for inspection such portions of the intercepted communications, applications and orders as the judge determines to be in the interest of justice. On an ex parte showing of good cause to a judge of competent jurisdiction the serving of the inventory required by this subsection maybe postponed.
107
(9) The contents of any intercepted wire or oral communication or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in a Federal or State court unless each party, not less than ten days before the trial, hearing, or proceeding, has been furnished with a copy of the court order, and accompanying application, under which the interception was authorized or approved. This ten-day period may be waived by the judge if he finds that it was not possible to furnish the party with the above information ten days before the trial, hearing, or proceeding and that the party will not be prejudiced by the delay in receiving such information.
108
(10) (a) Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom on the grounds that—
109
(i) the communication was unlawfully intercepted;
110
(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or
111
(iii) the interception was not made in conformity with the order of authorization or approval.
112
Such motion shall be made before the trial, hearing, or proceeding unless there was no opportunity to make such motion or the person was not aware of the grounds of the motion. If the motion is granted, the contents of the intercepted wire or oral communication, or evidence derived therefrom, shall be treated as having been obtained in violation of this chapter. The judge, upon the filing of such motion by the aggrieved person, may in his discretion make available to the aggrieved person or his counsel for inspection such portions of the intercepted communication or evidence derived therefrom as the judge determines to be in the interests of justice.
113
(b) In addition to any other right to appeal, the United States shall have the right to appeal from an order granting a motion to suppress made under paragraph (a) of this subsection, or the denial of an application for an order of approval, if the United States attorney shall certify to the judge or other official granting such motion or denying such application that the appeal is not taken for purposes of delay. Such appeal shall be taken within thirty days after the date the order was entered and shall be diligently prosecuted.
114
s 2520. Recovery of civil damages authorized.
115
Any person whose wire or oral communication is intercepted, disclosed, or used in violation of this chapter shall (1) have a civil case of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use such communications, and (2) be ntitled to recover from any such person—
116
(a) actual damages but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher;
117
(b) punitive damages; and
118
(c) a reasonable attorney's fee and other litigation costs reasonably incurred.
119
A good faith reliance on a court order or legislative authorization shall constitute a complete defense to any civil or criminal action brought under this chapter or under any other law.
120
Mr. Justice POWELL, with whom THE CHIEF JUSTICE, Mr. Justice BLACKMUN, and Mr. Justice REHNQUIST join, concurring in part and dissenting in part.
121
I agree with the majority that the authorization by the Executive Assistant to the Attorney General of the application for the October 16 interception order contravened 18 U.S.C. § 2516(1) and that the statutory remedy is suppression of all evidence derived from interceptions made under that order. I therefore join Parts I, II, and III of the opinion of the Court. For the reasons stated below, however, I dissent from the Court's conclusion, stated in Part IV of its opinion, that evidence obtained under the two 'pen register'1 extension orders and under the November 6 extension of the interception order must also be suppressed.
122
These are the pertinent facts. On October 8, 1970, the Chief Judge of the United States District Court for the District of Maryland authorized the use of a pen register device to monitor and record for a 14-day period all numbers dialed from a telephone listed to respondent Giordano. There is no dispute that the pen register order was based on probable cause and was therefore lawful under the Fourth Amendment. On October 16, 1970, the District Court issued an order authorizing the interception of wire communications to and from Giordano's telephone for a period not to exceed 21 years. There is likewise no dispute that the wiretap order was based on probable cause. The defect in the application for this order was not the strength of the Government's showing on the merits of its request but the authorization of the application by the Executive Assistant to the Attorney General rather than by one of the officials specifically designated in 18 U.S.C. § 2516(1). As a result of this procedural irregularity both the contents of communications intercepted under the October 16 wiretap order and any 'evidence derived therefrom' must be suppressed. 18 U.S.C. §§ 2515 and 2518(10)(a).
123
The authorization for use of the pen register device was extended by orders dated October 22 and November 6, 1970. On the latter date the District Court also extended the intercept authority for a maximum additional period of 15 days. All three extension orders were based in part, but only in part, on evidence obtained under the invalid wiretap order of October 16. The wiretap extension order, unlike the original intercept order, was not marred by the defect of improper authorization.
124
The Government contends that, putting aside all evidence derived from the invalid original wiretap order, the independent and untainted evidence submitted to the District Court constituted probable cause for issuance of both pen register extension orders and the wiretap extension order, and in the latter case also satisfied the additional requirements imposed by 18 U.S.C. § 2518(3).2 Preoccupied with the larger issues in this case, the District Court summarily dismissed this contention insofar as it related to the pen register extension orders:
125
'The subsequent extension orders are not supported by sufficient showings of probable cause, however, for the reason that information was used to obtain those extension orders from a Title III wiretap which, for reasons appearing later in this opinion, was defective. The 'fruit of the poisonous tree' doctrine requires the suppression of all pen register information obtained under the subsequent orders. Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939); 18 U.S.C. § 2518(10)(a).' 340 F.Supp. 1033, 1041 (D.C.Md.1972).
126
The Court of Appeals did not mention the point. 469 F.2d 522 (CA4 1972).
127
With respect to the wiretap extension, neither the District Court nor the Court of Appeals addressed the Government's contention that communications intercepted under the extension were not derivatively tainted by the improper authorization defect in the original wiretap order, and neither court made any finding on this contention. The District Court simply found the wiretap extension order invalid on a different ground applicable both to the extension and to the original order. Specifically, the court concluded that the original wiretap order was unlawful because the application for it misidentified the approving officer and therefore failed to comply strictly with the provisions of 18 U.S.C. § 2518(1)(a) and (4)(d). The misidentification problem occurred in the application for the original wiretap order and in the application for the wiretap extension. The District Court held the extension order invalid on that basis alone and ordered the evidence obtained pursuant thereto suppressed for that reason.3 The Court of Appeals affirmed on a different ground entirely. It held the original order invalid because the application for it had been approved by the Executive Assistant to the Attorney General rather than by one of the officials designated in 18 U.S.C. § 2516(1). The defect of improper authorization, unlike the misidentification problem, arose only in connection with the original wiretap order. Perhaps through simple oversight, the Court of Appeals failed to consider the fate of the evidence obtained under the extension. Thus neither of the lower courts ruled on the derivative evidence question.
128
Today we affirm the suppression of evidence obtained under the original wiretap order for the same reason adopted by the Court of Appeals—the defect of improper authorization. As noted above, this defect did not occur in the application for the wiretap extension order. Today we also hold that misidentification of the approving authority does not render inadmissible evidence obtained pursuant to a resulting interception order. United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380. This decision removes the sole basis advanced by the District Court for suppressing the telephone conversations intercepted under the wiretap extension order and requires us to consider whether that evidence should be suppressed by reason of the improper authorization of the application for the original order. In doing so it is important to note that we are the first court to consider this aspect of the case.
129
The majority holds that the invalidity of the original wiretap order requires suppression of all evidence obtained under the three extension orders. In my view the application to this case of well-established principles, principles developed by the courts to effectuate constitutional guarantees and adopted by Congress to effectuate the statutory guarantees of Title III, demonsrates that the majority's conclusion is error. As will appear, the same analysis governs all three extension orders, but it may clarify my position to deal with the two pen register extension orders in Part I, below, and to reserve discussion of the November 6 extension of the wiretap for Part II.
130
* The installation of a pen register device to monitor and record the numbers dialed from a particular telephone line is not governed by Title III. This was the conclusion of the District Court in the instant case and of the courts in United States v. King, 335 F.Supp. 523, 548—549 (SD Cal. 1971), and in United States v. Vega, 52 F.R.D. 503, 507 (EDNY 1971). This conclusion rests on the fact that the device does not hear sound and therefore does not accomplish any 'interception' of wire communications as that term is defined by 18 U.S.C. § 2510(4)—'the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device' (emphasis added). Any doubt of the correctness of this interpretation is allayed by reference to the legislative history of Title III. The Report of the Senate Committee on the Judiciary in discussing the scope of the statute explicitly states '(t)he use of a 'pen register,' for example, would be permissible.' S.Rep.No. 1097, 90th Cong., 2d Sess., 90 (1968).
131
Because a pen register device is not subject to the provisions of Title III, the permissibility of its use by law enforcement authorities depends entirely on compliance with the constitutional requirements of the Fourth Amendment.4 In this case the Government secured a court order, the equivalent for this purpose of a search warrant, for each of the two extensions of its authorization to use a pen register. The District Court seemed to assume that because these extension orders were based in part on tainted evidence, information obtained pursuant thereto must necessarily be suppressed under the 'fruit of the poisonous tree' doctrine. 340 F.Supp., at 1041. That is not the law.
132
The District Court relied on Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939). In that decision the Court held that a statutory prohibition of unlawfully obtained evidence encompassed derivative evidence as well. But the Court also reaffirmed that the connection between unlawful activity and evidence offered at trial may become 'so attenuated as to dissipate the taint,' id., at 341, 60 S.Ct., at 268, and that facts improperly obtained may nevertheless be proved if knowledge of them is based on an independent source. Ibid. In its constitutional aspect, the principle is illustrated by Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). It is, in essence, that the derivative taint of illegal activity does not extend to the ends of the earth but only until it is dissipated by an intervening event. Of course, the presence of an independent source would always suffice.
133
The independent-source rule has as much vitality in the context of a search warrant as in any other. Thus, for example, unlawfully discovered facts may serve as the basis for a valid search warrant if knowledge of them is obtained from an independent and lawful source. See, e.g., Anderson v. United States, 344 F.2d 792 (CA10 1965). The obvious and well-established corollary is that the inclusion in an affidavit of indisputably tainted allegations does not necessarily render the resulting warrant invalid. The ultimate inquiry on a motion to suppress evidence seized pursuant to a warrant is not whether the underlying affidavit contained allegations based on illegally obtained evidence, but whether, putting aside all tainted allegations, the independent and lawful information stated in the affidavit suffices to show probable cause. James v. United States, 135 U.S.App.D.C. 314, 315, 418 F.2d 1150, 1151 (1969); United States v. Sterling, 369 F.2d 799, 802 (CA3 1966); United States v. Tarrant, 460 F.2d 701, 703—704 (CA5 1972); United States v. Koonce, 485 F.2d 374, 379 (CA8 1973); Howell v. Cupp, 427 F.2d 36, 38 (CA9 1970); Chin Kay v. United States, 311 F.2d 317, 321 (CA9 1962).5 Judge Weinfeld aptly stated the point in United States v. Epstein, 240 F.Supp. 80 (SDNY 1965):
134
'There is authority, and none to the contrary, that when a warrant issues upon an affidavit containing both proper and improper grounds, and the proper grounds—considered alone—are more than sufficient to support a finding of probable cause, inclusion of the improper grounds does not vitiate the entire affidavit and invalidate the warrant.' Id., at 82.
135
I know of no precedent holding to the contrary.6
136
The application of this principle to the pen register extension orders is clear beyond doubt. The original pen register order was based on a showing of probable cause made prior to, and therefore undeniably independent of, the invalid wiretap. The affidavit supporting the first extension of the pen register order incorporated the allegations contained in the affidavit submitted for the original order and provided the additional untainted information that Giordano had sold heroin to a narcotics agent on October 17, 1970. The affidavit for the second extension of the pen register order is not included in the record, but there is no reason to doubt that it made a similar incorporation by reference of the earlier, untainted allegations. I would hold the evidence obtained under the first pen register extension order admissible and remand the case for determination of whether evidence obtained under the second extension should be admitted as well.
137
The basis for the majority's conclusion to the contrary is far from apparent. In the final footnote to its opinion, the Court states that the evidence obtained under the defective original wiretap order 'should be considered a critical element in extending the pen register authority.' The majority does not suggest, however, that the original pen reggister order was based on anything less than probable cause. Nor does it deny that the affidavit supporting the extension of the pen register authority fully incorporated the earlier untainted allegations. And, finally, the majority does not contradict the established principle that a warrant based on an affidavit containing tainted allegations may nevertheless be valid if the independent and lawful information stated in the affidavit shows probable cause. In light of these significant silences, the majority's bare assertion that the tainted evidence obtained under the original wiretap order was a 'critical element' in the extension of the pen register authority is, to me, an unexplained conclusion—not a rationale.
II
138
Unlike the pen register extensions, the wiretap extension order of November 6 is governed by Title III. The provisions of that statute prescribe an elaborate procedure for the lawful interception of wire communications. To the extent that the statutory requirements for issuance of an intercept order are unconstitutional in nature, the exclusionary rule adopted to effectuate the Fourth Amendment does not pertain to their violation. The statute, however, contains its own exclusionary rule, 18 U.S.C. § 2518(10)(a), and the scope of the suppression remedy is defined by 18 U.S.C. § 2515 to include derivative evidence:
139
'Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial . . ..'
140
The obvious and familiar model for the statutory ban on the use of derivative evidence was the constitutional doctrine of the 'fruit of the poisonous tree,' and the legislative history confirms that Congress intended the phrase 'no evidence derived therefrom' to incorporate that doctrine and render it applicable to certain statutory violations of nonconstitutional dimensions. The Senate Report makes the point explicitly:
141
'(Section 2515) largely reflects existing law. It applies to suppress evidence directly (Nardone v. United States, 302 U.S. 379 (58 S.Ct. 275, 82 L.Ed. 314) (1937)) or indirectly obtained in violation of the chapter. (Nardone v. United States, 308 U.S. 338 (60 S.Ct. 266, 84 L.Ed. 307) (1939.)) There is, however, no intention to change the attenuation rule. See Nardone v. United States, 127 F.2d 521 (2d (Cir.)), cert. denied, 316 U.S. 698, (62 S.Ct. 1296, 86 L.Ed. 1767) (1942); Wong Sun v. United States, 371 U.S. 471 (83 S.Ct. 407, 9 L.Ed.2d 441) (1963).' S.Rep.No. 1097, 90th Cong., 2d Sess., 96.
142
Thus, although the validity of a wiretap order depends on the satisfaction of certain statutory conditions in addition to the constitutional requirement of probable cause, the principle developed in Part I of this opinion is fully applicable to the November 6 wiretap extension order. The question is not whether the application for that order relied in part on communications intercepted under the invalid original order but whether, putting aside that tainted evidence, the independent and lawful information stated in the supporting affidavit suffices to show both probable cause and satisfaction of the various additional requirements of Title III.7 United States v. Iannelli, 339 F.Supp. 171 (WD Pa. 1972); United States v. Ceraso, 355 F.Supp. 126 (MD Pa. 1973).
143
The application for the wiretap extension order was supported by the affidavit of a group supervisor from the Bureau of Narcotics and Dangerous Drugs. The same officer had sworn to one of two affidavits submitted in support of the application for the original wiretap order. The other had been filed by a narcotics agent acting under his supervision and stated facts within their joint knowledge. In the affidavit for the extension order, the supervisor swore that he had reviewed both of the earlier affidavits, and he 'reassert(ed) the facts, details and conclusions contained in those affidavits.' App. 66. Those allegations not only established probable cause to believe that Giordano was engaged in the illegal sale any distribution of narcotics on a fairly substantial scale, 18 U.S.C. § 2518(3)(a), they also satisfied the additional statutory criteria for issuance of an intercept order. They showed, for example, that Giordano had made numerous telephone calls to numbers listd to well-known narcotics violators and hence that there was probable cause to believe that communications concerning the illegal drug traffic were taking place on Giordano's telephone line. See 18 U.S.C. §§ 2518(3)(b) and (d). The affidavits also established the inadequacy of alternative investigative means and demonstrated that without a wiretap of Giordano's telephone the narcotics agents would be unable to discover his source of supply or method of distribution. See 18 U.S.C. § 2518(3)(c). All this was shown on the basis of wholly untainted evidence incorporated and reaffirmed in the affidavit supporting the Government's request for the wiretap extension order.
144
The affidavit also provided additional untainted information to support the application for the extension order. It set forth, for example, the circumstances of Giordano's sale of $3,800 worth of heroin to an undercover agent on the day following issuance of the original wiretap order. Moreover, it recounted in great detail highly suspicious conduct observed by federal agents keeping Giordano under physical surveillance.8 Like the allegations incorporated by reference from the earlier affidavits, this additional untainted information was relevant both to the constitutional requirement of probable cause and to the various statutory criteria for issuance of an intercept order. 18 U.S.C. § 2518(3).
145
In light of the substantiality and detail of the untainted allegations offered in support of the application for the wiretap extension order, I find no basis for the majority's rather summary conclusion that the communications intercepted under that extension order were derivatively tainted by the improper authorization of the application for the original wiretap order. Because neither the District Court for the Court of Appeals has considered this question, I would remand the case with instructions that the issue be settled in accord with the principles set forth in this opinion.
1
This and other relevant provisions of the statute are contained in the Appendix to this opinion, post, p. 534.
2
Evidence derived from the unlawful interceptions conducted pursuant to the October 16 wiretap order was held to include the evidence obtained under the November 6 wiretap extension order and also the evidence secured under court orders of October 22 and November 6 extending investigative authority to use a 'pen register,' i.e., a device that records telephone numbers dialed from a particular phone, which had previously been used to monitor the numbers dialed from Giordano's phone pursuant to a court order of October 8. The applications presented to the District Court to extend wiretap and pen register authority each detailed at considerable length the contents of conversations intercepted pursuant to the October 16 order in support of the requests. We therefore agree with the Court of Appeals, for the reasons discussed in Part IV, infra, that evidence gathered under the wiretap and pen register extension orders is tainted by the use of unlawfully intercepted communications under the October 16 order to secure judicial approval for the extensions, and must be suppressed.
3
The Second Circuit has held that approval of wiretap applications by the Attorney General's Executive Assistant complies with the dictates of § 2516(1). In United States v. Pisacano, 459 F.2d 259 (1972), the court refused to permit withdrawal of guilty pleas on the basis of subsequent discovery that the Executive Assistant had authorized the first of three wiretap applications, declaring that it was 'not at all convinced that if this case had gone to trial and the court had refused to suppress evidence obtained by the wiretaps, we would have reversed,' and that 'the Justice Department's procedures were very likely consistent with the mandate of § 2516(1).' Id., at 264 and n. 5. Shortly thereafter a different panel of that Circuit affirmed judgments of convictions in a case raising the same issue, out of 'adherence to the law of the circuit' so recently decided and with the admonition that its decision should 'not . . . be construed as an approval of the procedure followed by the Attorney General and his staff.' United States v. Becker, 461 F.2d 230, 236 (1972). In every other circuit which has considered the issue, suppression of evidence derived from court-approved wire interceptions based on an application authorized by the Attorney General's Executive Assistant has been held to be required by Title III. United States v. Mantello, 156 U.S.App.D.C. 2, 478 F.2d 671 (1973); United States v. Roberts, 477 F.2d 57 (CA7 1973); United States v. King, 478 F.2d 494 (CA9 1973). See also United States v. Robinson, 468 F.2d 189 (CA5 1972), remanded for an evidentiary hearing to determine whether the applications were properly authorized under § 2516(1), 472 F.2d 973 (en banc 1973).
4
Because of our disposition of this case, we do not reach the grounds relied upon by the District Court. The issue resolved in the District Court, however, is the subject of the companion case, United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380.
5
In full, 28 U.S.C. § 509 provides:
§ 509. Functions of the Attorney General.
'All functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice and vested in the Attorney General except the functions—
'(1) vested by subchapter II of chapter 5 of title 5 in hearing examiners employed by the Department of Justice;
'(2) of the Federal Prison Industries, Inc.;
'(3) of the Board of Directors and officers of the Federal Prison Industries, Inc.; and
'(4) of the Board of Parole.'
6
Criminal sanctions were provided in 18 U.S.C. § 2511, and a civil damages remedy was created in § 2520. See Appendix to this opinion, post, p. 534.
7
In 1967, a draft statute prepared by Professor G. Robert Blakey of the University of Notre Dame Law School to regulate the interception of wire and oral communications was published in The President's Commission on Law Enforcement and Administration of Justice, Task Force Report: Organized Crime, Appendix C, at 106 113. In part, it would have added a provision to Title 18, United States Code, which empowered the 'Attorney General or any Assistant Attorney General of the Department of Justice specially designated by the Attorney General' to authorize an application to a federal judge for an order to intercept wire or oral communications. Id., at 108. Senator McClellan introduced a proposed 'Federal Wire Interception Act,' S. 675, on January 25, 1967, 113 Cong.Rec. 1491 containing, in § 5(a), the same designations of which federal prosecuting officials could authorize a wiretap application. Hearings on Controlling Crime Through More Effective Law Enforcement before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 90th Cong., 1st Sess., 76 (1967). Senator Hruska later introduced S. 2050 on June 29, 1967, 113 Cong.Rec. 18007, which would have provided for regulated use of electronic surveillance, as well as wiretapping, and which again made provision, in a new § 2516 to be added to Title 18, United States Code, for the same system of approval of applications for the interception of wire or oral communications as was present in the Blakey bill. Hearings, supra, at 1005. In the House of Representatives, the Blakey bill was introduced on October 3, 1967, in the form of H.R. 13275, 113 Cong.Rec. 27718. Ultimately, the same operative language was enacted in Title III.
8
In the hearings on the McClellan bill, S. 675, see n. 7, supra, the limitation on the application authorization power was frequently brought to the fore. Thus, Chief Judge Lumbard of the United States Court of Appeals for the Second Circuit, who had earlier been United States Attorney for the Southern District of New York, noted in testimony on March 8, 1967, that the 'application would require approval of the Attorney General or a designated assistant . . .,' and he urged, in support of his recommendation that it was unnecessary to limit the use of wiretapping to the investigation of a narrow group of serious crimes, the fact that there were other factors which would greatly limit the use of wiretapping, beginning with the observation that 'the proposed statute, section 5a, provides that only the Attorney General, or any Assistant Attorney General specifically designated by him, may authorize the necessary application to a Federal judge for approval to wiretap. Thus the application will be carefully screened.' Hearings on Controlling Crime Through More Effective Law Enforcement, supra, n. 7, at 171—172. A letter urging adoption of legislation to govern the area of wiretapping and electronic eavesdropping was sent to the subcommittee on March 7 by all living former United States Attorneys of the Southern District of New York, who recommended that interception be prohibited 'unless authorized by a Federal judge on application of the Attorney General, or any Assistant Attorney General of the Department of Justice specially designated by the Attorney General, when such authorized interception or recording may provide evidence of an offense against the laws of the United States.' Id., at 511—512. And Senator McClellan himself commented to a judge testifying before the subcommittee:
'This legislation, as you know, requires rather thorough court supervision through the application for a court order made by the Attorney General or officials designated in the bill. A court of course, would have to weigh the probable cause or the reasonable cause in support of such an application. I do not know how to tighten it up any more than we have in the bill. . . . Can you tell us how to tighten it up any more?' Id., at 894—895.
9
The Attorney General is appointed by the President, by and with the advice and consent of the Senate, 28 U.S.C. § 503, as are the nine Assistant Attorneys General provided for in 28 U.S.C. § 506. The position of Executive Assistant, on the other hand, is established by regulation, to assist the Attorney General, inter alia, in the review of 'matters submitted for the Attorney General's action' and to '(p)erform such other duties and functions as may be specially assigned from time to time by the Attorney General.' 28 CFR § 0.6. It would appear from the Government's brief that the Executive Assistant involved in this case served as Executive Assistant to at least four Attorneys General.
10
In debate on the Senate floor the day before Title III was adopted, Senator McClellan responded to an inquiry of Senator Lausche in the following matter:
'Mr. LAUSCHE. Does the bill as now written give absolute, unconditional power to stop searches or tapping, or to authorize tapping?
'Mr. McCLELLAN. No. We have to go first to the Attorney General in the case of the Federal Government, and to the chief law enforcement officers of a State . . ..
'Mr. LAUSCHE. There is, then, a prohibition against tapping unless the application is filed with the chief law enforcement official. He approves it and then the application is filed with the court, is that not correct?
'Mr. McCLELLAN. The chief law enforcement officer, like the Attorney General of the United States, must authorize the application . . .. A prosecuting attorney or a U.S. district attorney cannot, on his own motion, do it. He has to get the authority from the Attorney General of the United States first to submit the application to the court.' 114 Cong.Rec. 14469.
During the same debate, Senator Long read from a report of the Association of the Bar of the City of New York, Committee on Federal Legislation, Committee on Civil Rights, 'Proposed Legislation on Wiretapping and Eavesdropping after Berger v. New York and Katz v. United States,' which commented on the application provisions of Title III in the following manner:
'Who May Apply
'The Blakey Bill provides that applications for wiretapping or eavesdropping orders may be made by only a limited number of persons. At the Federal level these are the Attorney General of the United States or an Assistant Attorney General and at the State level they are the State Attorney General or the principal prosecuting attorney of a political subdivision (such as a county or city District Attorney).
'We agree that responsibility should be focused on those public officials who will be principally accountable to the courts and the public for their actions. Police and investigative agencies should not have the power to make such applications on their own. On the other hand, it seems anomalous to permit only very high Federal officials to apply, excluding such officials as United States Attorneys for entire States or Districts like the Southern District of New York while permitting county district attorneys with substantially less responsibility to make applications. . . .
'We also would seek to reduce the anomaly referred to above by providing that the Attorney General may delegate to United States Attorneys the power to initiate applications.' 114 Cong.Rec. 14473—14474.
11
The following comments concerning § 2516(2) are found in S.Rep.No.1097, 90th Cong., 2d Sess., 98 (1968):
'Paragraph (2) provides that the principal prosecuting attorney of any State or the principal prosecuting attorney of any political subdivision of a State may authorize an application to a State judge of competent jurisdiction . . . for an order authorizing the interception of wire or oral communications. The issue of delegation by that officer would be a question of State law. In most States, the principal prosecuting attorney of the State would be the attorney general. The important question, however, is not name but function. The intent of the proposed provision is to provide for the centralization of policy relating to statewide law enforcement in the area of the use of electronic surveillance in the chief prosecuting officer of the State. . . . Where no such office exists, policymaking would not be possible on a statewide basis; it would have to move down to the next level of government. In most States, the principal prosecuting attorney at next political level of a State, usually the county, would be the district attorney, State's attorney, or county solicitor. The intent . . . is to centralize areawide law enforcement policy in him. . . . Where there are both an attorney general and a district attorney, either could authorize applications, the attorney general anywhere in the State and the district attorney anywhere in his county. The proposed provision does not envision a further breakdown. Although city attorneys may have in some places limited criminal prosecuting jurisdiction, the proposed provision is not intended to include them.'
12
We also deem it clear that the authority must be exercised before the application is presented to a federal judge. The suggestion that it is acceptable practice under § 2516(1) for the Attorney General's Executive Assistant to approve wiretap applications in the Attorney General's absence if the Attorney General subsequently, after a court order has issued, ratifies the giving of approval in the particular instance, either directly or by personally approving the submission of a further application for an extension order, as in this case, is wide of the mark. As the Court of Appeals for the Fifth Circuit noted in the panel decision in United States v. Robinson, 468 F.2d, at 193, the Attorney General's 'authority from Congress was to initiate wiretap applications, not to seek to have those terminated he found should never have been requested in the first place.' It would ill serve the congressional policy of having the Attorney General or one of his Assistants screen the applications prior to their submission to court to have the screening process occur after the application is made and after investigative officials have already begun to intercept wire or oral communications under a court order predicated on the assumption that proper authorization to apply for intercept authority had been given.
13
No question is raised in this case concerning the manner of conducting the court-approved interceptions of Giordano's telephone and thus § 2518(10)(a) (iii) is inapplicable to the present situation.
14
The Court of Appeals also held that suppression was required under subdivision (ii) on the theory that the absence of any valid authorization of the wiretap application was the equivalent of failing to identify at all in the interception order the person who authorized the application, rendering the order 'insufficient on its face.' Manifestly, however, the order, on its face, clearly, though erroneously, identified Assistant Attorney General Wilson as the Justice Department officer authorizing the application, pursuant to special designation by the Attorney General. As it stood, the intercept order was facially sufficient under § 2516(1), and despite what was subsequently discovered, the Court of Appeals was in error in justifying suppression under § 2518(10)(a)(ii).
15
The Government suggested at oral argument that, in addition to constitutional violations, willful statutory violations might also fit within the terms of § 2518(10)(a)(i). Tr. of Oral Arg. 33.
16
The draft statute prepared by Professor Blakey provided this fourth ground warranting suppression in cases where there was no probable cause for believing the existence of the grounds on which the interception order was issued. Task Force Report: Organized Crime, supra, n. 7, at 111, § 3803(k)(1) (C). So did the McClellan bill, S. 675, which was introduced prior to Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). Hearings on Controlling Crime Through More Effective Law Enforcement, supra, n. 7, at 78, § 8(g)(3). But the bill proposed by Senator Hruska after Berger (S. 2050) omitted this ground in a provision the language of which is substantially identical to § 2518(10)(a) as finally enacted. Id., at 1008, § 2518(k)(1). An explanation for the omission is provided in an appendix comparing S. 675 with S. 2050, which was published by Senator Scott, a cosponsor of the latter bill, in an article in the Howard Law Journal, Wiretapping and Organized Crime, 14 HowL.J. 1 (1968), and which was reprinted in Senator Scott's remarks on the Senate floor concerning the Omnibus Crime Control and Safe Streets Act of 1968. 114 Cong.Rec. 13205—13211. It is there simply stated that 'Senator Hruska's man says that the probable cause test is implied in (1).' Id., at 13211.
17
In relevant part S.Rep.No.1097, supra, n. 11, at 96, 106, provides:
'Section 2515 of the new chapter imposes an evidentiary sanction to compel compliance with the other prohibitions of the chapter. . . . The provision must, of course, be read in light of section 2518(10)(a) discussed below, which defines the class entitled to make a motion to suppress. It largely reflects existing law. It applies to suppress evidence directly (Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314 (1937)) or indirectly obtained in violation of the chapter. (Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939).) There is, however, no intention to change the attenuation rule. . . . Nor generally to press the scope of the suppression role beyond present search and seizure law. . . . But it does apply across the board in both Federal and State proceeding(s). . . . And it is not limited to criminal proceedings. Such a suppression rule is necessary and proper to protect privacy. . . . The provision thus forms an integral part of the system of limitations designed to protect privacy. Along with the criminal and civil remedies, it should serve to guarantee that the standards of the new chapter will sharply curtail the unlawful interception of wire and oral communications.
'(Section 2518(10)(a)) must be read in connection with sections 2515 and 2517, discussed above, which it limits. It provides the remedy for the right created by section 2515. (Except for its inapplicability to grand jury proceedings and an absence of intent to grant jurisdiction to federal courts over Congress,) (o)therwise, the scope of the provision is intended to be comprehensive.'
18
We find without substance the Government's suggestion that since 18 U.S.C. § 2511(1)(c) makes criminal the 'willful' disclosure of the contents of an intercepted communication, 'knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this subsection,' and § 2515 ties the propriety of suppression of evidence to the impropriety of its 'disclosure,' to hold that statutory violations committee in the Justice Department's internal approval and submission procedures with respect to wiretap applications preclude disclosure in court would be to attribute to Congress an intent to impose substantial criminal penalties for 'every defect in processing applications.' Brief for United States 38. Apart from the fact that a majority of the Court in United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380, has concluded that not every defect will warrant suppression, it is evident that § 2511 does not impose criminal liability unless disclosure is 'willful' and unless the information was known to have been obtained in violation of § 2511(1). Clearly, the circumstances under which suppression of evidence would be required are not necessarily the same as those under which a criminal violation of Title III would be found.
19
We are also of the view that the evidence obtained from the extended authorizations of October 22 and November 6 for the installation and use of the pen register device on Giordano's telephone was inadmissible because derived from the invalid wire interception that began on October 16. See n. 2, supra. The application for the October 22 extension attached the logs of telephone conversations monitored under the October 16 order and asserted that these logs revealed the 'continued use of the telephone . . . for conversations regarding illegal trafficking in narcotics.' App. 55. In these circumstances, it appears to us that the illegally monitored conversations should be considered a critical element in extending the pen register authority. We have been furnished with nothing to indicate that the pen register extension of November 6 should be accorded any different treatment.
1
A pen register is a mechanical device attached to a given telephone line and usually installed at a central telephone facility. It records on a paper tape all numbers dialed from that line. It does not identify the telephone numbers from which incoming calls originated, nor does it reveal whether any call, either incoming or outgoing, was completed. Its use does not involve any monitoring of telephone conversations. The mechanical complexities of a pen register are explicated in the opinion of the District Court. 340 F.Supp. 1033, 1-38—1041 (Md.1972).
2
Under 18 U.S.C. § 2518(3), the court is required to make the following determinations:
'(a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter;
'(b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception;
'(c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous;
'(d) there is probable cause for belief that the facilities from which, or the place where, the wire or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person.'
3
Immediately after stating its conclusion that the misidentification problem required suppression, the District Court made its sole reference to the November 6 extension order:
'The application and order relating to the extension of the wiretap are defective for the same reasons as the original application and order.' 340 F.Supp., at 1060.
Plainly, this reference to the 'same reasons' concerns the failure to comply literally with §§ 2518(1)(a) and (4)(d) identification requirements and has nothing to do with any derivative-evidence rule.
4
The Government suggests that the use of a pen register may not constitute a search within the meaning of the Fourth Amendment. I need not address this question, for in my view the constitutional guarantee, assuming its applicability, was satisfied in this case.
5
All of the cases cited are directly on point. There are a few additional decisions that indirectly support the general proposition stated above. United States v. Cantor, 470 F.2d 890 (CA3 1972), involved a defendant's claim that the Government violated his Fourth Amendment rights by refusing to disclose to him certain evidence that had been used to establish probable cause for issuance of a warrant. The court rejected that claim on the ground that there was adequate independent justification to find probable cause. Id., at 893. The cases of United States v. Jones, 475 F.2d 723 (CA5 1973), and United States v. Upshaw, 448 F.2d 1218 (CA5 1971), stand for the proposition that the validity of a search warrant based in part on erroneous statements is determined by evaluating the sufficiency of the other allegations. Finally, United States v. Lucarz, 430 F.2d 1051 (CA9 1970), involved a search warrant based on an affidavit containing two paragraphs that invited the magistrate to find probable cause by drawing a negative inference from the defendant's exercise of his constitutional right to the assistance of counsel. The court held the validity of the warrant was to be determined on the basis of the other allegations in the affidavit.
6
In fact, there are only two cases lending even colorable support to a contrary view. Both are from the Sixth Circuit, and neither can be said to contradict the general proposition stated above. In United States v. Langley, 466 F.2d 27 (1972), the court considered the validity of a warrant issued on the basis of information obtained in a previous warrantless search. The court held the prior search valid in large part and affirmed the validity of the warrant for the second search despite the inclusion in the affidavit of allegations based on the unlawful aspects of the first search. Although the case therefore illustrates the principle stated above, the court added the following comment: 'It must be emphasized that where such tainted information comprises more than a very minor portion of that found in an affidavit supporting a warrant to search, the warrant must be held invalid.' Id., at 35 (emphasis in original). The other case is United States v. Nelson, 459 F.2d 884 (1972), where the affidavit for a search warrant relied on information derived from two prior warrantless searches. Although the court suggested several reasons for suppressing the evidence seized pursuant to the warrant, the principal basis seems to have been the finding that the untainted allegations did not constitute probable cause. Thus neither case contradicts the decisions of the District of Columbia, Third, Fifth, Eighth, and Ninth Circuits cited in the text.
7
The majority seems to believe that this principle, while fully applicable to original wiretap orders, is wholly inapplicable to extension orders. This, at least, is the most reasonable construction of the majority's discussion of §§ 2518(1)(e) and (f). Ante, at 532—533. Those provisions require that an application for an extension order include 'a full and complete statement of the facts concerning all previous applications' and 'a statement setting forth the results thus far obtained from the interception . . ..' According to the majority, the fact that law enforcement authorities complied with §§ 2518(1)(e) and (f) by including in the application for the extension order information regardig the earlier wiretap necessarily and automatically rendered the extension order invalid, regardless of whether the independent and untainted information in the application for the extension satisfied the requirements of the Fourth Amendment and § 2518(3).
With all respect, I find this a baffling interpretation of the statute. Certainly there is nothing in the language or history of §§ 2518(1)(e) and (f) to suggest that Congress intended these provisions to except all extension orders from the independent-source doctrine. Nor is there any suggestion in the language or history of § 2515, which is the statutory analogue to the constitutional doctrine of the fruit of the poisonous tree, that Congress intended to distinguish between original wiretap orders and extension orders in determining the extent of the suppression remedy. Finally, there is nothing in logic to indicate why Congress would have wanted to make such a distinction, and there is no basis in reason to suppose that Congress, if it had intended such a result, would have failed to leave any evidence of that intent.
8
The detailed information lawfully obtained through surveillance and undercover work was aptly summarized in 77 of the affidavit supporting the extension order:
'Giordano exhibits the characteristics of a high-level narcotics trafficker-extreme caution. When travelling, he continually uses various counter-surveillance techniques. In his transactions, he limits his contacts to a small number of trusted individuals.' App. 81.
| 01
|
416 U.S. 562
94 S.Ct. 1849
40 L.Ed.2d 380
UNITED STATES, Petitioner,v.Umberto Jose CHAVEZ et al.
No. 72—1319.
Argued Jan. 8, 1974.
Decided May 13, 1974.
Syllabus
Under Title III of the Omnibus Crime Control and Safe Streets Act of 1968 each application for a court order authorizing the interception of a wire or oral communication, 18 U.S.C. § 2518(1)(a), and each interception order, 18 U.S.C. § 2518(4)(d), must identify the officer authorizing the application, and the Attorney General, or an Assistant Attorney General specially designated by him, may authorize the application, 18 U.S.C. § 2516(1). The contents of intercepted communications, or evidence derived therefrom, may not be received in evidence at a trial if the disclosure of the information would be 'in violation of' Title III, 18 U.S.C. § 2515, and may be suppressed on the grounds, inter alia, that the communication was 'unlawfully intercepted,' 18 U.S.C. § 2518(10)(a)(i), or that the interception order was 'insufficient on its face,' 18 U.S.C. § 2518(10)(a)(ii). In this case the applications and orders to wiretap the telephones of respondents Chavez and Fernandez, two narcotics offense suspects, incorrectly identified an Assistant Attorney General as the official authorizing the applications, whereas with respect to Chavez it had been the Attorney General and with respect to Fernandez the Attorney General's Executive Assistant. After Chavez, Fernandez, and the other respondents were indicted, the District Court, on respondents' motions, held that the evidence secured through both wiretaps had to be suppressed for failure of the applications or orders to identify the individual who actually authorized the application, and further as to the Fernandez wiretap because neither the Attorney General nor a specially designated Assistant Attorney General authorized the application. The Court of Appeals affirmed in all respects. 478 F.2d 572. Held:
1. Because the application for the interception order on the Fernandez phone was authorized by the Attorney General's Executive Assistant, rather than by the Attorney General or any specially designated Assistant Attorney General, on whom alone § 2516(1) confers such power, evidence secured under that order was properly suppressed. United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341. Pp. 569—570.
2. Misidentifying the Assistant Attorney General as the official authorizing the Chavez wiretap, when the Attorney General himself actually gave the approval, was in no sense the omission of a requirement that must be satisfied if wiretapping or electronic surveillance is to be lawful under Title III, and hence does not require suppression of the wiretap evidence. United States v. Giordano, supra, distinguished. Pp. 570—580.
(a) Where it is established that responsibility for approval of the application is fixed in the Attorney General, compliance with the screening requirements of Title III is assured, and there is no justification for suppression. Pp. 571—572.
(b) The interception order was not 'insufficient on its face' within the meaning of § 2518(10)(a)(ii), since the order clearly identified 'on its face' the Assistant Attorney General as the person authorizing the application, he being a person who under § 2516(1) could properly give such approval if specially designated to do so as the order recited, notwithstanding this was subsequently shown to be incorrect. Pp. 573—574.
(c) The misidentification of the officer authorizing the wiretap application did not affect the fulfillment of any of the reviewing or approval functions required by Congress, and, by itself, does not render the interception conducted under the order 'unlawful' within the meaning of § 2518(10)(a)(i) or the disclosure of the content of the interceptions, or derivative evidence, otherwise 'in violation of' Title III within the meaning of § 2515, there being no legislative history concerning § 2518(1)(a) and (4)(d) to suggest that they were meant, by themselves, to occupy a central, or even functional, role in guarding against unwarranted use of wiretapping or electronic surveillance. Pp. 574—580.
478 F.2d 512, affirmed in part, reversed in part, and remanded.
Sol. Gen. Robert H. Bork, for petitioner.
James F. Hewitt, San Francisco, Cal., for respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
This case, like United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341, concerns the validity of procedures followed by the Justice Department in obtaining judicial approval to intercept wire communications under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 211—225, 18 U.S.C. §§ 2510—2520, and the propriety of suppressing evidence gathered from court-authorized wiretaps where the statutory application procedures have not been fully satisfied. As is more fully described in Giordano, Title III limits who, among federal officials, may approve submission of a wiretap application to the appropriate district court, to the Attorney General, or an Assistant Attorney General he specially designates, 18 U.S.C. § 2516(1), and delineates the information each application must contain, upon what findings an interception order may be granted, and what the order shall specify, 18 U.S.C. §§ 2518(1), (3), (4).1 Within this general framework, two statutory requirements are of particular relevance to this case. Section 2518(1)(a) provides that each application for a court order authorizing or approving the interception of a wire or oral communication shall include, among other information, 'the identity of the . . . officer authorizing the application.' Similarly, § 2518(4)(d) provides that the order of authorization or approval itself shall specify, in part, 'the identity of . . . the person authorizing the application.' The specific question for adjudication here, which it was unnecessary to resolve in Giordano, is whether, when the Attorney General has in fact authorized the application to be made, but the application and the court order incorrectly identify an Assistant Attorney General as the authorizing official, evidence obtained under the order must be suppressed. We hold that Title III does not mandate suppression under these circumstances.
2
* Respondents were all indicted for conspiracy to import and distribute heroin in violation of 21 U.S.C. §§ 173, 174 (1964 ed.). In addition, respondent Umberto Chavez was separately charged under 18 U.S.C. § 1952 with using and causing others to use a telephone between California and Mexico, and performing other acts, in order to facilitate unlawful narcotics activity, and respondent James Fernandez was charged under § 1952 with traveling between California and Mexico, and performing other acts, for the same purpose. Upon notification that the Government intended to introduce evidence obtained from wiretaps of Chavez' and Fernandez' phones at trial, respondents filed motions to suppress, challenging the legality of the Justice Department's application procedures leading to the issuance by the District Court of the two orders permitting the wire interceptions. Affidavits filed in opposition by the Attorney General and his Executive Assistant represented that the application submitted for the February 18, 1971, order authorizing interception of wire communications to and from the Chavez phone had been personally approved by the Attorney General, whereas the application for the February 25, 1971, order to intercept communications to and from the Fernandez phone had been approved by his Executive Assistant a a time when the Attorney General was unavailable, and pursuant to an understanding that the Executive Assistant, applying the Attorney General's standards as he understood them, could act for the Attorney General in such circumstances.
3
Each application to the court had recited, however, that the Attorney General, pursuant to 18 U.S.C. § 2516, had 'specially designated' the Assistant Attorney General for the Criminal Division, Will Wilson, 'to authorize (the applicant attorney) to make this application for an Order authorizing the interception of wire communications.' Moreover, appended to each application was a form letter, addressed to the attorney making the application and purportedly signed by Will Wilson, stating that the signer had reviewed the attorney's request for authorization to apply for a wiretap order pursuant to 18 U.S.C. § 2518 and had made the requisite probable-cause and other statutory determinations from the 'facts and circumstances detailed' in the request, and that 'you are hereby authorized under the power specially delegated to me in this proceeding by the Attorney General . . ., pursuant to the power conferred on him by Section 2516 . . . to make application' for a wire interception order. Correspondingly, the District Court's intercept order in each case declared that court approval was given 'pursuant to the application authorized by . . . Will Wilson, who has been specially designated in this proceeding by the Attorney General . . . John N. Mitchell, to exercise the powers conferred on the Attorney General' by § 2516.
4
The discrepancy between who had actually authorized the respective applications to be made, and the information transmitted to the District Court clearly indicating that Assistant Attorney General Wilson was the authorizing official, was explained as the result of a standard procedure followed within the Justice Department. While the Attorney General had apparently refrained from designating any Assistant Attorney General to exercise the authorization power under § 2516(1), form memoranda were routinely sent from his office, over his initials, to Assistant Attorney General Wilson, stating that 'with regard to your recommendation that authorization be given' to make application for a court order permitting wire interception, 'you are hereby specially designated' to exercise the power conferred on the Attorney General by § 2516 'for the purpose of authorizing' the applicant attorney to apply for a wiretap order. Evidently, this form was intended to reflect notice of approval by the Attorney General, though on its face it suggested that the decision whether to authorize the particular wiretap application would be made by Assistant Attorney General Wilson. In fact, as revealed by the affidavits of Wilson's then Deputy Assistants filed in opposition to respondents' suppression motions, 'Wilson did not examine the files or expressly authorize the applications' for either the February 18 or February 25 interception orders, and they signed his name 'in accordance with (his) authorization . . . and the standard procedures of the Criminal Division' to the respective letters of authorization to the applicant attorney, which were made exhibits to the applications. The signing of Wilson's name was regarded as a 'ministerial act' because of Wilson's authorization to his Deputies 'to sign his name to and dispatch such a letter of authorization in every instance in which the request had been favorably acted upon in the Office of the Attorney General.'
5
The District Court held that the evidence secured through both wiretaps had to be suppressed for failure of either of the individuals who actually authorized the applications to be 'identified to Chief Judge Carter, Congress or the public' in the application or orders, as mandated by § 2518(1)(a) and (4)(d), respectively. Moreover, evidence obtained under the February 25 wiretap order on the Fernandez phone was separately suppressed, because the Government admitted that 'neither the Attorney General nor a specially designated Assistant Attorney General ever authorized the application,' as § 2516(1) requires.
6
The Court of Appeals affirmed in all respects. 478 F.2d 512. With respect to the Chavez tap, the Court of Appeals assumed, as had the District Court, that the Attorney General had personally approved the request for authority to apply for the interception order, as his affidavit stated. Nonetheless, the misidentification of Assistant Attorney General Wilson as the authorizing official was deemed to be a 'misrepresentation' and an 'apparently deliberate deception of the courts by the highest law officers in the land.' id., at 515, 517, which required suppression of evidence gathered from the tap for failure to comply with 18 U.S.C. § 2518(1)(a) and (4)(d). Congress was held to have 'intended to eliminate any possibility that the authorization of wiretap applications would be institutional decisions,' and the Court of Appeals was fearful that if the misidentification which occurred in this case were approved, 'there would be nothing to prevent future Attorneys General from remaining silent if a particular wiretap proved embarrassing.' 478 F.2d, at 516.
7
We granted certiorari, 412 U.S. 905, 93 S.Ct. 2292, 36 L.Ed.2d 969, to resolve the conflict between the position taken by the Ninth Circuit in this case on the issue of suppression because of inaccurate identification of the officer authorizing the application and the position taken by every other circuit that has considered the question.2 We agree with those other courts of appeals that misidentifying the Assistant Attorney General as the official authorizing the wiretap application to be made does not require suppression of wiretap evidence when the Attorney General himself has actually given the approval; hence, we reverse that portion of the judgment suppressing the Chavez wiretap evidence and remand for further proceedings to permit the District Court to address other challenges to the Chavez wiretap evidence which respondents had made but the District Court did not find it necessary to consider.3 Because the application for the interception order on the Fernandez phone was authorized by the Attorney General's Executive Assistant, rather than by the Attorney General or any specially designated Assistant Attorney General, on whom alone 18 U.S.C. § 2516(1) confers such power, evidence secured under that order was properly suppressed for the reasons stated in the opinion filed today in United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341. Accordingly, that portion of the judgment suppressing the Fernandez wiretap evidence is affirmed.
II
8
The application and order for the Chavez wiretap did not correctly identify the individual authorizing the application, as 18 U.S.C. § 2518(1)(a) and (4) (d) require. Of this there is no doubt. But it does not follow that because of this deficiency in reporting, evidence obtained pursuant to the order may not be used at a trial of respondents. There is no claim of any constitutional infirmity arising from this defect, nor would there be any merit to such a claim, and we must look to the statutory scheme to determine if Congress has provided that suppression is required for this particular procedural error.
9
Section 2515 provides that the contents of any intercepted wire or oral communication, and any derivative evidence, may not be used at a criminal trial, or in certain other proceedings, 'if the disclosure of that information would be in violation of this chapter.' Aggrieved persons may move, in a timely manner under § 2518(10)(a), to suppress the use of such evidence at trial on the grounds that
10
'(i) the communication was unlawfully intercepted;
11
'(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or
12
'(iii) the interception was not made in conformity with the order of authorization or approval.'
13
In United States v. Giordano, supra, we have concluded that Congress, in 18 U.S.C. § 2516(1), made preliminary approval of submission of wiretap applications a central safeguard in preventing abuse of this means of investigative surveillance, and intentionally restricted the category of federal officials who could give such approval to only the Attorney General himself or any Assistant Attorney General he might specially designate for that purpose. Hence, failure to secure approval of one of these specified individuals prior to making application for judicial authority to wiretap renders the court authority invalid and the interception of communications pursuant to that authority 'unlawful' within the meaning of 18 U.S.C. § 2518(10)(a)(i). Failure to correctly report the identity of the person authorizing the application, however, when in fact that Attorney General has given the required preliminary approval to submit the application, does not represent a similar failure to follow Title III's precautions against the unwarranted use of wiretapping or electronic surveillance and does not warrant the suppression of evidence gathered pursuant to a court order resting upon the application.
14
There is little question that § 2518(1)(a) and (4)(d) were intended to make clear who bore the responsibility for approval of the submission of a particular wiretap application. Thus, the Senate Report accompanying the favorable recommendation of Title III states that § 2518(1)(a) 'requires the identity of the person who makes, and the person who authorized the application (,) to be set out. This fixes responsibility.' S.Rep.No.1097, 90th Cong., 2d Sess., 101 (1968), U.S.Code Cong. & Admin.News, p. 2189. And § 2518(4)(d) 'requires that the order note the agency authorized to make the interception and the person who authorized the application so that responsibility will be fixed.' Id., at 103, U.S.Code Cong. & Admin.News 1968, p. 2192. Where it is established that responsibility for approval of the application is fixed in the Attorney General, however, compliance with the screening requirements of Title III is assured, and there is no justification for suppression.
15
Respondents suggest that the misidentification of Assistant Attorney General Wilson as the authorizing official was calculated to mislead the District Judge in considering the wire interception applications, and certainly had the effect of misleading him, since the interception order also misidentified the authorizing official in reliance on the statements made in the application. We do not perceive any purpose to be served by deliberate misrepresentation by the Government in these circumstances. To the contrary, we think it cannot be seriously contended that had the Attorney General been identified as the person authorizing the application, rather than his subordinate, Assistant Attorney General Wilson, the District Judge would have had any greater hesitation in issuing the interception order. The same could not be said of course, if, as in Giordano, the correct information had revealed that none of the individuals in whom Congress reposed the responsibility for authorizing interception applications had satisfied this preliminary step. The District Court undoubtedly thought that Wilson had approved the Chavez and Fernandez wiretap applications, and we do not condone the Justice Department's failure to comply in full with the reporting procedures Congress has established to assure that its more substantive safeguards are followed.4 But we cannot say that misidentification was in any sense the omission of a requirement that must be satisfied if wiretapping or electronic surveillance is to be lawful under Title III.
16
Neither the District Court nor the Court of Appeals made clear which of the grounds set forth in § 2518(10)(a) was relied upon to suppress the Chavez wiretap evidence. Respondents rely on each of the first two grounds, i.e., that the communications were 'unlawfully intercepted' and that the Chavez interception order is 'insufficient on its face.' Support for the latter claim is drawn from the District Court decision in United States v. Focarile, 340 F.Supp. 1033, 1057—1060 (Md.), aff'd on other grounds sub nom. United States v. Giordano, 469 F.2d 522 (C.A.4 1972), aff'd, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341, which concluded that an order incorrectly identifying who authorized the application is equivalent to an order failing to identify anyone at all as the authorizing official. We find neither of these contentions persuasive.
17
Here, the interception order clearly identified 'on its face' Assistant Attorney General Wilson as the person who authorized the application to be made. Under § 2516(1), he properly could give such approval had he been specially designated to do so by the Attorney General, as the order recited. That this has subsequently been shown to be incorrect does not detract from the facial sufficiency of the order.5 Moreover, even if we were to look behind the order despite the clear 'on its face' language of § 2518(10)(a)(ii), it appears that the Attorney General authorized the application, as he also had the power to do under § 2516(1). In no realistic sense, therefore, can it be said that the order failed to identify an authorizing official who possessed statutory power to approve the making of the application.
18
The claim that communications to and from the Chavez phone were 'unlawfully intercepted' is more plausible, but does not persuade us, given the purposes to be served by the identification requirements and their place in the statutory scheme of regulation. Though we rejected, in Giordano, the Government's claim that Congress intended 'unlawfully intercepted' communications to mean only those intercepted in violation of constitutional requirements, we did not go so far as to suggest that every failure to comply fully with any requirement provided in Title III would render the interception of wire or oral communications 'unlawful.' To establish such a rule would be at odds with the statute itself. Under § 2515, suppression is not mandated for every violation of Title III, but only if 'disclosure' of the contents of intercepted communications, or derivative evidence, would be in violation of Title III. Moreover, as we suggested in Giordano, it is apparent from the scheme of the section that paragraph (i) was not intended to reach every failure to follow statutory procedures, else paragraphs (ii) and (iii) would be drained of meaning. Giordano holds that paragraph (i) does include any 'failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.' Supra, at 527, 94 S.Ct., at 1832.
19
In the present case, the misidentification of the officer authorizing the wiretap application did not affect the fulfillment of any of the reviewing or approval functions required by Congress and is not within the reach of paragraphs (ii) and (iii). Requiring identification of the authorizing official in the application facilitates the court's ability to conclude that the application has been properly approved under § 2516; requiring identification in the court's order also serves to 'fix responsibility' for the source of preliminary approval. This information contained in the application and order further aids the judge in making reports required under 18 U.S.C. § 2519.6 That section requires the judge who issues or denies an interception order to report his action and certain information about the application, including the 'identity of . . . the person authorizing the application,' within 30 days, to the Administrative Office of the United States Courts, § 2519(1)(f). An annual report of the authorizing officials designated in § 2516 must also be filed with that body, and is to contain the same information with respect to each application made as is required of the issuing or denying judge, § 2519(2)(a). Finally, a summary of the information filed by the judges acting on applications and the prosecutors approving their submission is to be filed with Congress in April of each year by the Administrative Office, § 2519(3). The purpose of these reports is 'to form the basis for a public evaluation' of the operation of Title III and to 'assure the community that the system of court-order(ed) electronic surveillance . . . is properly administered . . ..' S.Rep.No.1097, 90th Cong., 2d Sess., 107, U.S.Code Cong. & Admin.News 1968, p. 2196. While adherence to the identification reporting requirements of § 2518(1)(a) and (4)(d) thus can simplify the assurance that those whom Title III makes responsible for determining when and how wiretapping and electronic surveillance should be conducted have fulfilled their roles in each case, it does not establish a substantive role to be played in the regulatory system.
20
Nor is there any legislative history concerning these sections, as there is, for example, concerning § 2516(1), see United States v. Giordano, supra, at 516 et seq., 94 S.Ct., at 1827 et seq., to suggest that they were meant, by themselves, to occupy a central, or even functional, role in guarding against unwarranted use of wiretapping or electronic surveillance. Though legislation to regulate the interception of wire and oral communications had been considered by Congress earlier, the proposed statute drafted for the President's Commission on Law Enforcement and Administration of Justice appears to have been the first published proposal to contain a requirement that the application for interception authority should specify 'who authorized the application.' Task Force Report: Organized Crime, App. C, p. 109, § 3803(a)(1) (1967). That proposal bill, which was substantially followed in Title III, also provided for reports like those now required by 18 U.S.C. § 2519, including information on 'the identity of . . . who authorized the application.' Id., at 111, § 3804(a)(6) and (b)(1). It did not, however, require the order to contain this information. Id., at 110, § 3803(e). S. 675, a bill introduced by Senator McClellan on January 25, 1967, as the 'Federal Wire Interception Act,' 113 Cong.Rec. 1491, did not contain any of these identification requirements. Hearings on Controlling Crime Through More Effective Law Enforcement before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 90th Cong., 1st Sess., 77—78, §§ 8(a), (d), 9(a) (1967). S. 2050, however, a proposal by Senator Hruska to regulate both wiretapping and electronic surveillance, did. Section 2518(a)(1) required an interception application to include 'the identity of the person who authorized the application,' and § 2519(a)(6) and (b)(1) provided that judges and authorizing prosecutors report 'the identity of . . . who authorized the application,' but did not require that the order contain this information, § 2518(e). Hearings, supra, at 1006 1008. The requirement that this information be contained in the order, as well as in the application and required reports first appeared in § 2518(e)(4) of H.R. 13482, 90th Cong., 2d Sess. (1967). Though the House never reported out of committee any wiretapping bill, it was retained in S. 917, a combination of S. 675 and S. 2050, whose provisions ultimately were enacted as Title III. Despite the appearance and modification of the identification requirements during the legislative process, however, no real debate surrounded their adoption, and only the statements in S.Rep.No.1097, supra, that they were designed to fix responsibility, give any indication of their purpose in the overall scheme of Title III. No role more significant than a reporting function designed to establish on paper that one of the major procedural protections of Title III had been properly accomplished is apparent.
21
When it is clearly established, therefore, that authorization of submission of a wiretap or electronic surveillance application has been given by the Attorney General himself, but the application, and, as a result, the interception order, incorrectly state that approval has instead been given by a specially designated Assistant Attorney General, the misidentification, by itself, will not render interceptions conducted under the order 'unlawful' within the meaning of § 2518(10)(a)(i) or the disclosure of the contents of intercepted communications, or derivative evidence, otherwise 'in violation of' Title III within the meaning of § 2515. Hence, the suppression of the Chavez wiretap evidence on the basis of the misidentification of Assistant Attorney General Wilson as the authorizing official was in error. Though we deem this result to be the correct one under the suppression provisions of Title III, we also deem it appropriate to suggest that strict adherence by the Government to the provisions of Title III would nonetheless be more in keeping with the responsibilities Congress has imposed upon it when authority to engage in wiretapping or electronic surveillance is sought.
22
The judgment of the Court of Appeals is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
23
It is so ordered.
24
Judgment of Court of Appeals affirmed in part, reversed in part and case remanded.
1
The relevant statutory provisions are set forth in the Appendix to United States v. Giordano, 416 U.S., at 534, 94 S.Ct., at 1835.
2
In other instances where the Attorney General had personally authorized the application, but the application and order erroneously recited approval by Assistant Attorney General Wilson, suppression of wiretap evidence has been denied on the ground of substantial compliance with Title III requirements. United States v. James, 161 U.S.App.D.C. 88, 98, 494 F.2d 1007, 1017 (1974) ('immaterial variance'); United States v. Pisacano, 459 F.2d 259, 264 n. 5 (CA2 1972) ('discrepancy did not meaningfully subvert the congressional scheme'); United States v. Becker, 461 F.2d 230, 235 (CA2 1972) ('harmless error'); United States v. Ceraso, 467 F.2d 647, 652 (CA3 1972) ('subsequent identification of the authorizing officer is satisfactory'); United States v. Bobo, 477 F.2d 974, 985 (CA4 1973) ('sufficient compliance'); United States v. Cox, 462 F.2d 1293, 1300 (CA8 1972) ('it is irrelevant that the application and order recited the authorizing officer as Mr. Wilson rather than Mr. Mitchell'). See also United States v. Roberts, 477 F.2d 57, 59 (CA7 1973), holding the authorization improper because given by the Executive Assistant, not the Attorney General, but suggesting that with respect to the misidentification of Assistant Attorney General Wilson 'we would not be inclined to elevate form over substance to find a violation of 18 U.S.C. § 2518(1)(a) and (4)(d) . . ..'
3
The record discloses that respondents also based their motions to suppress the Chavez wiretap evidence on the failure of the Government's affidavits in support of the wiretap application to demonstrate a need for wiretapping as opposed to less intrusive means of investigation, 18 U.S.C. § 2518(1)(c), to particularly describe the communications sought to be intercepted, § 2518(1)(b) (iii), to allege facts sufficient to justify the uncertainty of the termination date for the interception, § 2518(1)(d), or to adequately show probable cause to support the order, § 2518(3); moreover, the sufficiency of the order's directive to minimize the interception of innocent conversations and compliance by the agents who conducted the wiretap with the order of minimization, § 2518(5), were also challenged. R. 159—197. None of these questions is before us now, as neither the District Court nor the Court of Appeals passed on any of them.
4
The Government advises that in the spring of 1972 it revised the form memoranda by which the Attorney General had approved applications for wiretapping or electronic surveillance authority, and the form language in the letters sent to the applying attorneys, which are appended to the applications filed in the district courts, to accurately reflect that approval was obtained from the Attorney General, rather than a specially designated Assistant, unless the latter happens to be the case. Brief for United States in United States v. Giordano 9.
5
Respondents' attempt to analogize the facial insufficiency of a search warrant supported by an affidavit submitted under a false name of the affiant, a deficiency which has been held by some courts to require suppression under Fed.Rule Crim.Proc. 41, King v. United States, 282 F.2d 398 (CA4 1960), or under the Fourth Amendment, United States ex rel. Pugh v. Pate, 401 F.2d 6 (CA7 1968), cert. denied, 394 U.S. 999, 89 S.Ct. 1590, 22 L.Ed.2d 777 (1969), to the asserted facial insufficiency of a wire interception order which incorrectly identifies who authorized the application for the order, must fail. Without passing on the soundness of these cases, it must be recalled that the misidentification of the officer authorizing a wiretap application is irrelevant to the issue of probable cause, which is supported by the separate affidavits of investigative officials. See 18 U.S.C. § 2518(1) and (3). Moreover, no basis is provided in Title III for challenging the validity of the interception order depending on whether the application was approved by the Attorney General rather than a specially designated Assistant.
6
Section 2519 provides in full:
'§ 2519. Reports concerning intercepted wire or oral communications.
'(1) Within thirty days after the expiration of an order (or each extension thereof) entered under section 2518, or the denial of an
order approving an interception, the issuing or denying judge shall report to the Administrative Office of the United States Courts—
'(a) the fact that an order or extension was applied for;
'(b) the kind of order or extension applied for;
'(c) the fact that the order or extension was granted as applied for, was modified, or was denied;
'(d) the period of interceptions authorized by the order, and the number and duration of any extensions of the order;
'(e) the offense specified in the order or application, or extension of an order;
'(f) the identity of the applying investigative or law enforcement officer and agency making the application and the person authorizing the application; and
'(g) the nature of the facilities from which or the place where communications were to be intercepted.
'(2) In January of each year the Attorney General, an Assistant Attorney General specially designated by the Attorney General, or the principal prosecuting attorney of a State, or the principal prosecuting attorney for any political subdivision of a State, shall report to the Administrative Office of the United States Courts—
'(a) the information required by paragraphs (a) through (g) of subsection (1) of this section with respect to each application for an order or extension made during the preceding calendar year;
'(b) a general description of the interceptions made under such order or extension, including (i) the approximate nature and frequency of incriminating communications intercepted, (ii) the approximate nature and frequency of other communications intercepted, (iii) the approximate number of persons whose communications were intercepted, and (iv) the approximate nature, amount, and cost of the manpower and other resources used in the interceptions;
'(c) the number of arrests resulting from interceptions made under such order or extension, and the offenses for which arrests were made;
'(d) the number of trials resulting from such interceptions;
'(e) the number of motions to suppress made with respect to such interceptions, and the number granted or denied;
'(f) the number of convictions resulting from such interceptions
and the offenses for which the convictions were obtained and a general assessment of the importance of the interceptions; and
'(g) the information required by paragraphs (b) through (f) of this subsection with respect to orders or extensions obtained in a preceding calendar year.
'(3) In April of each year the Director of the Administrative Office of the United States Courts shall transmit to the Congress a full and complete report concerning the number of applications for orders authorizing or approving the interception of wire or oral communications and the number of orders and extensions granted or denied during the preceding calendar year. Such reports shall include a summary and analysis of the data required to be filed with the Administrative Office by subsections (1) and (2) of this section. The Director of the Administrative Office of the United States Courts is authorized to issue binding regulations dealing with the content and form of the reports required to be filed by subsections (1) and (2) of this section.'
| 01
|
416 U.S. 783
94 S.Ct. 2028
40 L.Ed.2d 540
John R. DILLARD and Willie Williams, etc., Appellants,v.INDUSTRIAL COMMISSION OF VIRGINIA et al.
No. 73—5412.
Argued March 26, 1974.
Decided May 15, 1974.
Syllabus
In this action (brought initially by appellant Dillard and in which appellant Williams was allowed to intervene) Williams claimed that the Due Process Clause of the Fourteenth Amendment prevented Virginia from permitting suspension of workmen's compensation benefits as a result of a claimed change in condition without notice to the claimant and a prior adversary hearing. The District Court rejected the constitutional claim on the merits. Held: If, as indicated in the briefs and oral arguments in this Court, state law permits a claimant whose benefits have been suspended to have them reinstated by the state trial courts, which act in a purely ministerial capacity, pending a full administrative hearing before the State Industrial Commission on the merits of his claim, it was probably unnecessary to address the federal constitutional question. Accordingly, the case must be remanded to the District Court for reconsideration. Pp. 784—798.
347 F.Supp. 71, vacated and remanded.
John M. Levy, Richmond, Va., for appellants.
Stuart H. Dunn, Richmond, Va., for Industrial Commission of Va. and others.
J. Robert Brame, III, Richmond, Va., for The Aetna Casualty & Surety Co.
Mr. Justice POWELL delivered the opinion of the Court.
1
Appellants seek to establish that, under the Due Process Clause of the Fourteenth Amendment, Virginia may not permit the suspension of workmen's compensation benefits without a prior adversary hearing. A three-judge United States District Court, over one dissent, rejected appellants' constitutional arguments. 347 F.Supp. 71 (E.D.Va.1972). We noted probable jurisdiction. 414 U.S. 1110, 94 S.Ct. 838, 38 L.Ed.2d 736 (1973). Although the parties have focused primarily on the due process issue, the briefs and oral arguments have indicated that under state law a claimant whose workmen's compensation benefits have been suspended may have them reinstated by a state trial court pending a full administrative hearing on the merits of his claim. If this is an accurate reading of state law, it is in all probability unnecessary to address any questions of federal constitutional law in this case. Accordingly, the case must be remanded to the District Court for reconsideration.
2
* This litigation has centered on the role of the Industrial Commission of Virginia (Commission) in overseeing relationships between workmen's compensation claimants and employers or the employers' insurance companies. Although the Virginia system for workmen's compensation is controlled in all significant respects by an extensive statutory scheme referred to as the Act, Va.Code Ann. § 65.1—1 et seq. (1973 and Supp. 1973),1 it operates in a largely voluntary manner through memoranda of agreement between disabled workmen and employers or insurance companies. Compensation is paid out of private funds, in some cases through self-insurance by employers but for the most part through coverage by private insurance companies. All agreements between employees and employers or insurance companies must be approved by the Commission, which may extend its imprimatur 'only when the Commission, or any member thereof, is clearly of the opinion that the best interests of the employee or his dependents will be served thereby . . ..' § 65.1 93.
3
In most instances the parties agree voluntarily on entitlement to benefits.2 When this does not occur, the Commission will grant a hearing to resolve the disagreement, § 65.1—94, and will make an award if found to be due. § 65.1—96. The Commission's awards are subject to review by appeal to the Virginia Supreme Court and, if unchallenged, are conclusive until changed by the Commission. § 65.1—98.3 The Commission has no enforcement power per se. Rather, the Act provides:
4
'Any party in interest may file in the circuit or corporation court of the county or city in which the injury occurred, or if it be in the city of Richmond then in the circuit or law and equity court of such city, a certified copy of a memorandum of agreement approved by the Commission, or of an order or decision of the Commission, or of an award of the Commission unappealed from, or of an award of the Commission affirmed upon appeal, whereupon the court, or the judge thereof in vacation, shall render judgment in accordance therewith and notify the parties. Such judgment shall have the same effect, and all proceedings in relation thereto shall thereafter be the same, as though such judgment had been rendered in a suit duly heard and determined by the court. . . .' § 65.1—100.
5
The state courts have construed their enforcement duty under § 65.1—100 as purely ministerial. They do not inquire into whether a claimant's condition continues to justify compensation. Rather, they simply enforce agreements and awards that have been approved and not formally rescinded by the Commission.4 Thus, a workmen's compensation claimant in Virginia has at his disposal a ready mechanism in the state trial courts to enforce any facially valid award or agreement. Since judicial enforcement is a ministerial act, this relief appears to be available with a minimum of delay or procedural difficulty.
6
Termination of benefits due to a change in a claimant's condition, like the commencement of benefits in the first instance, is a product of voluntary agreement in most cases. But when a dispute arises over a claimant's condition and his continued entitlement to benefits, the only avenue open to an employer for extinguishing a claimant's enforcement rights under § 65.1—100 of the Act appears in § 65.1—99. See Bristol Door & Lumber Co. v. Hinkle, 157 Va. 474, 161 S.E. 902 (1932). This section provides, in relevant part:
7
'Upon its own motion or upon the application of any party in interest, on the ground of a change in condition, the Industrial Commission may review any award and on such review may make an award ending, diminishing or increasing the compensation previously awarded . . .. No such review shall affect such award as regards any moneys paid . . ..' Va.Code Ann. § 65.1—99 (1973).5
8
Although it may be indisputable that a claimant is no longer entitled to benefits due to a change in his condition, if the claimant refuses to terminate voluntarily an award or agreement, an employer or insurer appears to have no defense against a state court enforcement action until there is a formal determination by the Commission under this section. E.g., Manchester Bd. & Paper Co. v. Parker, 201 Va. 328, 111 S.E.2d 453 (1959).6 If an employer or insurance company meets the requirements established by the Commission for invoking its review under this section, the Commission in due course will conduct a hearing, with notice and the right to participate extended to all parties.7 At such a hearing, the employer or insurer bears the burden of proving a change in a claimant's condition that justifies rescission of an award or agreement. E.g., Virginia Oak Flooring Co. v. Chrisley, 195 Va. 850, 80 S.E.2d 537 (1954); J. A. Foust Coal Co. v. Messer, 195 Va. 762, 80 S.E.2d 533 (1954).
9
The last sentence of the above quotation from § 65.1—99 prevents an employer or insurance company from recovering benefits erroneously paid prior to the Commission's formal termination of an award or agreement. See Gray v. Underwood Bros., 164 Va. 344, 182 S.E. 547 (1965). Accordingly, an employer or insurer with cause to believe that a claimant is no longer entitled to benefits has an obvious incentive unilaterally to cease payment at the time it seeks a § 65.1—99 hearing before the Commission. If the Commission ultimately holds in its favor, the employer or insurer will not be required to pay any further benefits, and it will have protected itself against unmerited payments in the period prior to the Commission's full hearing. If the Commission rules against it, it will be required to reinstate benefits retroactively to the date of the application for a hearing, but at least it will have avoided paying benefits for which there was no true legal obligation.
10
In order to police this tendency of employers and insurers to terminate first and litigate later, the Commission promulgated its Rule 13. See Manchester Bd. & Paper Co. v. Parker, supra.8 Rule 13 sets forth certain requirements that an employer or insurer must meet, with precision, see ibid., before it can obtain the § 65.1—99 hearing which is a prerequisite to formal termination of an award or agreement on the ground of change in condition.9 For example, the Rule requires employers and insurers to continue benefits up to a defined date. And since April 1, 1972, the Rule has imposed the following requirements on such applications:
11
'All applications by an employer or insurer shall be under oath and shall not be deemed filed and benefits shall not be suspended until the supporting evidence which constitutes a legal basis for changing the existing award shall have been reviewed by the Commission, or such of its employees as may be designated for that purpose, and a determination made that probable cause exists to believe that a change in condition has occurred.'
12
Thus, under Rule 13, as amended, an employer or insurer must pay benefits up to a certain date, must make application under oath, and must submit 'supporting evidence which constitutes a legal basis for changing the existing award . . ..' If these requirements are met and if the Commission finds that 'probable cause exists to believe that a change in condition has occurred . . .,' the employer or insurer will be accorded a hearing that may lead to rescission of the prior award or agreement. If the Rule 13 requirements are not met, the request for a hearing will be denied, and the award or agreement at issue will remain subject to enforcement in the state courts.
II
13
Appellant Dillard was the original named plaintiff in this class action under 42 U.S.C. § 1983. He contended that the Due Process Clause of the Fourteenth Amendment prevented Virginia from permitting the suspension of workmen's compensation benefits without notice to the claimant and an adversary hearing at the time the Commission makes a probable cause determination pursuant to Rule 13. A three-judge United States District Court, over one dissent, rejected this argument on the merits. 347 F.Supp. 71 (E.D.Va.1972). Dillard appealed, but then settled his claim, and we remanded the case for a determination of mootness. 409 U.S. 238, 93 S.Ct. 566, 34 L.Ed.2d 444 (1972). In an unreported order, the District Court subsequently permitted the intervention of appellant Williams and reinstated its published opinion. Williams then appealed, bringing up the due process arguments initially espoused by Dillard.
14
Appellant Williams was injured in the course of employment in April 1972. In May 1972, the Commission approved an agreement between Williams and his employer's insurance company, one of the appellees herein, for the payment of weekly compensation benefits. In October 1972, the insurance company applied under Rule 13 to the Commission for a hearing to determine whether Williams' disability had ended. Simultaneously, the insurer discontinued payments. Within a few days the Commission made an ex parte determination that probable cause existed to believe that a change in Williams' condition had occurred. At this point, Williams made no effort to petition a state court under § 65.1—100 of the Act to reinstate benefits pending the Commission's full hearing. In December 1972, the Commission conducted an adversary hearing, concluded that the insurance company had not met its burden of proof, and reinstated benefits. On April 17, 1973, the insurance company again petitioned the Commission, claiming a change in Williams' condition. The Commission once more found probable cause on an ex parte basis, and the company for the second time terminated benefits. Williams again did not resort to the state trial courts for an enforcement order. Approximately two months later, the District Court permitted Williams to intervene in this lawsuit and, as noted, reinstated its published opinion. Williams then brought this appeal.10
15
Williams' constitutional attack on the Virginia system for suspending workmen's compensation benefits is premised on the assumption that Rule 13, as amended, permits an employer or insurer to shield itself from a state court enforcement suit under § 65.1—100 of the Act in the interim between a probable cause determination by the Commission and the Commission's ultimate full hearing under § 65.1—99 of the Act. Williams in essence reads the phrase of Rule 13 providing that 'benefits shall not be suspended' prior to meeting the requirements of the Rule as meaning that benefits may successfully be suspended once those requirements have been met. If this reading of Rule 13 is incorrect, the complexion of this case changes dramatically, because it is then within the power of a claimant to reinstate benefits simply by petitioning a state trial court to perform a ministerial duty. It may well be that this perfunctory enforcement power is so readily available that a claimant could render any suspension of benefits de minimis. If so, those in appellants' class may not be able to establish a constitutionally significant injury under any reading of the Due Process Clause of the Fourteenth Amendment.
16
Every indication in the record and in the state authorities is that Williams had at his disposal a state court enforcement right that he simply failed to utilize. See n. 4, supra. As the Commission declared in its motion to dismiss before the District Court:
17
'Virginia's statutory framework does not authorize the termination of benefits as alleged by plaintiff, it permits only the initiation of a procedure by which benefits may ultimately be terminated. Should plaintiff be dissatisfied with the temporary cessation of benefits pending an administrative hearing, he is entitled by the provisions of § 65.1—100 to reduce his award to judgment in an appropriate court of record and compel the resumption of benefits. It should be noted that in such a case the ocurt has no discretion and must enter judgment against the employer or his insurer.' (Emphasis in original; citations omitted.) One of the appellees makes the same point in its brief,11 and Williams' counsel conceded at oral argument that, if read literally, § 65.1—100 of the Act permits no other result.12 Counsel attempted to overcome this concession by arguing that the Virginia courts have not interpreted Rule 13 recently and that they might today hold that the Rule overrides the language of § 65.1—100.13 This argument plainly has no merit, since the Commission is without power to promulgate a rule that would repeal a section of the Act.14 Moreover, it is obvious that the Commission had no such purpose. Rule 13 was designed to protect employees, see Manchester Bd. & Paper Co. v. Parker, 201 Va. 328, 111 S.E.2d 453 (1959), not to deprive them of rights existing under the Act. It establishes barriers that an employer or insurer must surmount before it may obtain the § 65.1—99 hearing that is a prerequisite to extinguishing a claimant's right to enforce an award or agreement in state court. The Rule is designed to serve as a screening device for eliminating obviously unmeritorious applications for hearings filed by insurers and employers.15 It is not an authorization for an employer or insurer to suspend payments with assurance that a claimant may not have them reinstated under § 65.1—100 of the Act.
18
The District Court itself noted that Rule 13 probably does not permit an employer or insurer to escape § 65.1—100 of the Act.16 It reached appellants' federal constitutional claim only by assuming, arguendo, 'that the Rule is authority for the employer or insurer to terminate payments . . ..' 347 F.Supp., at 75. Based on what has been brought to our attention and our review of state law, such an assumption in all likelihood would be inaccurate.17 In any event, that court must resolve any doubts on the issue before reaching appellants' federal claim. If there is significant doubt about the status of state law, the court should consider abstention, as the state law question may well be dispositive. E.g., Lake Carriers' Ass'n v. MacMullan, 406 U.S. 498, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972). If, as appears to be the case, state law clearly provided Williams an adequate state court remedy he did not pursue, then the court will be presented with a wholly different issue from the one it decided. Assuming it is also established that the Commission's Rule 13 procedures are necessarily ex parte,18 then the only question is whether the interruption, if any, of benefits between the time of suspension and the time a claimant obtains reinstatement of benefits by petitioning the state courts is of any controlling significance. If the court determines that a claimant as a general rule may obtain reinstatement of benefits without undue delay following a finding of probable cause by the Commission under Rule 13, then the court should dismiss the complaint.
19
We indicate no view on the question decided by the District Court—whether the suspension of benefits without notice and an adversary hearing denies due process of law, where the funds at issue are private, not public, where the State requires a finding of probable cause and other procedural safeguards short of a prior adversary hearing, and where a full hearing follows suspension of benefits by a period on the average of one month. The judgment is vacated, and the case is remanded for reconsideration in accordance with this opinion.
20
It is so ordered.
21
Vacated and remanded.
22
Mr. Justice DOUGLAS, dissenting.
23
This case involves a class action brought on behalf of all persons who, as a result of sustaining employment-related injuries, are recipients of benefits under the Virginia Workmen's Compensation Act, Va.Code Ann. § 65.1—1 et seq. The action challenges the constitutionality under the Due Process Clause of the Fourteenth Amendment of that part of the Act allowing a termination of benefit payments by the employer or insurer as a result of an asserted change in condition prior to a full hearing on the alleged change before the Commission. The complaint prayed for an injunction to restrain enforcement of that part of the Act. A three-judge District Court was convened, 28 U.S.C. § 2281, and the challenged portions of the Act were found constitutional, one judge dissenting. 347 F.Supp. 71 (E.D.Va.1972).
24
The Act provides a system allowing the employer and the employee to escape personal injury litigation for on-the-job injuries; it provides for the payment of compensation under fixed rules. Once the Industrial Commission approves an award of benefits, the Commission or any party in interest may move for review of the award 'on the ground of a change in condition.' Va. Code Ann. § 65.1—99. According to the Commission's Rule 13, all such applications by an employer or insurer to decrease or terminate benefits "require that an ex parte inquiry be held by the Commission to determine whether probable cause exists for a change in the award before any benefits may be temporarily suspended pending a full hearing." 347 F.Supp., at 79.
25
Suspension of benefits awarded by the Commission is thus permitted upon an ex parte determination that 'probable cause' for termination exists. The parties here do not dispute that the full hearing conducted by the Commission before final termination, with notice and opportunity for all parties to be heard, satisfies the requirements of due process. At issue is the ex parte suspension of benefits of a Commission's award prior to that final hearing. The Court does not reach the constitutionality of the suspension, because a claimant, whose benefits have been so suspended, may bring suit in a state court to have them reinstated, pursuant to Va.Code Ann. § 65.1—100.
26
I disagree that the opportunity for a claimant to counteract a termination of benefits payable under an award of the Commission by instituting a state court action is an answer to the constitutional challenge to the termination.* The issue here is the necessity of a hearing before termination of benefits. Any state remedy which places upon the worker the burden of going to court to redress a termination which has already occurred is simply not in point. It places the burden of affirmative action upon that segment of society least able to bear it a time which could not be less opportune. As Judge Merhige said below in dissent: 'Judges need not blind themselves to what they know as men. I cannot help but believe that the average workingman in Virginia, who has sustained an injury resulting in a substantial reduction of his weekly income, suffers a grave and immediate loss. . . . The very thought that the ex parte proceeding permitted by Rule 13 may result in a cessation of milk delivery, or electric power, or fuel to a working man and his family, shocks my conscience.' 347 F.Supp., at 81. The opportunity for working-class men and women in that grave situation to enter state court and do battle with the corporate employers and insurers who have already terminated their benefits without a hearing is no meaningful solution to their problem.
27
Since I find the state remedy inapposite, I dissent from the remand to consider its impact.
1
The Act defines the relevant employment relationships, §§ 65.1—3 to 65.1—5, types of compensable disabilities, §§ 65.1—7 and 65.1—46, levels of compensations, §§ 65.1—54 to 65.1—57, 65.1—65 to 65.1—65.1, and 65.1—70 to 65.1—71, and the like. Participation in the Virginia system is mandatory for all employees and employers covered by the Act. § 65.1—23, as amended. The Act has been in force since 1918. Its history and general structure are described in the District Court's opinion. See 347 F.Supp. 71, 72 73 (ED Va.1972).
2
An amicus brief indicates that in the years 1967 to 1971 approximately 95% of all claims for workmen's compensation were resolved by voluntary agreement. Brief for American Insurance Association et al. 10.
3
The Virginia Supreme Court accords substantial weight to the Commission's findings of fact, e.g., LeWhite Constr. Co. v. Dunn, 211 Va. 279, 176 S.E.2d 809 (1970), and restricts its review primarily to questions of law. Cf. Brown v. Fox, 189 Va. 509, 54 S.E.2d 109 (1949).
4
See Richmond Cedar Works v. Harper, 129 Va. 481, 492—493, 106 S.E. 516, 520 (1921): 'Section 62 (the predecessor to § 65.1 100 of the Act) was clearly enacted for the purpose of providing a means not only of enforcing an award which had been affirmed on . . . appeal, but also all other final awards of the commission from which there had been no appeal, as well as all agreements between the parties approved by the commission. When this section is invoked, however, the rights of the claimants have already been established. The proceeding then resembles a motion under our statute for execution upon a forthcoming or delivery bond. . . . (A)ll of the rights of the levels of compensation, §§ 65.1—54 to 65.1—57, determined, the court is required to render judgment in accordance either with (a) the agreement of the parties, which has been approved by the commission, (b) an award of the commission which has not been appealed from, or (c) an award of the commission which has been previously affirmed upon appeal. At this stage of the proceeding, the court is vested with no discretion; the statute is mandatory, and the refusal to render such judgment as that section requires could be compelled by mandamus. . . . The order of the court under section 62 in rendering judgment so that execution may be had, is the exercise of a ministerial function, and the mere method provided by the legislature for enforcing the collection by legal process of the amount already legally ascertained to be due . . ..'
Accord, Parrigen v. Long, 145 Va. 637, 134 S.E. 562 (1926).
5
Although § 65.1—99 refers specifically to awards, it has been interpreted as applying also to voluntary agreements that have been approved by the Commission. See Manchester Bd. & Paper Co. v. Parker, 201 Va. 328, 111 S.E.2d 453 (1959).
6
In the Manchester case, a claimant and an insurance company entered into an agreement to pay benefits, which the Commission approved. The employee then returned to work, rendering himself technically ineligible for benefits. The insurance company suspended payments and commenced proceedings leading to a determination under what is now § 65.1—99 of the Act, but it failed to adhere precisely to the requirements of the Commission under that section. One year after the employee returned to work, the Commission refused to rescind the agreement, concluding that the insurance company had failed to comply with § 65.1—99 as implemented by the Commission. On appeal, the Virginia Supreme Court affirmed. It held that § 65.1—99 was the exclusive statutory means for rescinding an agreement approved by the Commission and that employers and insurance companies failed to follow that section at their own risk, without regard to the actual status of a claimant.
7
There is no dispute in the instant case that the full hearing the Commission ultimately conducts before it formally terminates an award or agreement under § 65.1—99 of the Act satisfies the requirements of the Due Process Clause of the Fourteenth Amendment. Appellants' attack has been directed only at suspensions of benefits prior to the Commission's final hearing.
8
'The reason for the rule is stated in the opinion of the Commission as follows:
"More than thirty years ago when it was found by the Commission that some employers were arbitrarily disregarding the effect of outstanding awards and terminating payments directed by such awards, (Rule 13) . . . was promulgated . . .. The Rule has since been continuously in force." 201 Va., at 331, 111 S.E.2d, at 456.
Rule 13 was promulgated pursuant to the general rulemaking authority vested in the Commission by the Act. Section 65.1—18 of the Act provides, in part: 'The Commission may make rules, not inconsistent with this Act, for carrying out the provisions of this Act.' The state courts have held that Rule 13 is a valid exercise of the Commission's rulemaking authority. See Manchester Bd. & Paper Co. v. Parker, supra.
9
Commission Rule 13 provides:
'Applications for Review on Ground of Change in Condition. Applications for review under § 65.1—99 of the Act must be in writing and state the ground relied upon for relief. Reviews of awards on the ground of a change in condition shall be determined as of the date of the filing of the application in the offices of the Commission, except as provided in paragraphs two and three hereof.
'All applications for hearing by an employer or issurer under § 65.1—99 shall show the date through which compensation benefits have been paid. No application shall be considered by the Commission until all compensation under the outstanding award has been paid to the date such application is filed with the Commission. Except, that in any case in which the employee has actually returned to work or has refused employment (§ 65.1—63), medical attention (§ 65.1—88), or medical examination (§ 65.1—91), compensation may be terminated as of the date the employee returned to work or refused employment, medical attention or medical examination, or as of a date fourteen days prior to the date the application is filed, whichever is later. In such cases the application will be considered and determined as of the date of return to work, or refusal, or as of a date fourteen days prior to the date the application is filed, whichever is later. All applications by an employer or insurer shall be under oath and shall not be deemed filed and benefits shall not be suspended until the supporting evidence which constitutes a legal basis for changing the existing award shall have been reviewed by the Commission, or such of its employees as may be designated for that purpose, and a determination made that probable cause exists to believe that a change in condition has occurred.
'All applications for hearing by an employee on the ground of further work incapacity shall be considered and determined as of the date incapacity for work actually begins, or as of a date fourteen days prior to the date the application is filed, whichever is later.'
10
State proceedings relating to Williams' entitlement to benefits continued after he was permitted to intervene in this case. In September 1973, following an adversary hearing, the Commission formally terminated Williams' right to benefits. Williams appealed the Commission's ruling to the Virginia Supreme Court. On that appeal, he apparently sought review only of the accuracy of the Commission's determination that he was no longer disabled. In an unreported order issued in December 1973, the Virginia Supreme Court affirmed the Commission's ruling. Williams then filed a petition for certiorari in this Court seeking review of the state court holding. That petition, which is pending, No. 73—6431, Williams v. Richmond Guano Co., does not raise the same constitutional arguments that Williams has advanced on this appeal. Indeed, although the same counsel represented Williams on certiorari and on the instant appeal, the petition makes no mention of this case. In light of our disposition of the instant case, we need not decide whether Williams might have addressed his present federal constitutional arguments to the Virginia Supreme Court on its review of the final order of the Commission.
11
See Brief of Appellee Aetna Casualty and Surety Co. 5:
'Applicants usually cease paying compensation at the time they file the application based on a change of condition, but the actual award is changed only by order of the Commission following a full hearing or agreement of the parties. Although the award speaks is terms of continuing 'during incapacity,' incapacity can be challenged only before the Commission. Therefore, the employee can enforce payments even after the Commission finds 'probable cause' to believe a change has occurred and schedules a hearing just as he can enforce an award against a recalcitrant employer who suspends payment without probable cause.'
12
Tr. of Oral Arg. 53.
13
Id., at 52, 53, 55.
14
See n. 8, supra.
15
The Commission states that the purpose of Rule 13 is to require employers and insurers 'to submit sufficient information to the Commission of the ultimate merit of the suspension that the possibility of fraudulent, frivolous or arbitrary suspensions is eliminated (sic) and the likelihood of suspension in non-fraudulent but otherwise non-meritorious cases is minimized.' Motion to Affirm 3. An Amicus brief indicates that in about one-third of all Rule 13 applications the Commission finds no probable cause and thus does not permit employers or insurers to have a § 65.1—99 hearing. Brief for American Insurance Association et al. 14.
16
The court declared:
'Nowhere in the Rule does it authorize or direct the employer or insurer to cease payments before a full hearing. It merely provides the Commission will not hear the petition of the employer or insurer asserting any change in condition if payments under the award have not been made up to the date the application is deemed filed, with an admonition that benefits shall not be suspended until the supporting evidence submitted with the petition has been reviewed and it is determined probable cause exists to believe a change has occurred, and if a finding of probable cause is made, the application will then be deemed filed. Here again, it does not authorize or direct suspension of payments, but merely provides the insurer or employer may not have a hearing on an alleged change of condition unless and until the provisions of the Rule are complied with.' 347 F.Supp., at 74—75 (emphasis in original).
17
There is also a question in the record whether a probable cause determination by the Commission under Rule 13 is necessarily ex parte and whether a claimant is in fact denied notice of such a
proceeding. The District Court noted this at the outset of its opinion:
'The determination of 'probable cause' is to be made from an examination of 'supporting evidence with constitutes a legal basis' for changing the existing award. Nowhere does the Rule say the determination may be made without notice to the employee and a chance to be heard. The mere fact that such an inference may exist a determination without notice to the employee and an opportunity to be heard—does not render the language objectionable on its face. . . . The (April 1, 1972) amendment to the Rule is new and the evidence does not indicate what the Commission will require in the way of supporting evidence to constitute a legal basis for establishing probable cause to believe a change in condition has occurred.' 347 F.Supp., at 75 (citation omitted).
Moreover, we were informed at oral argument that as a matter of practice insurance companies and the Commission regularly inform claimants that a probable cause determination is pending. Tr. of Oral Arg. 43—44. It was also asserted that the Commission would take into account submissions by a claimant when it makes a probable cause determination. Id., at 44. An amicus brief indicates that:
'An employee may, under the present Rule 13, file a written statement or submit evidence opposing the probable cause determination. However, in fact this rarely occurs because the employee normally does not have access to the employer's evidence and because the Commission acts rapidly without waiting to receive any submission from the employee. (However, if an employee does send in information even after probable cause is found, the Commission will evaluate the information. If the information indicates that payment should not be suspended, the Commission informs the carrier and the carrier then continues payments to the claimant).' Brief for American Insurance Association et al. 13—14.
If a claimant receives notice of a Rule 13 application and if the Commission will receive and evaluate his counter-affidavits or medical evidence, the constitutional challenge to the Virginia system would arise in a different light even if no recourse to the state courts were available under § 65.1—100 of the Act. As it did with regard
to the question of the impact of Rule 13 on a claimant's right to reinstate benefits by resort to the state trial courts, the District Court bypassed this question of state law. It 'assum(ed) that the Rule does not provide for notice and a hearing to the employee prior to termination of the award . . ..' 347 F.Supp., at 75. The court should have resolved its doubts on this issue before addressing appellants' federal constitutional argument.
18
See n. 17, supra.
*
In Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), wages earned could not be seized under garnishment by a creditor without prior notice and opportunity to be heard. By the same token, in the present case entitlement to an award made by the Commission should not be taken ex parte but only after prior notice and opportunity to be heard if procedural due process is to control as it must by reason of the Fourteenth Amendment.
| 34
|
416 U.S. 663
94 S.Ct. 2080
40 L.Ed.2d 452
Astol CALERO-TOLEDO, Superintendent of Police, et al., Appellants,v.PEARSON YACHT LEASING CO.
No. 73—157.
Argued Jan. 7, 1974.
Decided May 15, 1974.
Rehearing Denied June 17, 1974.
See 417 U.S. 977, 94 S.Ct. 3187.
Syllabus
A pleasure yacht, which appellee had leased to Puerto Rican residents, was seized, pursuant to Puerto Rican statutes providing for forfeiture of vessels used for unlawful purposes, without prior notice to appellee or the lessees and without a prior adversary hearing, after authorities had discovered marihuana aboard her. Appellee was neither involved in nor aware of a lessee's wrongful use of the yacht. Appellee then brought suit challenging the constitutionality of the statutory scheme. A three-judge District Court, relying principally on Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556, held that the statutes' failure to provide for preseizure notice and hearing rendered them unconstitutional and that, as applied to forfeit appellee's interest in the yacht, they unconstitutionally deprived an innocent party of property without just compensation. Held:
1. The statutes of Puerto Rico are 'State statute(s)' for purposes of the Three-Judge Court Act, and hence a three-judge court was properly convened under that Act and direct appeal to this Court was proper under 28 U.S.C. § 1253. Pp. 669—676.
2. This case presents and 'extraordinary' situation in which postponement of notice and hearing until after seizure did not deny due process, since (1) seizure under the statutes serves significant governmental purposes by permitting Puerto Rico to assert in rem jurisdiction over the property in forfeiture proceedings, thereby fostering the public interest in preventing continued illicit use of the property and in enforcing criminal sanctions; (2) preseizure notice and hearing might frustrate the interests served by the statutes, the property seized often being of the sort, as here, that could be removed from the jurisdiction, destroyed, or concealed, if advance notice were given; and (3), unlike the situation in Fuentes v. Shevin, supra, seizure is not initiated by self-interested private parties but by government officials. Pp. 676—680.
3. Statutory forfeiture schemes are not rendered unconstitutional because of their applicability to the property interests of innocents, and here the Puerto Rican statutes, which further punitive and deterrent purposes, were validly applied to appellee's yacht. Pp. 680—690.
363 F.Supp. 1337, reversed.
Lynn R. Coleman for appellants.
Gustavo A. Gelpi, San Juan, P.R., for appellee.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The question presented is whether the Constitution is violated by application to appellee, the lessor of a yacht, of Puerto Rican statutes providing for seizure and forfeiture of vessels used for unlawful purposes when (1) the yacht was seized without prior notice or hearing after allegedly being used by a lessee for an unlawful purpose, and (2) the appellee was neither involved in nor aware of the act of the lessee which resulted in the forfeiture.
2
In March 1971, appellee, Pearson Yacht Leasing Co., leased a pleasure yacht to two Puerto Rican residents. Puerto Rican authorities discovered marihuana on board the yacht in early May 1972, and charged one of the lessees with violation of the Controlled Substances Act of Puerto Rico, P.R.Laws Ann., Tit. 24, § 2101 et seq. (Supp.1973). On July 11, 1972, the Superintendent of Police seized the yacht pursuant to P.R.Laws Ann., Tit. 24, §§ 2512(a)(4), (b) (Supp.1973),1 and Tit. 34, § 1722 (1971),2 which provide that vessels used to transport, or to facilitate the transportation of, controlled substances, including marihuana, are subject to seizure and forfeiture to the Commonwealth of Puerto Rico. The vessel was seized without prior notice to appellee or either lessee and without a prior adversary hearing. The lessees, who had registered the yacht with the Ports Authority of the Commonwealth, were thereafter given notice within 10 days of the seizure, as required by § 1722(a).3 But when a challenge to the seizure was not made within 15 days after service of the notice, the yacht was forfeited for official use of the Government of Puerto Rico pursuant to § 1722(c).4 Appellee shortly thereafter first learned of the seizure and forfeiture when attempting to repossess the yacht from the lessees, because of their apparent failure to pay rent. It is conceded that appellee was 'in no way . . . involved in the criminal enterprise carried on by (the) lessee' and 'had no knowledge that its property was being used in connection with or in violation of (Puerto Rican Law).'
3
On November 6, 1972, appellee filed this suit, seeking a declaration that application of P.R.Laws Ann., Tit. 24, §§ 2512(a)(4), (b), and Tit. 34, § 1722, had (1) unconstitutionally denied it due process of law insofar as the statutes authorized appellants, the Superintendent of Police and the Chief of the Office of Transportation of the Commonwealth, to seize the yacht without notice or a prior adversary hearing, and (2) unconstitutionally deprived appellee of its property without just compensation.5 Injunctive relief was also sought.
4
A three-judge District Court,6 relying principally upon Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), held that the failure of the statutes to provide for preseizure notice and hearing rendered them constitutionally defective. 363 F.Supp. 1337, 1342—1343 (PR 1973). Viewing United States v. United States Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971), as having effectively overruled our prior decisions that the property owner's innocence has no constitutional significance for purposes of forfeiture, the District Court further declared that the Puerto Rican statutes, insofar as applied to forfeit appellee's interest in the yacht, unconstitutionally deprived it of property without just compensation. 363 F.Supp., at 1341—1342. Appellants were accordingly enjoined from enforcing the statutes 'insofar as they deny the owner or person in charge of property an opportunity for a hearing due to the lack of notice, before the seizure and forfeiture of its property and insofar as a penalty is imposed upon innocent parties.' Id., at 1343—1344. We noted probable jurisdiction. 414 U.S. 816, 94 S.Ct. 69, 38 L.Ed.2d 48 (1973). We reverse.
5
* Although the parties consented to the convening of the three-judge court and hence do not challenge our jurisdiction to decide this direct appeal, we nevertheless may not entertain the appeal under 28 U.S.C. § 12537 unless statutes of Puerto Rico are 'State statute(s)' for purposes of the Three-Judge Court Act, 28 U.S.C. § 2281.8 We therefore turn first to that question.
6
In Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368, 69 S.Ct. 606, 93 L.Ed. 741 (1949), this Court held that enactments of the Territory of Hawaii were not 'State statute(s)' for purposes of Judicial Code § 266, the predecessor to 28 U.S.C. § 2281, reasoning:
7
'While, of course, great respect is to be paid to the enactments of a territorial legislature by all courts as it is to the adjudications of territorial courts, the predominant reason for the enactment of Judicial Code § 266 does not exist ad respects territories. This reason was a congressional purpose to avoid unnecessary interference with the laws of a sovereign state. In our dual system of government, the position of the state as sovereign over matters not ruled by the Constitution requires a deference to state legislative action beyond that required for the laws of a territory. A territory is subject to congressional regulation.' 336 U.S., at 377—378, 69 S.Ct., at 611 (footnotes omitted) (emphasis added).
8
Similar reasoning—that the purpose of insulating a sovereign State's laws from interference by a single judge would not be furthered by broadly interpreting the word 'State'—led the Court of Appeals for the First Circuit some 55 years ago to hold § 266 inapplicable to the laws of the Territory of Puerto Rico. Benedicto v. West India & Panama Tel. Co., 256 F. 417 (1919).
9
Congress, however, created the Commonwealth of Puerto Rico after Benedicto was decided. Following the Spanish-American War, Puerto Rico was ceded to this country in the Treaty of Spain, 30 Stat. 1754 (1889). A brief interlude of military control was followed by congressional enactment of a series of Organic Acts for the government of the island. Initially these enactments established a local governmental structure with high officials appointed by the President. These Acts also retained veto power in the President and Congress over local legislation. By 1950, however, pressures for greater autonomy led to congressional enactment of Pub.L. 600, 64 Stat. 319, which offered the people of Puerto Rico a compact whereby they might establish a government under their own constitution. Puerto Rico accepted the compact, and on July 3, 1952, Congress approved, with minor amendments, a constitution adopted by the Puerto Rican populace, 66 Stat. 327; see note accompanying 48 U.S.C. § 731d. Pursuant to that constitution the Commonwealth now 'elects its Governor and legislature; appoints its judges, all cabinet officials, and lesser officials in the executive branch; sets its own educational policies; determines its own budget; and amends its own civil and criminal code.' Leibowitz, The applicability of Federal Law to the Commonwealth of Puerto Rico, 56 Geo.L.J. 219, 221 (1967); see 28 Dept. of State Bull. 584—589 (1953); Americana of Puerto Rico, Inc. v. Kaplus, 368 F.2d 431 (CA3 1966); Magruder, The Commonwealth Status of Puerto Rico, 15 U.Pitt.L.Rev. 1 (1953).
10
These significant changes in Puerto Rico's governmental structure formed the backdrop to Judge Magruder's observations in Mora v. Mejias, 206 F.2d 377 (CA1 1953):
11
'(I)t may be that the Commonwealth of Puerto Rico—'El Estado Libre Asociado de Puerto Rico' in the Spanish version organized as a body politic by the people of Puerto Rico under their own constitution, pursuant to the terms of the compact offered to them in Pub.L. 600, and by them accepted, is a State within the meaning of 28 U.S.C. § 2281. The preamble to this constitution refers to the Commonwealth. . . which 'in the exercise of our natural rights, we (the people of Puerto Rico) now create within our union with the United States of America.' Puerto Rico has thus not become a State in the federal Union like the 48 States, but it would seem to have become a State within a common and accepted meaning of the word. Cf. State of Texas v. White, 1868, 7 Wall. 700, 721, 74 U.S. 700, 19 L.Ed. 227. . . . It is a political entity created by the act and with the consent of the people of Puerto Rico and joined in union with the United States of America under the terms of the compact.
12
'A serious argument could therefore be made that the Commonwealth of Puerto Rico is a State within the intendment and policy of 28 U.S.C. § 2281. . . . If the constitution of the Commonwealth of Puerto Rico is really a 'constitution'—as the Congress says it is, 66 Stat. 327,—and not just another Organic Act approved and enacted by the Congress, then the question is whether the Commonwealth of Puerto Rico is to be deemed 'sovereign over matters not ruled by the Constitution' of the United States and thus a 'State' within the policy of 28 U.S.C. § 2281, which enactment, in prescribing a three-judge federal district court, expresses 'a deference to state legislative action beyond that required for the laws of a territory' (Stainback v. Mo Hock Ke Lok Po, 336 U.S., at 378, 69 S.Ct., at 611—612.) whose local affairs are subject to congressional regulation.' 206 F.2d, at 387—388 (footnote omitted).
13
Lower federal courts since 1953 have adopted this anaylsis and concluded that Puerto Rico is to be deemed 'sovereign over matters not ruled by the Constitution' and thus a State within the policy of the Three-Judge Court Act. See Mora v. Mejias, D.C., 115 F.Supp. 610 (PR 1953);9 Marin v. University of Puerto Rico, D.C., 346 F.Supp. 470, 481 (PR 1972); Suarez v. Administrator del Deporte Hipico de Puerto Rico, D.C., 354 F.Supp. 320 (PR 1972). And in Wackenhut Corp. v. Aponte, 386 U.S. 268, 87 S.Ct. 1017, 18 L.Ed.2d 37 (1967), we summarily affirmed the decision of a three-judge court for the District of Puerto Rico that had ordered abstention and said:
14
'(A)pplication of the doctrine of abstention is particularly appropriate in a case . . . involv(ing) the construction and validity of a statute of the Commonwealth of Puerto Rico. For a due regard for the status of that Commonwealth under its compact with the Congress of the United States dictates, we believe, that it should have the primary opportunity through its courts to determine the intended scope of its own legislation and to pass upon the validity of that legislation under its own constitution as well as under the Constitution of the United States.' 266 F.Supp. 401, 405 (1966).
15
Although the question of Puerto Rico's status under 28 U.S.C. § 2881 was raised in neither the Jurisdictional Statement nor the Motion to Affirm in Wackenhut, and we do not normally feel ourselves bound by a sub silentio exercise of jurisdiction, see Hagans v. Lavine, 415 U.S. 528, 535 n. 5, 94 S.Ct. 1372, 1377, 39 L.Ed.2d 577 (1974); United States v. More, 3 Cranch 159, 172, 2 L.Ed. 397 (1805), this Court has noted that in three-judge court cases, 'where . . . the responsibility (is) on the courts to see that the three-judge rule (is) followed,' unexplained action may take on added significance. Stainback v. Mo Hock Ke Lok Po, 336 U.S., at 379—380, 69 S.Ct., at 612—613. This is particularly so, when as in Wackenhut, the opinion supporting the judgment over which we exercised appellate jurisdiction had expressed the view that abstention was appropriate for reasons of comity, an oft-repeated justification for the abstention doctrine, see, e.g., Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 500, 61 S.Ct. 643, 645, 85 L.Ed. 971 (1941),10 as well as the principal underpinning of the Three-Judge Court Act. See Steffel v. Thompson, 415 U.S. 452, 465—466, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974).
16
While still of the view that § 2281 is not 'a measure of broad social policy to be construed with great liberality,' Phillips v. United States, 312 U.S. 246, 251, 61 S.Ct. 480, 483, 85 L.Ed. 800 (1941), we believe that the established federal judicial practice of treating enactments of the Commonwealth of Puerto Rico as 'State statute(s)' for purposes of the Three-Judge Court Act, serves, and does not expand, the purposes of § 2281. We therefore hold that a three-judge court was properly convened under that statute,11 and that direct appeal to this Court was proper under 28 U.S.C. § 1253. Accordingly, we now turn to the merits.
II
17
Appellants challenge the District Court's holding that the appellee was denied due process of law by the omission from § 2512(b), as it incorporates § 1722, of provisions for preseizure notice and hearing. They argue that seizure for purposes of forfeiture is one of those "extraordinary situations' that justify postponing notice and opportunity for a hearing.' Fuentes v. Shevin, 407 U.S., at 90, 92 S.Ct., at 1999; see Sniadach v. Family Finance Corp., 395 U.S. 337, 339, 89 S.Ct. 1820, 1821, 23 L.Ed.2d 349 (1969); Boddie v. Connecticut, 401 U.S. 371, 378—379, 91 S.Ct. 780, 786—787, 28 L.Ed.2d 113 (1971). We agree.12
18
In holding that lack of preseizure notice and hearing denied due process, the District Court relied primarily upon our decision in Fuentes v. Shevin, supra. Fuentes involved the validity of Florida and Pennsylvania replevin statutes permitting creditors to seize goods allegedly wrongfully detained. A writ of replevin could be obtained under the Florida statute upon the creditor's bare assertion to a court clerk that he was entitled to the property, and under the Pennsylvania statute, upon filing an affidavit fixing the value of the property, without alleging legal entitlement to the property. Fuentes held that the statutory procedures deprived debtors of their property without due process by failing to provide for hearings "at a meaningful time." 407 U.S., at 80, 92 S.Ct., at 1994.
19
Fuentes reaffirmed, however, that, in limited circumstances, immediate seizure of a property interest, without an opportunity for prior hearing, is constitutionally permissible. Such circumstances are those in which
20
'the seizure has been directly necessary to secure an important governmental or general public interest. Second, there has been a special need for very prompt action. Third, the State has kept strict control over its monopoly of legitimate force: the person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance.' Id., at 91, 92 S.Ct., at 2000.
21
Thus, for example, due process is not denied when postponement of notice and hearing is necessary to protect the public from contaminated food, North American cold Storage Co. v. Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195 (1908); from a bank failure, Coffin Bros. & Co. v. Bennett, 277 U.S. 29, 48 S.Ct. 422, 72 L.Ed. 768 (1928); or from misbranded drugs, Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950); or to aid the collection of taxes, Phillips v. Commissioner, 283 U.S. 589, 51 S.Ct. 608, 75 L.Ed. 1289 (1931); or the war effort, United States v. Pfitsch, 256 U.S. 547, 41 S.Ct. 569, 65 L.Ed. 1084 (1921).
22
The considerations that justified postponement of notice and hearing in those cases are present here. First, seizure under the Puerto Rican statutes serves significant governmental purposes: Seizure permits Puerto Rico to assert in rem jurisdiction over the property in order to conduct forfeiture proceedings,13 thereby fostering the public interest in preventing continued illicit use of the property and in enforcing criminal sanctions. Second, preseizure notice and hearing might frustrate the interests served by the statutes, since the property seized—as here, a yacht—will often be of a sort that could be removed to another jurisdiction, destroyed, or concealed, if advance warning of confiscation were given. And finally, unlike the situation in Fuentes, seizure is not initiated by self-interested private parties; rather, Commonwealth officials determine whether seizure is appropriate under the provisions of the Puerto Rican statutes.14 In these circumstances, we hold that this case presents an 'extraordinary' situation in which postponement of notice and hearing until after seizure did not deny due process.15
III
23
Appellants next argue that the District Court erred in holding that the forfeiture statutes unconstitutionally authorized the taking for government use of innocent parties' property without just compensation. They urge that a long line of prior decisions of this Court establish the principle that statutory forfeiture schemes are not rendered unconstitutional because of their applicability to the property interests of innocents, and further that United States v. United States Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971), did not—contrary to the opinion of the District Court—overrule those prior precedents sub silentio. We agree. The historical background of forfeiture statutes in this country and this Court's prior decisions sustaining their constitutionality lead to that conclusion.
24
At common law the value of an inanimate object directly or indirectly causing the accidental death of a King's subject was forfeited to the Crown as a deodand.16 The origins of the deodand are traceable to Biblical17 and pre-Judeo-Christian practices, which reflected the view that the instrument of death was accused and that religious expiation was required. See O. Holmes, the Common Law, c. 1 (1881). The value of the instrument was forfeited to the King, in the belief that the King would provide the money for Masses to be said for the good of the dead man's soul, or insure that the deodand was put to charitable uses. 1 W. Blackstone, Commentaries *300.18 When application of the deodand to religious or eleemosynary purposes ceased, and the deodand became a source of Crown revenue, the institution was justified as a penalty for carelessness.19
25
Forfeiture also resulted at common law from conviction for felonies and treason. The convicted felon forfeited his chattels to the Crown and his lands escheated to his lord; the convicted traitor forfeited all of his property, real and personal, to the Crown. See 3 W. Holdsworth, History of English Law 68—71 (3d ed. 1927); 1 F. Pollock & F. Maitland, History of English Law 351 (2d ed. 1909). The basis for these forfeitures was that a breach of the criminal law was an offense to the King's peace, which was felt to justify denial of the right to own property. See 1 W. Blackstone, Commentaries *299.20
26
In addition, English Law provided for statutory forfeitures of offending objects used in violation of the customs and revenue laws—likely a product of the confluence and merger of the deodand tradition and the belief that the right to own property could be denied the wrongdoer. Statutory forfeitures were most often enforced under the in rem procedure utilized in the Court of Exchequer to forfeit the property of felons. See 3 W. Blackstone, Commentaries *261—262; C. J. Hendry Co. v. Moore, 318 U.S. 133, 137—138, 63 S.Ct. 499, 501—502, 87 L.Ed. 663 (1943).
27
Deodands did not become part of the common-law tradition of this country. See Parker-Harris Co. v. Tate, 135 Tenn. 509, 188 S.W. 54 (1916). Nor has forfeiture of estates as a consequence of federal criminal conviction been permitted, see 18 U.S.C. § 3563; Rev.Stat. § 5326 (1874); 1 Stat. 117 (1790). Forfeiture of estates resulting from a conviction for treason has been constitutionally proscribed by Art. III, § 3, though forfeitures of estates for the lifetime of a traitor have been sanctioned, see Wallach v. Van Riswick, 92 U.S. 202, 23 L.Ed. 473 (1876). But '(l)ong before the adoption of the Constitution the common law courts in the Colonies—and later in the states during the period of Confederation—were exercising jurisdiction in rem in the enforcement of (English and local) forfeiture statutes,' C. J. Hendry Co. v. Moore, supra, 318 U.S., at 139, 63 S.Ct., at 503, which provided for the forfeiture of commodities and vessels used in violations of customs and revenue laws. See id., at 145—148, 63 S.Ct., at 505—507; Boyd v. United States, 116 U.S. 616, 623, 6 S.Ct. 524, 528, 29 L.Ed. 746 (1886). And almost immediately after adoption of the Constitution, ships and cargoes involved in customs offenses were made subject to forfeiture under federal law,21 as were vessels used to deliver slaves to foreign countries,22 and somewhat later those used to deliver slaves to this country.23 The enactment of forfeiture statutes has not abated; contemporary federal and state forfeiture statutes reach virtually any type of property that might be used in the conduct of a criminal enterprise.
28
Despite this proliferation of forfeiture enactments, the innocence of the owner of property subject to forfeiture has almost uniformly been rejected as a defense. Thus, Mr. Justice Story observed in The Palmyra, 12 Wheat. 1, 6 L.Ed. 531 (1827), that a conviction for piracy was not a prerequisite to a proceeding to forfeit a ship allegedly engaged in piratical aggression in violation of a federal statute:
29
'It is well known, that at the common law, in many cases of felonies, the party forfeited his goods and chattels to the crown. The forfeiture did not, strictly speaking, attach in rem; but it was a part, or at least a consequence, of the judgment of conviction. .. . (T)he (Crown's right to the goods and chattels) attached only by the conviction of the offender. . . . But this doctrine never was applied to seizures and forfeitures, created by statute, in rem, cognizable on the revenue side of the Exchequer. The thing is here primarily considered as the offender, or rather the offence is attached primarily to the thing; and this, whether the offence be malum prohibitum, or malum in se . . .. (T)he practice has been, and so this Court understand the law to be, that the proceeding in rem stands independent of, and wholly unaffected by any criminal proceeding in personam.' Id., at 14—15, 6 L.Ed. 531.
30
This rationale was relied upon to sustain the statutory forfeiture of a vessel found to have been engaged in piratical conduct where the innocence of the owner was 'fully established.' United States v. Brig Malek Adhel, 2 How. 210, 238, 11 L.Ed. 239 (1844). The vessel was 'treated as the offender,' without regard to the owner's conduct, 'as the only adequate means of suppressing the offence or wrong, or insuring an indemnity to the injured party.' Id., at 233, 11 L.Ed. 239.24
31
Dobbins's Distillery v. United States, 96 U.S. 395, 24 L.Ed. 637 (1878), is an illustration of how severely this principle has been applied. That case involved a lessee's violations of the revenue laws which led to the seizure of real and personal property used in connection with a distillery. The lessor's assertions of innocence were rejected as a defense to a federal statutory forfeiture of his entire property, for the offense 'attached primarily to the distillery, and the real and personal property used in connection with the same, without any regard whatsoever to the personal misconduct or responsibility of the owner, beyond what necessarily arises from the fact that he leased the property to the distiller, and suffered it to be occupied and used by the lessee as a distillery.' Id., at 401, 24 L.Ed. 637; see United States v. Stowell, 133 U.S. 1, 13—14, 10 S.Ct. 244, 246, 33 L.Ed. 555 (1890).
32
Decisions reaching the same conclusion have continued into this century. In Goldsmith-Grant Co. v. United States, 254 U.S. 505, 41 S.Ct. 189, 65 L.Ed. 376 (1921), it was held that the federal taxfraud forfeiture statute did not deprive an innocent owner of his property in violation of the Fifth Amendment. There, the claimant was a conditional vendor of a taxicab that had been used in the removal and concealment of distilled spirits upon which the federal tax was unpaid. Although recognizing that arguments against the application of the statute to cover an innocent owner were not without force, the Court rejected them, saying:
33
'In breaches of revenue provisions, some forms of property are facilities, and therefore it may be said, that Congress interposes the care and responsibility of their owners in aid of the prohibitions of the law and its punitive provisions, by ascribing to the property a certain personality, a power of complicity and guilt in the wrong. In such case there is some analogy to the law of deodand by which a personal chattel that was the immediate cause of the death of any reasonable creature was forfeited. To the superstitious reason to which the rule was ascribed, Blackstone adds: 'That such misfortunes are in part owing to the negligence of the owner, and therefore, he is properly punishable by such forfeiture.' . . .
34
'But whether the reason for (the forfeiture) be artificial or real, it is too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced.' Id., at 510—511, 41 S.Ct., at 191, 65 L.Ed. 376.
35
See also United States v. One Ford Coupe Automobile, 272 U.S. 321, 47 S.Ct. 154, 71 L.Ed. 279 (1926) (Brandeis, J.); General Motors Acceptance Corp. v. United States, 286 U.S. 49, 52 S.Ct. 468, 76 L.Ed. 971 (1932) (Cardozo, J.). In Van Oster v. Kansas, 272 U.S. 465, 47 S.Ct. 133, 71 L.Ed. 354 (1926), the Court upheld , against a Fourteenth Amendment attack, a forfeiture under state law of an innocent owner's interest in an automobile that he had entrusted to an alleged wrongdoer. Judicial inquiry into the guilt or innocence of the owner could be dispensed with, the Court held, because state lawmakers, in the exercise of the police power, were free to determine that certain uses of property were undesirable and then establish 'a secondary defense against a forbidden use . . ..' Id., at 467, 47 S.Ct., at 134.
36
Plainly, the Puerto Rican forfeiture statutes further the punitive and deterrent purposes that have been found sufficient to uphold, against constitutional challenge, the application of other forfeiture statutes to the property of innocents.25 Forfeiture of conveyances that have been used—and may be used again—in violation of the narcotics laws fosters the purposes served by the underlying criminal statutes, both by preventing further illicit use of the conveyance and by imposing an economic penalty, thereby rendering illegal behavior unprofitable. See, e.g., H.R.Rep.No.1054, 76th Cong., 1st Sess. (1939); S.Rep.No.926, 76th Cong., 1st Sess. (1939); H.R.Rep.No.2751, 81st Cong., 2d Sess. (1950); S.Rep.No.1755, 81st Cong., 2d Sess. (1950).26 To the extent that such forfeiture provisions are applied to lessors, bailors, or secured creditors who are innocent of any wrongdoing, confiscation may have the desirable effect of inducing them to exercise greater care in transferring possession of their property. Cf. United States v. One 1936 Model Ford V—8 DeLuxe Coach, 307 U.S. 219, 238 241, 59 S.Ct. 861, 870—871, 83 L.Ed. 1249 (1939) (Douglas, J., dissenting).
37
Against the legitimate governmental interests served by the Puerto Rican statute and the long line of this Court's decisions which squarely collide with appellee's assertion of a constitutional violation, the District Court opposed our decision in United States v. United States Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971). This reliance was misplaced. In Coin & Currency, the Government claimed that the privilege against self-incrimination could not be asserted in a forfeiture proceeding under 26 U.S.C. § 7302 by one in possession of money seized from him when used in an illegal bookmaking operation. In the Government's view, the proceeding was not 'criminal' because the forfeiture was authorized without regard to the guilt or innocence of the owner of the money. The Court's answer was that § 7302, read in conjunction with 19 U.S.C. § 1618, manifested a clear intention 'to impose a penalty only upon those who (were) significantly involved in a criminal enterprise,' 401 U.S., at 721 722, 91 S.Ct., at 1045, and in that circumstance the privilege could be asserted in the forfeiture proceeding by the person from whom the money was taken. Thus, Coin & Currency did not overrule prior decisions that sustained application to innocents of forfeiture statutes, like the Puerto Rican statutes, not limited in application to persons 'significantly involved in a criminal enterprise.'
38
This is not to say, however, that the 'broad sweep' of forfeiture statutes remarked in Coin & Currency could not, in other circumstances, give rise to serious constitutional questions. Mr. Chief Justice Marshall intimated as much over a century and a half ago in observing that 'a forfeiture can only be applied to those cases in which the means that are prescribed for the prevention of a forfeiture may be employed.' Peisch v. Ware, 4 Cranch 347, 363, 2 L.Ed. 643 (1808). It therefore has been implied that it would be difficult to reject the constitutional claim of an owner whose property subjected to forfeiture had been taken from him without his privity or consent. See id., at 364, 2 L.Ed. 643; Goldsmith-Grant Co. v. United States, 254 U.S., at 512, 41 S.Ct., at 191; United States v. One Ford Coupe Automobile, 272 U.S., at 333, 47 S.Ct., at 158; van Oster v. Kansas, 272 U.S., at 467, 47 S.Ct., at 134. Similarly, the same might be said of an owner who proved not only that he was uninvolved in and unaware of the wrongful activity, but also that he had done all that reasonably could be expected to prevent the proscribed use of his property;27 for, in that circumstance, it would be difficult to conclude that forfeiture served legitimate purposes and was not unduly oppressive. Cf. Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554 (1960).
39
But in this case appellee voluntarily entrusted the lesses with possession of the yacht, and no allegation has been made or proof offered that the company did all that it reasonably could to avoid having its property put to an unlawful use. Cf. Goldblatt v. Town of Hempstead, 369 U.S. 590, 596, 82 S.Ct. 987, 991, 8 L.Ed.2d 130 (1962). The judgment of the District Court is reversed.
40
Reversed.
41
Mr. Justice STEWART joins Parts I and II of the Court's opinion, but, for the reasons stated in the dissenting opinion of Mr. Justice DOUGLAS, he would hold that the forfeiture of property belonging to an innocent and nonnegligent owner violates the Fifth and Fourteenth Amendments.
42
Mr. Justice WHITE, with whom Mr. Justice POWELL joins, concurring.
43
I join the Court's opinion, and agree that there was no constitutional necessity under Fuentas v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), or any other case in this Court to accord the owner-lessor of the yacht a hearing in the circumstances of this case. I add, however, that the presence of important public interests which permits dispensing with a preseizure hearing in the instant case, is only one of the situations in which no prior hearing is required. See Mitchell v. Grant, 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406; Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (White J., concurring).
44
Mr. Justice DOUGLAS, dissenting in part.
45
While I agree that Puerto Rico is a State for purposes of the three-judge court jurisdiction, I dissent on the merits.
46
The discovery of marihuana on the yacht took place May 6, 1972. The seizure of the yacht took place on July 11, 1972—over two months later. In view of the long delay in making the seizure where is that 'special need for very prompt action' which we emphasized in Fuentes v. Shevin, 407 U.S. 67, 91, 92 S.Ct. 1983, 2000, 32 L.Ed.2d 556? The Court cites instances of exigent circumstance—seized poisoned food, dangerous drugs, failure of a bank, and the like. But they are inapt.
47
Fuentes v. Shevin, involved a contest between debtor and creditor and a resolution of private property rights not implicated in an important governmental purpose. Here important governmental purposes are involved. As to that type of case we said in Fuentes: 'First, in each case, the seizure has been directly necessary to secure an important governmental or general public interest. Second, there has been a special need for very prompt action. Third, the State has kept strict control over its monopoly of legitimate force: the person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance. Thus, the Court has allowed summary seizure of property to collect the internal revenue of the United States, to meet the needs of a national war effort, to protect against the economic disaster of a bank failure, and to protect the public from misbranded drugs and contaminated food.' Id., at 91—92, 92 S.Ct., at 2000.
48
Postponement of notice and hearing until after seizure of the vessel apparently was not needed here, as the District Court held. Yet after that two-month delay, forfeiture of the vessel is ordered without notice to the owner and without just compensation for the taking. On those premises this is the classic case of lack of procedural due process.
49
The owner on the record before us was wholly innocent of knowing that the lessee was using the vessel illegally. To analogize this case to the old cases of forfeiture of property of felons is peculiarly inappropriate. Nor is this a case where owner and lessee are 'in cahoots' in a smuggling venture or negligent in any way. The law does provide for forfeitures of property even of the innocent. But as Mr. Chief Justice Marshall said in Peisch v. Ware, 4 Cranch 347, 365, 2 L.Ed. 643: '(T)he law is not understood to forfeit the property of owners or consignees, on account of the misconduct of mere strangers, over whom such owners or consignees could have no control.'
50
The lessee of the vessel was, of course, no stranger. Here unlike United States v. One 1936 Model Ford V—8 DeLuxe Coach, 307 U.S. 219, 238—239, 59 S.Ct. 861, 870—871, 83 L.Ed. 1249 (Douglas, J., dissenting), there is no suggestion that the lessee was a mere strawman for runners of drugs. Even where such ambiguous circumstances were present the Court refused to impose forfeiture of an auto running illegal whiskey and belonging to those who acted 'in good faith and without negligence.' Id., at 236, 59 S.Ct., at 870.
51
The present case is one of extreme hardship. The District Court found that the owner 'did not know that its property was being used for an illegal purpose and was completely innocent of the lessee's criminal act. After the seizure and within the time allowed by law, the Superintendent (of the Police) notified lessee. Plaintiff was never notified and, since lessee did not post bond, the yacht was forfeited to the Commonwealth of Puerto Rico. It was not until plaintiff attempted to recover possession of the yacht after lessee had defaulted in the rental payments that plaintiff learned of its forfeiture.' 363 F.Supp. 1337, 1340. Moreover, the owner had included in the lease a prohibition against use of the yacht for an unlawful project.
52
If the yacht had been notoriously used in smuggling drugs, those who claim forfeiture might have equity on their side. But no such showing was made; and so far as we know only one marihuana cigarette was found on the yacht. We deal here with trivia where harsh judge-made law should be tempered with justice. I realize that the ancient law is founded on the fiction that the inanimate object itself is guilty of wrongdoing. United States v. United States Coin & Currency, 401 U.S. 715, 719—720, 91 S.Ct. 1041, 1043 1044, 28 L.Ed.2d 434. But that traditional forfeiture doctrine cannot at times be reconciled with the requirements of the Fifth Amendment. Id., at 721, 91 S.Ct., at 1044. Such a case is the present one.
53
Some forfeiture statutes are mandatory, title vesting in the State when the forfeiting act occurs. United States v. Stowell, 133 U.S. 1, 19, 10 S.Ct. 244, 248, 33 L.Ed. 555. Others are conditional, forfeiture occurring only if and when the State follows prescribed procedures. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 699, 85 S.Ct. 1246, 1250, 14 L.Ed.2d 170. Some forfeiture statutes exclude from their scope, property used in violation of the law as to which the owner is not 'a consenting party or privy.' See 19 U.S.C. § 1594. Some provide for discretionary administrative or judicial relief from forfeiture if the forfeiture was incurred without willful negligence or without any intention on the part of the owner to violate the law, 19 U.S.C. § 1618, or if the owner had at no time any knowledge or reason to believe that the property was used in violation of specified laws, 18 U.S.C. § 3617(b); United States v. One 1936 Model Ford V—8 DeLuxe Coach, 307 U.S. 219, 59 S.Ct. 861, 83 L.Ed. 1249.
54
Puerto Rico, however, has no provision for mitigation in case the owner of the seized property is wholly innocent of any wrongdoing. And, as the Court says, these absolute, mandatory forfeiture procedures have been supported at least by much dicta in the cases.
55
But in my view, there was a taking of private property 'for public use' under the Fifth Amendment, applied to the States by the Fourteenth, and compensation must be paid an innocent owner. Where the owner is in no way implicated in the illegal project, I see no way to avoid paying just compensation for property taken. I, therefore, would remand the case to the three-judge court for findings as to the innocence of the lessor of the yacht—whether the illegal use was of such magnitude or notoriety that the owner cannot be found faultless in remaining ignorant of its occurrence.
56
The law of deodands* was at one time as severe as the rule applied this day by the Court. See Law of Deodands, 34 Law Mag. 188—191 (1845). Its severity was tempered by juries who were sustained by the King's Bench, id., at 191. The 'greater moderation' of the jurors in light of 'the moral innocence of the party incurring the penalty,' id., at 190, is an example we should follow here. While the law of deodands does not obtain here (cf. J. W. Goldsmith-Grant Co. v. United States, 254 U.S. 505, 510—511, 41 S.Ct. 189, 190—191, 65 L.Ed. 376; United States v. One Ford Coupe, 272 U.S. 321, 333, 47 S.Ct. 154, 158, 71 L.Ed. 279), the quality of mercy is no stranger to our equity jurisdiction, Hecht Co. v. Bowles, 321 U.S. 321, 329—330, 64 S.Ct. 587, 591—592, 88 L.Ed. 754; United States v. Wiltberger, 5 Wheat. 76, 95, 5 L.Ed. 37.
1
Title 24, §§ 2512(a)(4) and (b) provide:
'(a) The following shall be subject to forfeiture to the Commonwealth of Puerto Rico:
'(4) All conveyances, including aircraft, vehicles, mount or vessels, which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of property described in clauses (1) and (2) of this subsection;
'(b) Any property subject to forfeiture under clause (4) of subsection (a) of this section shall be seized by process issued pursuant to Act No. 39, of June 4, 1960, as amended, known as the Uniform Vehicle, Mount, Vessel and Plane Seizure Act, sections 1721 and 1722 of Title 34.'
2
Title 34, § 1722, provides:
'Whenever any vehicle, mount, or other vessel or plane is seized . . . such seizure shall be conducted as follows:
'(a) The proceedings shall be begun by the seizure of the property by the Secretary of Justice, the Secretary of the Treasury or the Police Superintendent, through their delegates, policemen or other peace officers. The officer under whose authority the action is taken shall serve notice on the owner of the property seized or the person in charge thereof or any person having any known right or interest therein, of the seizure and of the appraisal of the properties so seized, said notice to be served in an authentic manner, within ten (10) days following such seizure and such notice shall be understood to have been served upon the mailing thereof with return receipt requested. The owners, persons in charge, and
other persons having a known interest in the property so seized may challenge the confiscation within the fifteen (15) days following the service of the notice on them, through a complaint against the officer under whose authority the confiscation has been made, on whom notice shall be served, and which complaint shall be filed in the Part of the Superior Court corresponding to the place where the seizure was made and shall be heard without subjection to docket. All questions that may arise shall be decided and all other proceedings shall be conducted as in an ordinary civil action. Against the judgment entered no remedy shall lie other than a certiorari before the Supreme Court, limited to issues of law. The filing of such complaint within the period herein established shall be considered a jurisdictional prerequisite for the availing of the action herein authorized.
'(b) Every vehicle, mount, or any vessel or plane so seized shall be appraised as soon as taken possession of by the officer under whose authority the seizure took place, or by his delegate, with the exception of motor vehicles, which shall be placed under the custody of the Office of Transportation of the Commonwealth of Puerto Rico, which shall appraise same immediately upon receipt thereof.
'In the event of a judicial challenge of the seizure, the court shall, upon request of the plaintiff and after hearing the parties, determine the reasonableness of the appraisal as an incident of the challenge.
'Within ten (10) days after the filing of the challenge, the plaintiff shall have the right to give bond in favor of the Commonwealth of Puerto Rico before the pertinent court's clerk to the satisfaction of the court, for the amount of the assessed value of the seized property, which bond may be in legal tender, by certified check, hypothecary debentures, or by insurance companies. Upon the acceptance of the bond, the court shall direct that the property be returned to the owner thereof. In such case, the provisions of the following paragraphs (c), (d) and (e) shall not apply.
'When bond is accepted the subsequent substitution of the seized property in lieu of the bond shall not be permitted, said bond to answer for the seizure if the lawfulness of the latter is upheld, and the court shall provide in the resolution issued to that effect, for
the summary forfeiture execution of said bond by the clerk of the court and for the covering of such bond into the general funds of the Government of Puerto Rico in case it may be in legal tender or by certified check; the hypothecary debentures or debentures of insurance companies shall be transmitted by the pertinent clerk of the court to the Secretary of Justice for execution.
'(c) After fifteen (15) days have elapsed since service of notice of the seizure without the person or persons with interest in the property seized have (sic) filed the corresponding challenge, or after twenty-five (25) days have elapsed since service of notice of the seizure without the court's having directed that the seized property be returned on account of the bond to that effect having been given, the officer under whose authority the seizure took place, the delegate thereof, or the Office of Transportation, as the case may be, may provide for the sale at auction of the seized property, or may set the same aside for official use of the Government of Puerto Rico. In case the seized property cannot be sold at auction or set aside for official use of the Government, the property may be destroyed by the officer in charge, setting forth in a minute which he shall draw up for the purpose, the description of the property, the reasons for its destruction and the date and place where it is destroyed, and he shall serve notice with a copy thereof on the Secretary of Justice.
'(d) In case the vehicle, mount, or vessel or plane is sold at auction, the proceeds from the sale shall be covered into the general fund of the Government of Puerto Rico, after deducting and reimbursing expenses incurred.
'(e) If the seizure is judicially challenged and the court declares same illegal, the Secretary of the Treasury of Puerto Rico shall, upon presentation of a certified copy of the final decision or judgment of the court, pay to the challenger the amount of the appraisal or the proceeds from the public auction sale of such property, whichever sum is the highest, plus interest thereon at the rate of 6% per annum, counting from the date of the seizure.'
3
P.R.Laws Ann., Tit. 23, §§ 451(e), 451b, and 451c, provide that no person shall 'operate or give permission for the operation of' a vessel in Commonwealth waters without registering his interest in the vessel. Only the lessees had registered the yacht, and this led the District Court to conclude that '(f)rom the record in this case, we are not disposed to rule that the Commonwealth of Puerto Rico did not have reason to believe that (postseizure) notice to the owner was, in fact, given.' 363 F.Supp. 1337, 1342 (PR 1973). Appellee does not contest this ruling.
4
It is agreed that the yacht was appraised at a value of $19,800, and that the Chief of the Office of Transportation of the Commonwealth purports to maintain possession of the yacht as legal owner.
5
Unconstitutionality of the statutes was alleged under both the Fifth and Fourteenth Amendments. The District Court deemed it unnecessary to determine which Amendment applied to Puerto Rico, see Fornaris v. Ridge Tool Co., 400 U.S. 41, 43—44, 91 S.Ct. 156, 157—158, 27 L.Ed.2d 174 (1970), and we agree. The Joint Resolution of Congress approving the Constitution of the Commonwealth of Puerto Rico, subjects its government to 'the applicable provisions of the Constitution of the United States,' 66 Stat. 327, and 'there cannot exist under the American flag any governmental authority untrammeled by the requirements of due process of law as guaranteed by the Constitution of the United States.' Mora v. Mejias, 206 F.2d 377, 382 (CA1 1953) (Magruder, C.J.). See 48 U.S.C. § 737.
6
Appellants initially opposed the convening of a three-judge court, arguing that the District Court should abstain. After a hearing, appellants withdrew their opposition and consented to the convening of a three-judge court.
7
That section 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 cvil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.' (Emphasis added.)
8
That section provides:
'An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this tile.' (Emphasis added.)
9
The court in Mora quoted from the statement of the United States to the Secretary General of the United Nations explaining its decision to cease transmission of information concerning Puerto Rico under Art. 73(e) of the United Nations Charter, which requires the communication of certain technical information by countries responsible for administering territories whose people have not yet attained a full measure of self-government, 115 F.Supp., at 612: "By the various actions taken by the Congress and the people of Puerto Rico, Congress has agreed that Puerto Rico shall have, under that Constitution, freedom from control or interference by the Congress in respect of internal government and administration, subject only to compliance with applicable provisions of the Federal Constitution, the Puerto Rican Federal Relations Act and the acts of Congress authorizing and approving the Constitution, as may be interpreted by Judicial decision. Those laws which directed or authorized interference with matters of local government by the Federal Government have been repealed."
28 Dept. of State Bull. 584, 587 (1953). But cf. Note, Puerto Rico; Colony or Commonwealth? 6 N.Y.U.J.Int'l L. & P. 115 (1973).
10
See also H. Friendly, Federal Jurisdiction: A General View 93 (1973).
11
Fornaris v. Ridge Tool Co., 400 U.S. 41, 91 S.Ct. 156, 27 L.Ed.2d 174 (1970), does not militate against this holding. There, we held that a Puerto Rican statute was not a 'State statute' within 28 U.S.C. § 1254(2), which permits appeals from judgments of federal courts of appeals holding state statutes unconstitutional. We noted that 28 U.S.C. § 1258, requiring that we permit final judgments of the Supreme Court of the Commonwealth of Puerto Rico to be reviewed by appeal or by certiorari, directly corresponded to the provisions of 28 U.S.C. § 1257 providing for review of final judgments of 'state' courts. Since no parallel provision was added to § 1254(2) to permit appeals from the courts of appeals holding Puerto Rican statutes unconstitutional, we said:
'Whether the omission was by accident or by design, our practice of strict construction of statutes authorizing appeals dictates that we not give an expansive interpretation to the word 'State." 400 U.S., at 42 n. 1, 91 S.Ct., at 157.
This conclusion seems compelled by the history of the close relationship between 28 U.S.C. § 1254(2) and 28 U.S.C. § 1257. In the Judiciary Act of 1789, 1 Stat. 73, 85—86, final decisions of state courts sustaining state statutes against challenges under the Federal Constitution were subjected to review by this Court on writ of error. See King Mfg. Co. v. City Council of Augusta, 277 U.S. 100, 48 S.Ct. 489, 72 L.Ed. 801 (1928). But prior to 1925, there was no appeal from 'final' judgments of the federal circuit courts. See 36 Stat. 1157 (1911). When
consideration was being given to amendment of the Judiciary Act in 1924 and 1925
'(a)ttention was drawn to the disparity between the want of obligatory review over (decisions of the circuit courts involving the constitutionality of state statutes) and the existence of obligatory jurisdiction over a similar class of cases in the state courts. Senator Copeland rehearsed before the Senate correspondence he had had on this point with the Chief Justice, who had urged that if it was desirable to put the circuit courts of appeals on the same level with the state courts, it would be better to withdraw review as of right from the state courts and subject the decisions of both the state courts and the circuit courts solely to a discretionary review by the Supreme Court, rather than to allow obligatory review over all constitutional cases from both courts. The Chief Justice, however, justified the proposed discrimination on the ground that a circuit court appeals in deciding a federal constitutional question 'would be more likely to preserve the Federal view of the issue than the State court, at least to an extent to justify making a review of its decision by our court conditional upon our approval.' However, an amendment prevailed which met this discrimination by allowing writ of error to the circuit courts of appeals in cases sustaining a constitutional claim against a state statute. The argument advanced by the Chief Justice thus became the basis for a new development of the principle which since 1789 had been the basis of Supreme Court review of the highest courts of the states. Due to the belief that the state courts would be more jealous of local rights than of federal claims, review had lain as of right where the constitutional claim was advanced and denied. Now, due to the belief . . . that the federal court would sustain constitutional claims as opposed to the local right, review was provided from the circuit courts of appeals where the constitutional claim was advanced and allowed. Thereby, the Senate 'intended to put the two on a perfect parity, allowing a writ of error from the circuit court of appeals under
conditions exactly the same, except reversed, and allowing a writ of certiorari in the one case as in the other case, so that the two would be entirely harmonious." F. Frankfurther & J. Landis, The Business of the Supreme Court 277—278 (1928) (footnotes omitted).
Thus, against that background, when Congress made § 1258 only a counterpart of § 1257, there could be no basis for an expansive reading of the word 'State' in § 1254(2), in the absence of its congressional amendment.
We have no occasion to address the question whether Puerto Rico is a 'State' for purposes of 28 U.S.C. § 1343, a jurisdictional basis of appellee's complaint. Since the complaint and lease agreement, as incorporated, fairly read, leave little doubt that the matter in controversy exceeds $10,000 and arises under the Constitution of the United States, there is jurisdiction under 28 U.S.C. § 1331.
12
Appellants also argue that the seizure did not result in any injury to appellee that constituted failure of preseizure notice and hearing a denial of due process. This is so, they contend, because the lease gave the lessees exclusive right to possession at the time of the seizure, and therefore appellee's nonpossessory interest was adequately protected by the statutory provisions for a postseizure hearing. But the lease provides that lessees' failure, inter alia, within 15 days after notice from appellee to pay arrears of rent or use the yacht solely for legal purposes would establish a default entitling appellee to possession. Whether a default had in fact occurred between May 6, 1972, when a lessee was first accused of a narcotics violation, and the date of seizure, July 11, 1972, is not clear from the record, although it is clear that appellee did not attempt to repossess the yacht until October 19, 1972.
Since, however, our holding is that preseizure notice and hearing are not required by due process in the context of this forfeiture,
we have no occasion to remand for a determination (1) whether the company had an immediate, but as yet unexercised, right to possession on the date of seizure or merely a right to collect rents, together with a reversionary interest, and (2) whether either or both of these property interests would be of sufficient significance to require that the company be given an advance opportunity to contest the seizure. Cf. Fuentes v. Shevin, 407 U.S. 67, 86—87, 92 S.Ct. 1983, 1997—1998, 32 L.Ed.2d 556 (1972).
13
Cf. Ownbey v. Morgan, 256 U.S. 94, 41 S.Ct. 433, 65 L.Ed. 837 (1921), cited with approval in Fuentes v. Shevin, supra, 407 U.S., at 91 n. 23, 92 S.Ct., at 1999.
14
Fuentes expressly distinguished seizure under a search warrant from seizure under a writ of replevin:
'First, a search warrant is generally issued to serve a highly important governmental need—e.g., the apprehension and conviction of criminals—rather than the mere private advantage of a private party in an economic transaction. Second, a search warrant is
generally issued in situations demanding prompt action. The danger is all too obvious that a criminal will destroy or hide evidence or fruits of his crime if given any prior notice. Third, the Fourth Amendment guarantees that the State will not issue search warrants merely upon the conclusory application of a private party. It guarantees that the State will not abdicate control over the issuance of warrants and that no warrant will be issued without a prior showing of probable cause.' 407 U.S., at 93—94, n. 30, 92 S.Ct., at 2001.
We have no occasion to address the question whether the Fourth Amendment warrant or probable-cause requirements are applicable to seizures under the Puerto Rican statutes.
15
No challenge is made to the District Court's determination that the form of postseizure notice satisfied due process requirements. See n. 3, supra. Notice, of course, was required to be "reasonably calculated' to apprise (the company) of the pendency of the forfeiture proceedings.' Robinson v. Hanrahan, 409 U.S. 38, 40, 93 S.Ct. 30, 31, 34 L.Ed.2d 47 (1972).
16
Deodand derives from the Latin Deo dandum, to be 'given to God.'
17
See Exodus 21:28 ('(i)f an ox gore a man or a woman, and they die, he shall be stoned and his flesh shall not be eaten').
18
See 1 M. Hale, Pleas of the Crown 419, 423—424 (1st Am. ed. 1847); 2 F. Pollock & F. Maitland, History of English Law 473 (2d ed. 1909); Law of Deodands, 34 Law Mag. 188, 189 (1845); Finkelstein, The Goring Ox: Some Historical Perspectives on Deodands, Forfeitures, Wrongful Death and the Western Notion of Sovereignty, 46 Temp.L.Q. 169, 182 (1973).
19
See Hale, n. 18, supra, at 424. Indeed, the abolition of the deodand institution in England in 1846, 9 & 10 Vict. c. 62, went hand in hand with the passage of Lord Campbell's Act creating a cause of action for wrongful death, 9 & 10 Vict. c. 93 (1846). Passage of the two bills was linked, because Lord Campbell was unwilling to eliminate the deodand institution, with its tendency to deter carelessness, particularly by railroads, unless a right of action was granted to the dead man's survivors. See 77 Hansard's Parliamentary Debates, Third Series 1031 (1845). See generally Finkelstein, n. 18, supra, at 170—171.
The adaptation of the deodand institution to serve the more contemporary function of deterrence is an example of a phenomenon discussed by Mr. Justice Holmes:
'The customs, beliefs, or needs of a primitive time establish a rule or a formula. In the course of centuries the custom, belief, or necessity disappears, but the rule remains. The reason which gave rise to the rule has been forgotten, and ingenious minds set themselves to inquire how it is to be accounted for. Some ground of policy is thought of, which seems to explain it and to reconcile it with the present state of things; and then the rule adapts itself to the new reasons which have been found for it, and enters on a new career. The old form receives a new content, and in time even the form modifies itself to fit the meaning which it has received.' The Common Law 5 (1881).
20
In 1870, England eliminated most forfeitures of those convicted of felonies or treason. 33 & 34 Vict. c. 23.
21
Act of July 31, 1789, §§ 12, 36, 1 Stat. 39, 47; see also Act of Aug. 4, 1790, §§ 13, 22, 27, 28, 67, 1 Stat. 157, 161, 163, 176.
22
Act of Mar. 22, 1794, 1 Stat. 347.
23
Act of Mar. 2, 1807, 2 Stat. 426.
24
Thirty years earlier, the Court upheld a forfeiture of a quantity of coffee which had been transferred to bona fide purchasers after violation of the Non-Intercourse Act of 1809, upon reasoning that '(i)n the eternal struggle that exists between the avarice, enterprize and combinations of individuals on the one hand, and the power charged with the administration of the laws on the other, severe laws are rendered necessary to enable the executive to carry into effect the measure of policy adopted by the legislature.' United States v. 1960 Bags of Coffee, 8 Cranch 398, 405, 3 L.Ed. 602 (1814).
25
But for unimportant differences, P.R.Laws Ann., Tit. 24,
§ 2512(a) (Supp.1973) is modeled after 21 U.S.C. § 881(a). The latter section provides:
'(a) The following shall be subject to forfeiture to the United States and no property right shall exist in them:
'(4) All conveyances, including aircraft, vehicles, or vessels, which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of property described in paragraph (1) or (2), except that—
'(A) no conveyance used by any person as a common carrier in the transaction of business as a common carrier shall be forfeited under the provisions of this section unless it shall appear that the owner or other person in charge of such conveyance was a consenting party or privy to a violation of this subchapter or subchapter II of this chapter; and
'(B) no conveyance shall be forfeited under the provisions of this section by reason of any act or omission established by the owner thereof to have been committed or omitted by any person other than such owner while such conveyance was unlawfully in the possession of a person other than the owner in violation of the criminal laws of the United States, or of any State. . . .'
See n. 1, supra. The exceptions contained in subparagraphs (A) and (B) of the federal statute, although having no specific counterpart in § 2512(a)(4), have been judicially recognized by the Supreme Court of Puerto Rico. See General Motors Acceptance Corp. v. Branela, 61 P.R.R. 701 (1943); Metro Taxicabs, Inc. v. Treasurer of Puerto Rico, 73 P.R.R. 164 (1952); Commonwealth v. Superior Court, 94 P.R.R. 687 (1967).
26
Seizure and forfeiture statutes also help compensate the Government for its enforcement efforts and provide methods for obtaining security for subsequently imposed penalties and fines. See, e.g., One Lot Emperald Cut Stones v. United States, 409 U.S. 232, 237, 93 S.Ct. 489, 493, 34 L.Ed.2d 438 (1972).
27
The common law sought to mitigate the harshness of felony and deodand forfeitures. The writ of restitution was available to an individual whose goods were stolen by a thief and forfeited to the crown as a consequence of the thief's conviction. See 2 F. Pollock & F. Maitland, supra, n. 18, at 165—166; 3 W. Holdsworth, History of English Law 280 and n. 3 (3d ed. 1927). Mitigation with respect to deodands was less formalized: 'It seems also clear from the ancient authorities, that jurors always determined the amount of deodand to be imposed with great moderation, and with a due regard to the rights of property and the moral innocence of the party incurring the penalty. Our ancestors seem fully to have perceived the hardship of inflicting such penalty on one who had been guilty of no moral or indeed legal offence; and in all cases, therefore, where death was purely the result of accident, and not of negligence or carelessness, imposed, a nominal fine, or found that only to be the deodand which by its immediate contact occasioned death.' Law of Deodands, supra, n. 18, at 190.
Since 1970 the Federal Government has applied the ameliorative policy—first adopted in England, see United States v. Morris, 10 Wheat, 246, 293—295, 6 L.Ed. 314 (1825)—of providing administrative remissions and mitigations of statutory forfeitures in most cases where the violations are incurred 'without willful negligence' or an intent to commit the offense. See 1 Stat. 122, c. 12 (1790); 1 Stat. 506 (1797); Rev.Stat. §§ 5292—5293 (1874); 19 U.S.C. § 1618; The Laura, 114 U.S. 411, 414—415 (1885); United States v. United States Coin & Currency, 401 U.S. 715, 721, 91 S.Ct. 1041, 1044, 28 L.Ed.2d 434 (1971). Indeed, forfeitures incurred under 21 U.S.C. § 881(a), which served as the model for enactment of the disputed Puerto Rican statute, see n. 25, supra, are subject to the remission and mitigation procedures of 19 U.S.C. § 1618. See 21 U.S.C. § 881(d). Regulations implementing § 1618 provide that, if the seized property was in the possession of another who was responsible for the act which resulted in the seizure, the petitioner must produce evidence explaining the manner in which the other person acquired possession and showing that, prior to parting with the property, he did not know or have reasonable cause to believe that the property would be used in violation of the law or that the violator had a criminal record or a reputation for commercial crime. 19 CFR § 171.13(a). These provisions are also extended to those individuals holding chattel mortgages or conditional sales contracts. 19 CFR § 171.13(b). See also 18 U.S.C. § 3617(b), establishing standards for judicial remission and mitigation of forfeitures resulting from violations of the internal revenue laws relating to liquor.
*
The law of deodands starting with Exodus 21:28 is related by O. Holmes, The Common Law 7 et seq. (1881). Deodand derives from Deo dandum (to be given to God) 'It was to given to God, that is to say to the Church, for the king, to be expended for the good of his soul.' Id., at 24.
| 12
|
416 U.S. 653
94 S.Ct. 2023
40 L.Ed.2d 443
Ulysses Vernon BEASLEY et al., Petitioners,v.FOOD FAIR OF NORTH CAROLINA, INC., et al.
No. 72—1597.
Argued Feb. 19, 1974.
Decided May 15, 1974.
Syllabus
Following discharge of petitioners, managers of meat departments in respondent Food Fair's stores, because of their union membership, the union filed unfair labor practice charges with the National Labor Relations Board, which were dismissed on the ground that the protection of the National Labor Relations Act (NLRA) did not extend to 'supervisors' like petitioners. Thereupon petitioners brought suit in state court under § 95—83 of North Carolina's right-to-work law. The trial court granted respondents' motion for summary judgment. On the ground that enforcing the state law in favor of petitioners was barred by the second clause of § 14(a) of the NLRA ('no employer . . . shall be compelled to deem individuals defined herein as supervisors as employees for the purpose of any law, either national or local, relating to collective bargaining'), the State Supreme Court ultimately upheld that ruling. Held: The second clause of § 14(a) applies to any law requiring an employer to accord to supervisors like petitioners, who are 'the front line of management,' the 'anomalous status of employees,' and enforcement of the North Carolina law would thus flout the national policy against compulsion upon employers from either federal or state authorities to treat supervisors as employees. Pp. 656—662.
282 N.C. 530, 193 S.E.2d 911, affirmed.
BRENNAN, J., delivered the opinion for a unanimous Court.
Larry L. Eubanks, Winston-Salem, N.C., for petitioners.
Ralph Madison Stockton, Jr., Winston-Salem, N.C., for respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
Taft-Hartley amendments1 of the National Labor Relations Act excluded supervisors from the protections of the Act and thus freed employers to discharge supervisors without violating the Act's restraints against discharges on account of labor union membership. The question in this case is whether those amendments also freed the employer from liability in damages to the discharged supervisors under §§ 95—81 and 95—83 of North Carolina's right-to-work law that provides such an action for employees discharged for union membership.2
2
Respondent Food Fair of North Carolina, Inc. (Food Fair), a grocery chain, operates stores throughout North Carolia. Petitioners were managers of meat departments in Food Fair Stores in the Winston-Salem area. When Local 525 of the Amalgamated Meat Cutters and Butcher Workmen of North America, AFL—CIO, organized the stores' meatcutters, petitioners also joined the union. Food Fair discharged them, allegedly on account of their union membership, immediately after Local 525 won a representation election conducted by the National Labor Relations Board. The Local claimed that the discharges constituted an unfair labor practice and filed charges with the Regional Director of the NLRB. The Regional Director refused to issue a complaint on the ground that petitioners were 'supervisors' excluded from the Act's protection. On appeal, the NLRB General Counsel refused to issue a complaint, on the same ground.3 Petitioners thereupon brought this suit in state court against Food Fair under § 95—83. Food Fair contended successfully that the second clause of § 14(a) of the National Labor Relations Act, 29 U.S.C. § 164(a)—'but no employer . . . shall be compelled to deem individuals defined herein as supervisors as employees for the purpose of any law, either national or local, relating to collective bargaining'—prohibited enforcement of the state law in favor of supervisors, and was granted summary judgment. The North Carolina Court of Appeals reversed in reliance upon Hanna Mining Co. v. District 2, Marine Engineers Beneficial Ass'n, AFL—CIO, 382 U.S. 181, 86 S.Ct. 327, 15 L.Ed.2d 254 (1965). 15 N.C.App. 323, 190 S.E.2d 333 (1972). The North Carolina Supreme Court in turn reversed the Court of Appeals and reinstated the summary judgment. 282 N.C. 530, 193 S.E.2d 911 (1973). We granted certiorari, 414 U.S. 907, 94 S.Ct. 217, 38 L.Ed.2d 145 (1973). We affirm.
3
Petitioners concede that the Taft-Hartley amendments exclude supervisors from the protection of the Act. And it is undisputed that petitioners' status as 'supervisors' has been settled by the determinations of the Regional Director and General Counsel of the NLRB. See n. 3, supra; Hanna Mining Co. v. Marine Engineers Beneficial Ass'n, AFL—CIO, supra, 382 U.S., at 190, 86 S.Ct., at 332; Brief for Respondents 7. The Act therefore did not protect petitioners against discharge by Food Fair solely because of their membership in Local 525. Oil City Brass Works v. NLRB, 357 F.2d 466 (CA5 1966); NLRB v. Fullerton Publishing Co., 283 F.2d 545 (CA9 1960). See NLRB v. Inter-City Advertising Co., 190 F.2d 420 (CA4 1951); NLRB v. Griggs Equipment, Inc., 307 F.2d 275 (CA5 1962); NLRB v. Big Three Welding Equipment Co., 359 F.2d 77 (CA5 1966); Brief for Petitioners 8—9.
4
Our inquiry is thus narrowed to the determination of whether Congress, in addition to denying the protections of the federal law to supervisors discharged for union membership, should be taken as having also precluded North Carolina from affording petitioners its state damages remedy for such discharges. Section 14(a) does not wholly foreclose state regulations respecting the status of supervisors, but its two clauses require individualized consideration in view of the Court of Appeals' reliance on Hanna Mining. Hanna, construing the first clause—'Nothing herein shall prohibit any individual employed as a supervisor from becoming or remaining a member of a labor organization'—held that 'certainly Congress made no considered decision generally to exclude state limitations on supervisory organizing,' 382 U.S., at 190, 86 S.Ct., at 332. The Court accordingly held that the Wisonsin antipicketing statutes—that furthered, not hindered, the Act's limitations—could be applied to activity by a union of supervisors.
5
That construction, of course, is consistent with the objectives of the section. But the second clause is a broad command that no employer shall be compelled to treat supervisors as employees for the purpose of 'any law, either national or local, relating to collective bargaining.' Consistently with this broader command, and Hanna's further statement that 'Congress' propelling intention was to relieve employers from any compulsion under the Act and under state law to countenance or bargain with any union of supervisory employees,' 382 U.S., at 189, 86 S.Ct., at 332, the North Carolina Supreme Court concluded that §§ 95—81 and 95—83 of the State's right-to-work law contravened the congressional objective. That court held: 'To permit a state law to deprive an employer of his right to discharge his supervisor for membership in a union would completely frustrate the congressional determination to leave this weapon of self-help to the employer.' 282 N.C., at 541, 193 S.E.2d, at 918.
6
Petitioners argue, however, that Congress must have meant that the reach of the limitation of the second clause that 'no employer . . . shall be compelled to deem . . . supervisors as employees for the purpose of any law, either national or local, relating to collective bargaining' (emphasis supplied) did not bar state damages remedies for the discharge of supervisors for union membership but was a limited prohibition against state regulations that compel the employer to bargain collectively with unions that include supervisors as members. The legislative history of § 14(a), read with its companion amendments, §§ 2(3) and 2(11), satisfies us that Congress embraced laws like North Carolina's §§ 95—81 and 95—83 within the prohibition against 'any (local) law . . . relating to collective bargaining.'
7
Section 2(3) of the National Labor Relations Act before the 1947 Taft-Hartley amendments provided that '(t)he term 'employee' shall include any employee . . ..' 49 Stat. 450. The NLRB, after much vacillation,4 interpreted this term as including supervisors. Packard Motor Car Co. v. NLRB, 330 U.S. 485, 67 S.Ct. 739, 91 L.Ed. 1040 (1947), sustained the Board. Congress reacted by amending §§ 2(3) and 2(11), and enacting § 14(a) for the express purpose of relieving employers of obligations under the Act when supervisors, if employees under the Act, would be the focus of concern. Hanna Mining Co. v. District 2, Marine Engineers Beneficial Ass'n, AFL CIO, supra, 382 U.S., at 188, 86 S.Ct., at 331. Those amendments were the product of compromise of H.R. 3020 and S. 1126, 80th Cong., 1st Sess. (1947). There were differences in the specific provisions addressed to supervisory employees,5 but no difference in objective. Employers were not to be obliged to recognize and bargain with unions including or composed of supervisors,6 because supervisors were management obliged to be loyal to their employer's interests, and their identity with the interests of rank-and-file employees might impair that loyalty and threaten realization of the basic ends of federal labor legislation. Thus the House Report stated:
8
'Management, like labor, must have faithful agents.—If we are to produce goods competitively and in such large quantities that many can buy them at low cost, then, just as there are people on labor's side to say what workers want and have a right to expect, there must be in management and loyal to it persons not subject to influence or control of unions, not only to assign people to their work, to see that they keep at their work and do it well, to correct them when they are at fault, and to settle their complaints and grievances, but to determine how much work employees should do, what pay they should receive for it, and to carry on the whole of labor relations.' H.R.Rep.No.245, 80th Cong., 1st Sess., 16 (1947).
Further:
9
'The bill does not forbid anyone to organize. It does not forbid any employer to recognize a union of foremen. Employers who, in the past, have bargained collectively with supervisors may continue to do so. What the bill does is to say what the law always has said until the Labor Board, in the exercise of what it modestly calls its 'expertness,' changed the law: That no one, whether employer or employee, need have as his agent one who is obligated to those on the other side, or one whom, for any reason, he does not trust.' Id., at 17 (emphasis in original).
10
The same theme—that unionizing supervisors threatened realization of the basic objectives of the Act to increase the output of goods in commerce by promoting labor peace—is repeated in the Senate Report. The Report refers to the NLRB rulings that included supervisors as protected employees as
11
'(a) recent development which probably more than any other single factor has upset any real balance of power in the collective-bargaining process . . ..
12
The folly of permitting a continuation of this policy is dramatically illustrated by what has happened in the captive mines of the Jones & Laughlin Steel Corp. since supervisory employees were organized by the United Mine Workers under the protection of the act. Disciplinary slips issued by the underground supervisors in these mines have fallen off by two-thirds and the accident rate in each mine has doubled.' S.Rep.No.105, 80th Cong., 1st Sess. 3, 4 (1947).
13
This history compels the conclusion that Congress' dominant purpose in amending §§ 2(3) and 2(11), and enacting § 14(a) was to redress a perceived imbalance in labor-management relationships that was found to arise from putting supervisors in the position of serving two masters with opposed interests. See generally NLRB v. Bell Aerospace Co., 416 U.S. 267, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974). We conclude, therefore, that the second clause of § 14(a) relieving the employer of obligations under 'any law, either national or local, relating to collective bargaining' applies to any law that requires an employer 'to accord to the front line of management the anomalous status of employees.' S.Rep.No.105, supra, at 5. Enforcement against respondents in this case of §§ 95—81 and 95—83 would plainly put pressure on respondents 'to accord to the front line of management the anomalous status of employees,' and would therefore flout the national policy against compulsion upon employers from either federal or state agencies to treat supervisors as employees. Cf. Local 20 Teamsters, Chauffeurs and Helpers Union v. Morton, 377 U.S. 252, 258—260, 84 S.Ct. 1253, 1257—1258, 12 L.Ed.2d 280 (1964).7
14
Affirmed.
1
Labor Management Relations Act, 1947, c. 120, 61 Stat. 136. The three amendments relevant to this case provide:
§ 2(3). 'The term 'employee' shall include any employee, and shall not be limited to the employees of a particular employer, unless the Act explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act, as amended from time to time, or by any other person who is not an employer as herein defined.' 61 Stat. 137, 29 U.S.C. § 152(3).
§ 2(11). 'The term 'supervisor' means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.' 61 Stat. 138, 29 U.S.C. § 152(11).
§ 14(a). 'Nothing herein shall prohibit any individual employed as a supervisor from becoming or remaining a member of a labor organization, but no employer subject to this Act shall be compelled to deem individuals defined herein as supervisors as employees for the purpose of any law, either national or local, relating to collective bargaining.' 61 Stat. 151, 29 U.S.C. § 164(a).
2
Those sections provide:
§ 95—81. Nonmembership as condition of employment prohibited.—No person shall be required by an employer to abstain or refrain from membership in any labor union or labor organization as a condition of employment or continuation of employment.' N.C.Gen.Stat. § 95—81 (1965).
§ 95—83. Recovery of damages by persons denied employment. Any person who may be denied employment or be deprived of continuation of his employment in violation of §§ 95—80, 95—81 and 95—82 or of one or more of such sections, shall be entitled to recover from such employer and from any other person, firm, corporation, or association acting in concert with him by appropriate action in the courts of this State such damages as he may have sustained by reason of such denial or deprivation of employment.' N.C.Gen.Stat. § 95—83 (1965).
3
The position of the General Counsel was unequivocally set forth in the letter of denial, quoted by the North Carolina Court of Appeals: 'Your appeal in the above matter has been duly considered. The appeal is denied. The four alleged discriminatees involved herein were supervisors within the meaning of Section 2(11) of the Act and hence were not entitled, in the circumstances herein, to the protection of the Act.' 15 N.C.App. 323, 325, 190 S.E.2d 333, 334 (1972).
4
The Board initially held that supervisors may organize in independent or affiliated unions, Union Collieries Coal Co., 41 N.L.R.B. 961 (1942); Godchaux Sugars, Inc., 44 N.L.R.B. 874 (1942). Then, following introduction of proposed corrective legislation, see H.R.Rep.No.245, 80th Cong., 1st Sess., 13 (1947), the Board announced that it would not find any organization of supervisors an appropriate bargaining unit, Maryland Drydock Co., 49 N.L.R.B. 733 (1943). Finally, in Packard Motor Co., 61 N.L.R.B. 4 (1945), the Board reverted to its initial position.
5
Although H.R. 3020 lacked a counterpart to § 14(a) in S. 1126, it contained a more detailed, and expansive, definition of 'supervisor,' including individuals with 'hire-and-fire' authority, those who worked in 'labor relations, personnel, employment, police, or time-study matters . . . or who (are) employed to act in other respects for the employer in dealing with other individuals employed by the employer,' and those with access to information 'of a confidential nature.' § 101, amending § 2(12) of NLRA, H.R. 3020, 80th Cong., 1st Sess. (1947).
Aside from the use of the Senate's proposals for §§ 2(3), 2(11), and 14(a) in the final amendments, the only pertinent congressional action during passage was the addition of the words 'or responsibility to direct them' to § 2(11) on the floor of the Senate. 93 Cong.Rec. 4677—4678 (1947).
6
The legislative history is determinative of any contention that a different rule should be applied for unions composed entirely of supervisors, on the one hand, and for unions of the rank and file as well as supervisors, on the other. The House Report emphatically stated:
'If management is to be free to manage American industry as in the past and to produce the goods on which depends our strength in war and our standard of living always, then Congress must exclude foremen from the operation of the Labor Act, not only when they organize into unions of the rank and file and into unions affiliated with those of the rank and file, but also when they organize into unions that claim to be independent of the unions of the rank and file.' H.R.Rep.No.245, 80th Cong., 1st Sess., 15 (1947) (emphasis in original.)
The Senate Report displays equally careful consideration and firm rejection of such a distinction:
'Before formulating this definition (in § 2(11)), the committee considered a proposal, occasionally advanced, which would have limited the protection of foremen to joining or organizing unions whose membership was confined to supervisory personnel and not affiliated with either of the major labor federations. After considerable discussion, the committee decided that any such compromise would be completely unrealistic. There is nothing in the record developed before this committee to justify the conclusion that there is such a thing as a really independent foremen's organization.' S.Rep.No.105, 80th Cong., 1st Sess., 4 (1947).
7
Petitioners also argue that § 14(b) supports their contention. That section provides that '(n)othing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.' The section obviously has no relevancy to the provisions of §§ 95—81 and 95—83. It is relevant primarily to § 95—79, which declares illegal certain agreements making union membership a condition of employment. See Retail Clerks v. Schermerhorn, 373 U.S. 746, 83 S.Ct. 1461, 10 L.Ed.2d 678 and 375 U.S. 96, 84 S.Ct. 219, 11 L.Ed.2d 179 (1963); Algoma Plywood Co. v. Wisconsin Board, 336 U.S. 301, 69 S.Ct. 584, 93 L.Ed. 691 (1949).
| 910
|
416 U.S. 725
94 S.Ct. 2038
40 L.Ed.2d 496
BOB JONES UNIVERSITY, Petitioner,v.William E. SIMON, Secretary of Treasury, et al.
No. 72—1470.
Argued Jan. 7, 1974.
Decided May 15, 1974.
Syllabus
Petitioner, a private university, was notified by the Internal Revenue Service (IRS), pursuant to a newly announced policy of denying tax-exempt status for private schools with racially discriminatory admissions policies, that it was going to revoke a ruling letter declaring that petitioner qualified for tax-exempt status under § 501(c)(3) of the Internal Revenue Code of 1954 (Code). Petitioner sued for injunctive relief to prevent revocation, alleging irreparable injury in the form of income tax liability and loss of contributions and claiming that the revocation would violate petitioner's rights to free exercise of religion, to free association, and to due process and equal protection of the laws. The District Court granted relief despite § 7421(a) of the Code, which provides that 'no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.' The Court of Appeals reversed, holding that § 7421(a), as construed in Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292, foreclosed relief. Under that decision a pre-enforcement injunction against tax assessment or collection may be granted only if (1) 'it is clear that under no circumstances could the Government ultimately prevail . . .' and (2) 'if equity jurisdiction otherwise exists.' Held:
1. The suit is one 'for the purpose of restraining the assessment or collection of any tax' within the meaning of § 7421(a). Pp. 738—742.
(a) Petitioner's allegation that revocation of the ruling letter would subject it to 'substantial' income tax liability demonstrates that a primary purpose of the suit is to prevent the IRS from assessing and collecting income taxes; but even if no income tax liability resulted, the suit would still be one to restrain the assessment and collection of federal social security and unemployment taxes, as well as to restrain the collection of taxes from petitioner's donors. Pp. 738—739.
(b) Petitioner has not shown that the contemplated revocation of its ruling letter is not based on the IRS's good-faith effort to enforce the technical requirements of the Code. Pp. 739—741.
2. Petitioner's contention that § 7421(a) is subject to judicially created exceptions other than the Williams Packing test is without merit. That decision constitutes an all-encompassing reading of § 7421(a), and it rejected the contention, relied upon by petitioner, that irreparable injury alone is sufficient to lift the statutory bar. Pp. 742—746.
3. Denying injunctive relief to petitioner under the standards of Williams Packing, supra, will not, because of alleged irreparable injury pending resort to alternative remedies, deny petitioner due process of law, since this is not a case where an aggrieved party has no access at all to judicial review. The review procedures that are available are constitutionally adequate, even though involving serious delay. Pp. 746—748.
4. Petitioner has not met the standards of Williams Packing, supra, since its contentions are sufficiently debatable to foreclose any notion that 'under no circumstances could the Government ultimately prevail.' Pp. 748—750.
472 F.2d 903 and 476 F.2d 259, affirmed.
J. D. Todd, Jr., Greenville, S.C., for petitioner.
Scott P. Crampton, Washington, D.C., for respondents.
Mr. Justice POWELL delivered the opinion of the Court.
1
This case and Alexander v. 'Americans United' Inc., 416 U.S. 752, 94 S.Ct. 2053, 40 L.Ed.2d 518, involve the application of the Anti-Injunction Act, § 7421(a) of the Internal Revenue Code of 1954 (the Code), 26 U.S.C. § 7421(a), to the ruling-letter program of the Internal Revenue Service (the Service) for organizations claiming tax-exempt status under Code § 501(c)(3), 26 U.S.C. § 501(c)(3). The question presented is whether, prior to the assessment and collection of any tax, a court may enjoin the Service from revoking a ruling letter declaring that petitioner qualifies for tax-exempt status and from withdrawing advance assurance to donors that contributions to petitioner will constitute charitable deductions under Code § 170(c)(2), 26 U.S.C. § 170(c) (2). We hold that it may not.
2
* Section 501(a) of the Code exempts from federal income taxes organizations described in § 501(c)(3). The latter provision encompasses:
3
'Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation, and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of any candidate for public office.'
4
Section 501(c)(3) organizations are also exempt from federal social security (FICA) taxes by virtue of Code § 3121(b)(8)(B), 26 U.S.C. § 3121(b)(8)(B), and from federal unemployment (FUTA) taxes by virtue of § 3306(c)(8), 26 U.S.C. § 3306(c)(8). Donations to § 501(c)(3) organizations are tax deductible under § 170(c)(2).1
5
As a practical matter, an organization hoping to solicit tax-deductible contributions may not rely solely on technical compliance with the language of §§ 501(c)(3) and 170(c)(2). The organization must also obtain a ruling letter from the Service, pursuant to Rev.Procs. 72—3 and 72—4, 1972—1 Cum.Bull. 698, 706, declaring that it qualifies under § 501(c)(3). Receipt of such a ruling letter leads, in the ordinary case, to inclusion in the Service's periodically undated Publication No. 78, 'Cumulative List of Organizations described in Section 170(c) of the Internal Revenue Code of 1954' (the Cumulative List). In essence, the Cumulative List is the Service's official roster of tax-exempt organizations: 'The listing of an organization in (the Cumulative List) signifies it has received a ruling or determination letter . . . stating that contributions by donors to the organization are deductible as provided in section 170 of the Code.' Rev.Proc. 72 39, 1972—2 Cum.Bull. 818. An organization's inclusion in the Cumulative List assures potential donors in advance that contributions to the organization will qualify as charitable deductions under § 170(c)(2).
6
The Service has announced that, with narrowly limited exceptions, a donor may rely on the Cumulative List for so long as the beneficiaries of his largesse maintain their listing, regardless of their actual tax status.2 For this reason, appearance on the Cumulative List is a prerequisite to successful fund raising for most charitable organizations. Many contributors simply will not make donations to an organization that does not appear on the Cumulative List.3
7
Because of the importance of inclusion in the Cumulative List, revocation of a § 501(c)(3) ruling letter and consequent removal from the Cumulative List is likely to result in serious damage to a charitable organization.4 Revocation not only threatens the flow of contributions, it also subjects the affected organization to FICA and FUTA taxes and, assuming that the organization has taxable income and does not qualify as tax exempt under another subsection of § 501, to federal incoem taxes.5 Upon the assessment and attempted collection of income taxes, the organization may litigate the legality of the Service's action by petitioning the Tax Court to review a notice of deficiency. See Code §§ 6212 and 6213, 26 U.S.C. §§ 6212 and 6213. Or, following the collection of any federal tax and the denial of a refund by the Service, the organization may bring a refund suit in a federal district court or in the Court of Claims. See Code § 7422, 26 U.S.C. § 7422; 28 U.S.C. §§ 1346(a)(1) and 1491. Finally, a donor to the organization may bring a refund suit to challenge the denial of a charitable deduction under § 170(c) (2). Presumably such a 'friendly donor' would be able to attack the legality of the Service's revocation of an organization's § 501(c)(3) status. But these postrevocation avenues of review take substantial time, during which the organization is certain to lose contributions from those donors whose gifts are contingent on entitlement to charitable deductions under § 170(c)(2). Accordingly, any organization threatened with revocation of a § 501(c)(3) ruling letter has a powerful incentive to bring a pre-enforcement suit to prevent the Service from taking action in the first instance.
8
The pressures operating on organizations facing revocation of § 501(c)(3) status to seek injunctive relief against the Service pending judicial review of the proposed action conflict directly with a congressional prohibition of such pre-enforcement tax suits. In force continuously since its enactment in 1867, the Anti-Injunction Act, now Code § 7421(a), provides in pertinent part that 'no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court . . ..'6 Because an injunction preventing the Service from withdrawing a § 501(c)(3) ruling letter would necessarily preclude the collection of FICA, FUTA, and possibly income taxes from the affected organization, as well as the denial of § 170(c)(2) charitable deductions to donors to the organization, a suit seeking such relief falls squarely within the literal scope of the Act.7
9
The clash between the language of the Anti-Injunction Act and the desire of § 501(c)(3) organizations to block the Service from withdrawing a ruling letter has been resolved against the organizations in most cases. E.g., Crenshaw County Private School Foundation v. Connally, 474 F.2d 1185 (CA5 1973), pet. for cert. pending in No. 73—170; National Council on the Facts of Overpopulation v. Caplin, 224 F.Supp. 313 (DC 1963); Israelite House of David v. Holden, 14 F.2d 701 (WD Mich. 1926).8 But see McGlotten v. Connally, 338 F.Supp. 448 (DC 1972) (three-judge court). Cf. Green v. Connally, 330 F.Supp. 1150 (DC), aff'd per curiam sub nom. Coit v. Green, 404 U.S. 997, 92 S.Ct. 564, 30 L.Ed.2d 550 (1971).
10
In the prsent case, the Court of Appeals for the Fourth Circuit followed the majority view. Bob Jones University v. Connally, 472 F.2d 903, petition for rehearing denied, 476 F.2d 259 (1973). In light of the contrary result reached by the Court of Appeals for the District of Columbia Circuit in 'Americans United' Inc. v. Walters, 155 U.S.App.D.C. 284, 477 F.2d 1169 (1973), rev'd sub nom. Alexander v. 'Americans United' Inc., supra, 416 U.S. 752, 94 S.Ct. 2053, 40 L.Ed.2d 518, we granted Bob Jones University's petition for certiorari, 414 U.S. 817, 94 S.Ct. 116, 38 L.Ed.2d 49 (1973).
II
11
Petitioner refers to itself as 'the world's most unusual university.' Founded in 1927 and now located in Greenville, South Carolina, the University is devoted to the teaching and propagation of its fundamentalist religious beliefs. All classes commence and close with prayer, and courses in religion are compulsory. Students and faculty are screened for adherence to certain religious precepts and may be expelled or dismissed for lack of allegiance to them. One of these beliefs is that God intended segregation of the races and that the Scriptures forbid interracial marriage. Accordingly, petitioner refuses to admit Negroes as students. On pain of expulsion students are prohibited from interracial dating, and petitioner believes that it would be impossible to enforce this prohibition absent the exclusion of Negroes.
12
In 1942, the Service issued petitioner a ruling letter under § 101(6) of the Internal Revenue Code of 1939, the predecessor of § 501(c)(3). In 1970, however, the Service announced that it would not longer allow § 501(c)(3) status for private schools maintaining racially discriminatory admissions policies and that it would no longer treat contributions to such schools as tax deductible. See Rev.Rul. 71—447, 1971—2, Cum.Bull. 230. The Service requested proof of a nondiscriminatory admissions policy from all such schools and warned that tax-exempt ruling letters would be reviewed in light of the information provided. At the end of 1970, petitioner advised the Service that it did not admit Negroes, and in September 1971, further stated that it had no intention of altering this policy. The Commissioner of Internal Revenue therefore instructed the District Director to commence administrative procedures leading to the revocation of petitioner's § 501(c)(3) ruling letter.
13
Petitioner brought these administrative proceedings to a halt by filing suit in the United States District Court for the District of South Carolina for preliminary and permanent injunctive relief preventing the Service from revoking or threatening to revoke petitioner's tax-exempt status. Petitioner alleged irreparable injury in the form of substantial federal income tax liability and the loss of contributions. Petitioner asserted that the Service's threatened action was outside its lawful authority and would violate petitioner's rights to the free exercise of religion, to free association, and to due process and equal protection of the laws.
14
The District Court rejected a motion to dismiss for lack of jurisdiction, and it preliminarily enjoined the Service from revoking or threatening to revoke petitioner's tax-exempt status and from withdrawing advance assurance of the deductibility of contributions made to petitioner. Bob Jones University v. Connally, 341 F.Supp. 277 (1971). The Court of Appeals for the Fourth Circuit reversed, with one judge dissenting. 472 F.2d 903, reh. den., 476 F.2d 259 (1973). That court held that petitioner's suit was barred by the Anti-Injunction Act as interpreted by this Court in Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962).
III
15
The Anti-Injunction Act apparently has no recorded legislative history,9 but its language could scarcely be more explicit—'no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court . . .' The Court has interpreted the principal purpose of this language to be the protection of the Government's need to assess and collect taxes as expeditiously as possible with a minimum of preenforcement judicial interference, 'and to require that the legal right to the disputed sums be determined in a suit for refund.' Enochs v. Williams Packing & Navigation Co., supra, at 7, 82 S.Ct., at 1129. See also, e.g., State Railroad Tax Cases, 92 U.S. 575, 613—614, 23 L.Ed. 663 (1876). Cf. Cheatham v. United States, 92 U.S. 85, 88—89, 23 L.Ed. 561 (1876). The Court has also identified 'a collateral objective of the Act protection of the collector from litigation pending a suit for refund.' Williams Packing, supra, 370 U.S., at 7—8, 82 S.Ct. at 1129.
16
In furtherance of these goals, the Court in its most recent reading gave the Act almost literal effect. In Williams Packing, an employer sought to enjoin the collection of FICA and FUTA taxes that the employer alleged were not owed and would destroy its business. The Court held unanimously that the suit was barred by the Act. Only upon proof of the presence of two factors could the literal terms of § 7421(a) be avoided: first, irreparable injury, the essential prerequisite for injunctive relief in any case; and second, certainty of success on the merits. Id., at 6—7, 82 S.Ct. at 1128—1129. An injunction could issue only 'if it is clear that under no circumstances could the Government ultimately prevail . . ..' Id., at 7, 82 S.Ct. at 1129. And this determination would be made on the basis of the information available to the Government at the time of the suit. 'Only if it is then apparent that, under the most liberal view of the law and the facts, the United States cannot establish its claim, may the suit for an injunction be maintained.' Ibid.
17
Perhaps in recognition of the stringent nature of the Williams Packing standard and its implications for this case, petitioner makes little effort to argue that it can meet that test. Rather, it asserts that the Anti-Injunction Act, properly construed, is not applicable, that Williams Packing is not the controlling reading of the Act, and that rejection of both these contentions would work a denial of due process of law. We find these arguments unpersuasive.
18
* First, petitioner contends that the Act is inapplicable because this is not a suit 'for the purpose of restraining the assessment or collection of any tax . . ..' Under petitioner's theory, its suit is intended solely to compel the Service to refrain from withdrawing petitioner's § 501(c)(3) ruling letter and from depriving petitioner's donors of advance assurance of deductibility. Petitioner describes its goal as the maintenance of the flow of contributions, not the obstruction of revenue.
19
Petitioner's complaint and supporting documents filed in the District Court belie any notion that this is not a suit to enjoin the assessment or collection of federal taxes from petitioner. In support of its claim of irreparable injury, petitioenr alleged in part that it would be subject to 'substantial' federal income tax liability if the Service were allowed to carry out its threatened action. App. 6. Petitioner buttressed this contention with sworn affidavits alleging federal income tax liability of three-quarters of a million dollars for one year and in excess of half a million dollars for another and stressing the detrimental effect such tax liability would have on petitioner's capacity to operate its institution, to support its personnel, and to continue with its expansion plans. Id., at 10—11, 43—44. These allegations leave little doubt that a primary purpose of this lawsuit is to prevent the Service from assessing and collecting income taxes from petitioner.
20
We recognize that petitioner's assertions that it will owe federal income taxes should its § 501(c)(3) status be revoked are open to debate, because they are based in part on a failure to take into account possible deductions for depreciation of plant and equipment. Even if it could be shown, however, that petitioner would owe no federal income taxes if its § 501(c)(3) status were revoked, this would still be a suit to restrain the assessment or collection of taxes because petitioner would also be liable for FICA and FUTA taxes. Section 7421(a) speaks of 'any tax'; it does not differentiate between federal income taxes or FICA or FUTA taxes. See, e.g., Williams Packing, supra. Moreover, petitioner seeks to restrain the collection of taxes from its donors—to force the Service to continue to provide advance assurance to those donors that contributions to petitioner will be recognized as tax deductible, thereby reducing their tax liability. Although in this regard petitioner seeks to lower the taxes of those other than itself, the Act is nonetheless controlling.10 Thus in any of its implications, this case falls within the literal scope and the purposes of the Act.
21
Petitioner further contends that the Service's actions do not represent an effort to protect the revenues but an attempt to regulate the admissions policies of private universities. Under this line of argument, the AntiInjunction Act is said to be inapplicable because the case does not truly involve taxes. We disagree.
22
The Service bases its present position with regard to the tax status of segregative private schools on its interpretation of the Code.11 There is no evidence that that position does not represent a good-faith effort to enforce the technical requirements of the tax laws, and, without indicating a view as to whether the Service's interpretation is correct, we cannot say that its position has no legal basis or is unrelated to the protection of the revenues. The Act is therefore applicable. Petitioner's attribution of non-tax-related motives to the Service ignores the fact that petitioner has not shown that the Service's action is without an independent basis in the requirements of the Code. Moreover, petitioner's argument fails to give appropriate weight to Bailey v. George, 259 U.S. 16, 42 S.Ct. 419, 66 L.Ed. 816 (1922). In that case, the Court held that the Act blocked a pre-enforcement suit to enjoin collection of the federal Child Labor Tax, although the tax was challenged as a regulatory measure beyond the taxing power of Congress. Singificantly, the Court announced Bailey v. George on the same day that it issued Bailey v. Drexel Furniture Co., 259 U.S. 20, 42 S.Ct. 449, 66 L.Ed. 817 (1922), a tax-refund case in which the Court struck down the Child Labor Tax Law as unconstitutional on the grounds that the taxpayer attempted to raise prematurely in Bailey v. George.12
23
Petitioner also argues that § 7421(a) is not controlling because when the Act was passed in 1867 Congress could not possibly have foreseen something as sophisticated as the comparatively recent ruling-letter program13 and the special importance of that program for § 501(c)(3) organizations. This argument proves too much, however, since the same Congress also could not have foreseen, for example, F.I.C. not have foreseen, for example FICA or FUTA taxes, to which the prohibitory command of § 7421(a) indisputably applies. See, e.g., Williams Packing, supra. Moreover, through the years Congress has repeatedly re-enacted the Anti-Injunction Act14 at times when it was obviously aware of the continuously increasing complexity of the federal tax system.15
B
24
Petitioner next argues that Enochs v. Williams Packing & Navigation Co., supra, does not constitute an all-encompassing reading of the Act. Petitioner contends, on the basis of prior precedents, that § 7421(a) is subject to judicially created exceptions other than the 'under no circumstances' test announced in Williams Packing. But the Court's unanimous opinion in Williams Packing indicates that the case was meant to be the capstone to judicial construction of the Act. It spells an end to a cyclical pattern of allegiance to the plain meaning of the Act, followed by periods of uncertainty caused by a judicial departure from that meaning, and followed in turn by the Court's rediscovery of the Act's purpose.
25
During the first half century of the Act's existence, the Court gave it literal force, without regard to the character of the tax, the nature of the pre-enforcement challenge to it, or the status of the plaintiff. See State Railroad Tax Cases, 92 U.S., at 613—614, 23 L.Ed. 663; Snyder v. Marks, 109 U.S. 189, 3 S.Ct. 157, 27 L.Ed. 901 (1883); Pacific Steam Whaling Co. v. United States, 187 U.S. 447, 23 S.Ct. 154, 47 L.Ed. 253 (1903); Dodge v. Osborn, 240 U.S. 118, 36 S.Ct. 275, 60 L.Ed. 557 (1916); Bailey v. George, 259 U.S. 16, 42 S.Ct. 419, 66 L.Ed. 816 (1922).16 Occasionally, however, the Court noted in dictum that unspecified extraordinary and exceptional circumstances might justify an injunction despite the Act. E.g., Dodge v. Osborn, supra, 240 U.S., at 122, 36 S.Ct. at 276; Bailey v. George, supra, 259 U.S., at 20, 42 S.Ct. at 419. In 1922, the Court seized upon these dicta and permitted pre-enforcement injunctive suits against tax statutes that were viewed as penalties or as adjuncts to the criminal law. Hill v. Wallace, 259 U.S. 44, 42 S.Ct. 453, 66 L.Ed. 822 (1922); Lipke v. Lederer, 259 U.S. 557, 42 S.Ct. 549, 66 L.Ed. 1061 (1922); Regal Drug Corp. v. Wardell, 260 U.S. 386, 43 S.Ct. 152, 67 L.Ed. 318 (1922). Shortly thereafter, however, the Court made clear that Hill, Lipke, and Regal Drug were of narrow scope and had no application to pre-enforcement challenges to truly revenueraising tax statutes. Graham v. Du Pont, 262 U.S. 234, 43 S.Ct. 567, 67 L.Ed. 965 (1923).17 Thus, the Court's first departure from a literal reading of the Act produced a prompt correction in course.
26
In the 1930's the Court decided Miller v. Standard Nut Margarine Co., 284 U.S. 498, 52 S.Ct. 260, 76 L.Ed. 422 (1932), and Allen v. Regents of the University System of Georgia, 304 U.S. 439, 58 S.Ct. 980, 82 L.Ed. 1448 (1938), the cases relied on most heavily by petitioner. Standard Nut set forth a new definition of the extraordinary and exceptional circumstances test, which was followed in Regents. In Standard Nut the Court stated that the Act is merely 'declaratory of the principle' of cases prior to its passage that equity usually, but not always, disavows interference with tax collection; thus, the Act was to be construed 'as near as may be in harmony with (equity doctrine) and the reasons upon which it rests.' 284 U.S., at 509, 52 S.Ct. at 263. Through this interpretation, the concept of extraordinary and exceptional circumstances was reduced to the traditional equitable requirements for issuance of an injunction.
27
Standard Nut was such a significant deviation from precedent that it was referred to by a commentator at the time as 'a tribute to the tenacity of the American taxpayer' and 'little short of phenomenal.'18 Read literally, the Court's opinion effectively repealed the Act, since the Act was viewed as requiring nothing more than equity doctrine had demanded before the Act's passage. The incongruity of this position has not escaped notice.19 It undoubtedly led directly to the Court's reexamination of the requirements of the Act in Williams Packing, the second time the Court has undertaken to rehabilitate the Act following debilitating departures from its explicit language. See Graham v. Du Pont, supra.
28
Williams Packing switched the focus of the extraordinary and exceptional circumstances test from a showing of the degree of harm to the plaintiff absent an injunction to the requirement that it be established that the Service's action is plainly without a legal basis. The Court in essence read Standard Nut not as an instance of irreparable injury but as a case where the Service had no chance of success on the merits. 370 U.S., at 7, 82 S.Ct. at 1129. And the Court explicitly held that the Act may not be evaded 'merely because collection would cause an irreparable injury, such as the ruination of the taxpayer's enterprise.' Id., at 6, 82 S.Ct. at 1129. Yet petitioner's argument that we should find Williams Packing inapplicable turns, in the last analysis, on its claim that to do otherwise would subject it to great harm. The Court rejected that consideration in Williams Packing itself, and we reject it as a reason for finding that case not controlling. Under the language of the Act, the degree of harm is not a factor, and as a matter of judicial construction, it does not provide a meaningful stopping point between Standard Nut and Williams Packing. Acceptance of petitioner's irreparable injury argument would simply revive the evisceration of the Act inherent in Standard Nut.
C
29
Assuming, arguendo, the applicability of § 7421(a) and Williams Packing, petitioner contends that forcing it to meet the standards of those authorities will deny it due process of law in light of the irreparable injury it will suffer pending resort to alternative procedures for review and of the alleged inadequacies of those remedies at law. The Court dismissed out of hand similar contentions nearly 60 years ago,20 and we find such arguments no more compelling now than then.
30
This is not a case in which an aggrieved party has no access at all to judicial review. Were that true, our conclusion might well be different. If, as alleged in its complaint, petitioner will have taxable income upon the withdrawal of its § 501(c)(3) status, it may in accordance with prescribed procedures petition the Tax Court to review the assessment of income taxes. Alternatively, petitioner may pay income taxes, or, in their absence, an installment of FICA or FUTA taxes, exhaust the Service's internal refund procedures, and then bring suit for a refund. These review procedures offer petitioner a full, albeit delayed, opportunity to litigate the legality of the Service's revocation of tax-exempt status and withdrawal of advance assurance of deductibility. See, e.g., Christian Echoes National Ministry, Inc. v. United States, 470 F.2d 849 (CA10 1972), cert. denied, 414 U.S. 864, 94 S.Ct. 41, 38 L.Ed.2d 84 (1973); Center on Corporate Responsibility, Inc. v. Shultz, 368 F.Supp. 863 (DC 1973).21
31
We do not say that these avenues of review are the best that can be devised. They present serious problems of delay, during which the flow of donations to an organization will be impaired and in some cases perhaps even terminated. But, as the Service notes, some delay may be an inevitable consequence of the fact that disputes between the Service and a party challenging the Service's actions are not susceptible of instant resolution through litigation. And although the congressional restriction to postenforcement review may place an organization claiming tax-exempt status in a precarious financial position, the problems presented do not rise to the level of constitutional infirmities, in light of the powerful governmental interests in protecting the administration of the tax system from premature judicial interference, e.g., Cheatham v. United States, 92 U.S., at 88—89, 23 L.Ed. 561; State Railroad Tax Cases, 92 U.S., at 613—614, 23 L.Ed. 663, and of the opportunities for review that are available.22
IV
32
Since we hold that Williams Packing, supra, governs this case, the remaining issue is whether petitioner has met the standards of that case. Without deciding the merits, we think that petitioner's First Amendment, due process, and equal protection contentions are sufficiently debatable to foreclose any notion that 'under no circumstances could the Government ultimately prevail . . ..' 370 U.S., at 7, 82 S.Ct., at 1129. See, e.g., Green v. Connally, 330 F.Supp. 1150 (DC), aff'd per curiam sub nom. Coit v. Green, 404 U.S. 997, 92 S.Ct. 564, 30 L.Ed.2d 550 (1971). Accordingly, the Court of Appeals did not err in holding that § 7421(a) deprived the District Court of jurisdiction to issue the injunctive relief petitioner sought.
33
In holding that § 7421(a) blocks the present suit, we are not unaware that Congress has imposed an especially harsh regime on § 501(c)(3) organizations threatened with loss of tax-exempt status and with withdrawal of advance assurance of deductibility of contributions. A former Commissioner of the Internal Revenue Service has sharply criticized the system applicable to such organizations.23 The degree of bureaucratic control that, practically speaking, has been placed in the Service over those in petitioner's position is susceptible of abuse, regardless of how conscientiously the Service may attempt to carry out its responsibilities. Specific treatment of not-for-profit organizations to allow them to seek pre-enforcement review may well merit consideration. But this matter is for Congress, which is the appropriate body to weigh the relevant, policy-laden considerations, such as the harshness of the present law, the consequences of an unjustified revocation of § 501(c)(3) status, the number of organizations in any year threatened with such revocation, the comparability of those organizations to others which rely on the Service's ruling-letter program, and the litigation burden on the Service and the effect on the assessment and collection of federal taxes if the law were to be changed.
34
The judgment is affirmed.
35
It is so ordered.
36
Affirmed.
37
Mr. Justice DOUGLAS took no part in the decision of this case.
38
Mr. Justice BLACKMUN, concurring in the result.
39
I concur in the Court's judgment and agree with much of the reasoning in its opinion for this case. As the Court notes, ante, at 738, the University's obtaining an injunction would directly prevent the collection of what it says are $750,000 in income taxes for 1971 and of over $500,000 for 1972. On the basis of this fact alone, the 'purpose' of the suit is indeed to restrain 'the assessment or collection of (a) tax,' and brings 26 U.S.C. § 7421(a) into play.
40
Since the anti-injunction statute is applicable, we must consider whether the University comes within the statute's exception recognized in Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962). As to this, I join Part IV of the Court's opinion to the effect that it has not been shown that 'under no circumstances could the Government ultimately prevail.' Id., at 7, 82 S.Ct. at 1129.
1
Section 170(a) of the Code povides that '(t)here shall be allowed as a deduction any charitable contribution (as defined in subsection (c)) payment of which is made within the taxable year. . . .' Section 170(c)(2) declares:
'Charitable contribution defined.—For purposes of this section, the term 'charitable contribution' means a contribution or gift to or for the use of—
'(2) A corporation, trust, or community chest, fund, or foundation—
'(A) created or organized in the United States or in any possession thereof, or under the law of the United States, any State, the District of Columbia, or any possession of the United States;
'(B) organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes or for the prevention of cruelty to children or animals;
'(C) no part of the net earnings of which inures to the benefit of any private shareholder or individual; and
'(D) no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation, and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of any candidate for public office.' The organizations set forth in § 170(c)(2) are, but for a few unimportant exceptions, the same as those described in § 501(c)(3). Analogous deductions for contributions to § 501(c)(3) organizations are provided for federal estate and gift tax purposes. See Code §§ 2055(a)(2) and 2522(a)(2), 26 U.S.C. §§ 2055(a)(2) and 2522(a)(2).
2
Section 3.01 of Rev.Proc. 72—39, 1972—2 Cum.Bull. 818, provides:
'Where an organization listed in (the Cumulative List) ceases to qualify as an organization contributions to which are deductible under section 170 of the Code and the Service subsequently revokes a ruling or a determination letter previously issued to it, contributions made to the organization by persons unaware of the changes in the status of the organization generally will be considered allowable if made on or before the date of publication of the Internal Revenue Bulletin announcing that contributions are no longer deductible. However, the Service is not precluded from disallowing a deduction for any contribution made after an organization ceases to qualify under section 170, where the contributor (1) had knowledge of the revocation of the ruling or determination letter, (2) was aware that such revocation was imminent, or (3) was in part responsible for, or was aware of, the activities or deficiencies on the part of the organization that gave rise to the loss of qualification.'
3
This is particularly so with respect to tax-exempt private foundations, because they are subject to tax liability if they contribute funds to an organization that does not qualify under § 170(c)(2). See Code § 4945(d)(5), 26 U.S.C. § 4945(d)(5).
4
In recognition of the significance of such a change in status, the Service provides several stages of internal administrative review. If the Service indicates, pursuant to prescribed procedures, that cause for revocation exists, the affected organization is entitled to submit written protests and to have conferences at both the District Director and National Office level. § 11, Rev.Proc. 72—4, 1972—1 Cum.Bull., at 708; § 4, Rev.Proc. 72—39, 1972—2 Cum.Bull., at 818—819.
5
An organization may lose its § 501(c)(3) status but still be exempt from federal income taxes if it qualifies, for example, as a § 501(c)(4) social welfare organization. But the loss of § 501(c)(3) status inevitably means that the exemptions from FICA and FUTA taxes no longer apply, since those exemptions are keyed to § 501(c)(3). See Code §§ 3121(b)(8)(B) and 3306(c)(8).
6
See Act of Mar. 2, 1867, § 10, 14 Stat. 475; Rev.Stat. § 3224 (1874); Int.Rev.Code of 1939, § 3653. Section 7421(a) of the Code states:
'Except as provided in sections 6212(a) and (c), 6213(a), and 7426(a) and (b) (1), no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax were assessed.' (Emphasis added.)
The italicized portion of § 7421(a) is identical to language in § 10 of the Act of Mar. 2, 1867, but for the first 'any,' which the revisers
added to the Revised Statutes version. See Snyder v. Marks, 109 U.S. 189, 192, 3 S.Ct. 157, 159, 27 L.Ed. 901 (1883). None of the exceptions in § 7421(a) is relevant to this case. The phrase commencing with 'by any person . . .' was added by § 110(c) of the Federal Tax Lien Act of 1966, Pub.L. 89—719, 80 Stat. 1144. The main purpose of the addition of this language was to deal with cases where third parties who are not themselves subject to tax liability hold property liens that compete with federal tax liens. Due to the literal meaning of the Anti-Injunction Act, such persons were, prior to 1966, often unable to protect their legitimate property interests when the Service foreclosed on property on which it held a tax lien. See H.R.Rep.No.1884, 89th Cong., 2d Sess., 27—28 (1966). Such persons are now given a right of action under Code § 7426, 26 U.S.C. § 7426, and the language of § 7421(a), as amended, renders that action exclusive. The 'by any person' phrase is, however, also a reaffirmation of the plain meaning of the emphasized portion of § 7421(a). In this respect, it is declaratory, not innovative. Cf. Bittker & Kaufman, Texes and Civil Rights: 'Constitutionalizing' the Internal Revenue Code, 82 Yale L.J. 51, 57, n. 22 (1972). We are aware of the contrary reading of the 'by any person' phrase in McGlotten v. Connally, 338 F.Supp. 448, 453, n. 25 (DC 1972) (three-judge court), but we are of a different view.
7
The congressional antipathy for premature interference with the assessment or collection of any federal tax also extends to declaratory judgments. In 1935, one year after the enactment of the Declaratory Judgment Act, 48 Stat. 955, now 28 U.S.C. §§ 2201, 2202, Congress amended that Act to exclude suits 'with respect to Federal taxes . . .,' § 405 of the Revenue Act of 1935, c. 829, 49 Stat. 1027, thus reaffirming the restrictions set out in the Anti-Injunction Act. The Declaratory Judgment Act now reads:
§ 2201. Creation of Remedy.
'In a case of actual controversy within its jurisdiction, except with respect to Federal taxes, any court of the United States, upon
the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.' (Emphasis added.)
§ 2202. Further relief.
'Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment.'
Some have noted that the federal tax exception to the Declaratory Judgment Act may be more sweeping than the Anti-Injunction Act. E.g., E. Borchard, Declaratory Judgments 855 (2d ed. 1941); Bittker & Kaufman, supra, n. 6, at 58. See S.Rep.No.1240, 74th Cong., 1st Sess., 11 (1935). The Service takes that position in this case, arguing that any suit for an injunction is also an action for a declaratory judgment and thus is barred by the literal terms of the Declaratory Judgment Act, without regard to the independent force of § 7421(a). A number of courts, on the other hand, have held that the federal tax exception to the Declaratory Judgment Act and the Anti-Injunction Act have coterminous application. E.g., 'Americans United' Inc. v. Walters, 155 U.S.App.D.C. 284, 291, 477 F.2d 1169, 1176 (1973), rev'd sub nom. Alexander v. 'Americans United' Inc., 416 U.S. 752, 94 S.Ct. 2053, 40 L.Ed.2d 518; Tomlinson v. Smith, 128 F.2d 808 (CA7 1942); McGlotten v. Connally, supra; Jules Hairstylists of Maryland, Inc. v. United States, 268 F.Supp. 511 (Md.1967), aff'd, 389 F.2d 389 (CA4), cert. denied, 391 U.S. 934, 88 S.Ct. 1847, 20 L.Ed.2d 854 (1968). Petitioner cites these cases in response to the Service's reliance on the Declaratory Judgment Act. There is no dispute, however, that the federal tax exception to the Declaratory Judgment Act is at least as broad as the Anti-Injunction Act. Because we hold that the instant case is barred by the latter provision, there is no occasion to resolve whether the former is even more preclusive. Nor need we decide whether any action for an injunction is of necessity a request for a declaration of rights that trigers the terms of the Declaratory Judgment Act.
8
Several courts have reached the same result under the federal tax exception to the Declaratory Judgment Act, set forth in n. 7, supra. E.g., Liberty Amendment Committee of the U.S.A. v. United States, Civil Action No. 70—721 (CD Cal. June 19, 1970) (unpublished), aff'd per curiam, No. 26507 (CA9 July 7, 1972) (unpublished), cert. denied, 409 U.S. 1076, 93 S.Ct. 684, 34 L.Ed.2d 664 (1972); Mitchell v. Riddell, 402 F.2d 842 (CA9 1968), appeal dismissed and cert. denied, 394 U.S. 456, 89 S.Ct. 1223, 22 L.Ed.2d 415 (1969); Jolles Foundation, Inc. v. Moysey, 250 F.2d 166 (CA2 1957); Kyron Foundation v. Dunlap, 110 F.Supp. 428 (DC 1952).
9
See Note, Enjoining the Assessment and Collection of Federal Taxes Despite Statutory Prohibition, 49 Harv.L.Rev. 109 n. 9 (1935); Gorovitz, Federal Tax Injunctions and the Standard Nut Cases, 10 Taxes 446 n. 6 (1932).
10
See n. 6, supra. Petitioner argues that the revenues will be unaffected by the loss of its § 501(c)(3) status, since if petitioner loses its ruling letter, donors will simply redirect their gifts to organizations whose tax-exempt status is secure, thus obtaining the same § 170(c)(2) charitable deductions they presently enjoy when they make contributions to petitioner. It follows, according to petitioner, that the Act's principal purpose of protecting the revenues is not threatened by an injunction preserving petitioner's § 501(c)(3) status. Thus, the Act should be found inapplicable.
The argument is too speculative to be persuasive. It presumes that all donors who take § 170(c)(2) deductions will desert petitioner if the ruling letter is withdrawn and that all such donors will make gifts in equivalent amounts to other tax-exempt organizations. We deem it unlikely that either premise is wholly true. To the extent that either premise is inaccurate, an injunction preserving petitioner's § 501(c)(3) ruling letter will interrupt the assessment and collection of taxes.
11
See Rev.Rule 71—447, 1971—2 Cum.Bull. 230. The question of whether a segregative private school qualifies under § 501(c)(3) has not received plenary review in this Court, and we do not reach that question today. Such schools have been held not to qualify under § 501(c)(3) in Green v. Connally, 330 F.Supp. 1150 (DC) (three-judge court), aff'd per curiam sub nom. Coit v. Green, 404 U.S. 997, 92 S.Ct. 564, 30 L.Ed.2d 550 (1971). As a defendant in Green, the Service initially took the position that segregative private schools were entitled to tax-exempt status under § 501(c)(3), but it reversed its position while the case was on appeal to this Court. Thus, the Court's affirmance in Green lacks the precedential weight of a case involving a truly adversary controversy.
12
In support of its argument that this case does not involve a 'tax' within the meaning of § 7421(a), petitioenr cites such cases as Hill v. Wallace, 259 U.S. 44, 42 S.Ct. 453, 66 L.Ed. 822 (1922) (tax on unregulated sales of commodities futures), and Lipke v. Lederer, 259 U.S. 557, 42 S.Ct. 549, 66 L.Ed. 1061 (1922) (tax on unlawful sales of liquor). It is true that the Court in those cases drew what it saw at the time as distinctions between regulatory and revenue-raising taxes. But the Court has subsequently abandoned such distinctions. E.g., Sonzinsky v. United States, 300 U.S. 506, 513, 57 S.Ct. 554, 555, 81 L.Ed. 772 (1937). Even if such distinctions have merit, it would not assist petitioner, since its challenge is aimed at the imposition of federal income, FICA, and FUTA taxes which clearly are intended to raise revenue.
13
The currently prevailing ruling-letter program of the Service commenced in 1940, see Caplin, Taxpayer Rulings Policy of the Internal Revenue Service: A Statement of Principles, NYU 20th Inst. on Fed. Tax 1, 2, 4—5 (1962), although its formal announcement did not take place until 1953. Rev.Rul. 10, 1953—1 Cum.Bull. 488.
14
The most recent re-enactment, in the Internal Revenue Code of 1954, postudates both the actual and the formal commencement of the Service's ruling-letter program for § 501(c)(3) organizations. See n. 13, supra.
15
In addition to repeatedly re-enacting the Anti-Injunction Act, Congress reaffirmed the Act's purpose by adding the federal tax exception to the Declaratory Judgment Act. See n. 7, supra.
16
The Anti-Injunction Act was written against the background of general equitable principles disfavoring the issuance of federal injunctions against taxes, absent clear proof that available remedies at law were inadequate. E.g., Dows v. City of Chicago, 11 Wall. 108, 109—110, 20 L.Ed. 65 (1871); Shelton v. Platt, 139 U.S. 591, 11 S.Ct. 646, 35 L.Ed. 273 (1891); Pittsburgh & C.R. Co. v. Board of Pub. Works, 172 U.S. 32, 19 S.Ct. 90, 43 L.Ed. 354 (1898). See California v. Latimer, 305 U.S. 255, 261 262, 59 S.Ct. 166, 169—170, 83 L.Ed. 159 (1938) (Brandeis, J., for a unanimous Court):
'(The delay inherent in pursuing remedies at law), it is urged, is a special circumstance which justifies resort to a suit for an injunction in order that the question of liability may be promptly determined. If the delay incident to such proceedings justified refusal to pay a tax, the federal rule that a suit in equity will not lie to restrain collection on the sole ground that the tax is illegal, could have little application. For possible delay of that character is the common incident of practically every contest over the validity of a federal tax.' (Footnote omitted.)
Since equitable principles militating against the issuance of federal injunctions in tax cases existed independently of the Anti-Injunction Act, it is most unlikely that Congress would have chosen the stringent language of the Act if its purpose was merely to restate existing law and not to compel litigants to make use solely of the avenues of review opened by Congress. For this reason, it is not surprising that the early cases interpreting the Act read it at face value.
17
As noted earlier, the Court has also abandoned the view that bright-line distinctions exist between regulatory and revenueraising taxes. See n. 12, supra.
18
Gorovitz, Federal Tax Injunctions and the Standard Nut Cases, 10 Taxes 446 (1932). Mr. Justice Stone, joined in dissent by Mr. Justice Brandeis, underlined the tension between Standard Nut and prior precedent: 'Enacted in 1867, (the Anti-Injunction Act), for more than sixty years, has been consistently applied as precluding relief, whatever the equities alleged.' 284 U.S., at 511, 52 S.Ct., at 264.
19
E.g., Lenoir, Congressional Control Over Suits to Restrain the Assessment or Collection of Federal Taxes, 3 Ariz.L.Rev. 177, 195 (1961).
'In effect (Standard Nut) says that if special circumstances exist which bring the case within some acknowledged head of equity jurisdiction, (the Anti-Injunction Act) does not apply, and the Court may issue an injunction. But in the absence of such circumstances the Court will lack equity jurisdiction because there will be no basis for such jurisdiction. To say that (the Act) applies only in such cases seems a little absurd. It is tantamount to saying that (the Act) forbids the courts to issue injunctions only when they would not have the authority to issue them anyway! It denies any force whatever to (the Act) except as declaratory of an equitable rule previously followed by the courts.'
20
See Dodge v. Osborn, 240 U.S. 118, 122, 36 S.Ct. 275, 276, 60 L.Ed. 557 (1916):
'There is a contention that the provisions requiring an appeal to the Commissioner of Internal Revenue after payment of the taxes, and giving a right to sue in case of his refusal to refund, are wanting in due process, and therefore there is jurisdiction (to issue injunctive relief prior to the assessment or collection of any tax). But we think it suffices to state that contention to demonstrate its entire want of merit.'
21
Because of the availability of FICA and FUTA refund actions, we need not address the adequacy of another possible means of seeking postenforcment judicial review—the 'friendly donor' refund suit. Under this approach, there must be a donor willing to file a refund action claiming a § 170(c)(2) charitable deduction for a contribution to an organization after the Service has revoked the organization's ruling letter and withdrawn advance assurance of deductibility. To utilize this approach, the organization must first be able to find a donor willing to subject himself to the rigors of litigation against the Service and then must rely on the donor to present the relevant arguments on the organization's behalf. These and other possible differences between a donor refund suit and an action brought directly by an organization leave open the question whether a donor's refund suit constitutes an adequate legal remedy for correcting illegal actions on the part of the Service. We reserve this question for a case that turns upon its resolution.
22
Petitioner did not bring this case as a refund action. Accordingly, we have no occasion to decide whether the Service is correct in asserting that a district court may not issue an injunction in such a suit, but is restricted in any tax case to the issuance of money judgments against the United States. Brief for Respondents 37 n. 35. We note, however, that the Service's position with regard to the range of relief available in a refund suit raises several considerations not presented by a pre-enforcement suit for an injunction. For example, it may be possible to conclude that a suit for a refund is not 'for the purpose of restraining the assessment or collection of any tax . . .,' and thus that neither the literal terms nor the principal purpose of § 7421(a) is applicable. Moreover, such a suit obviously does not clash with what the Court referred to in Williams Packing, supra, as a 'collateral objective of the Act protection of the collector from litigation pending a suit for refund.' 370 U.S., at 7—8, 82 S.Ct., at 1129. And there would be serious question about the reasonableness of a system that forced a § 501(c)(3) organization to bring a series of backward-looking refund suits in order to establish repeatedly the legality of its claim to tax-exempt status and that precluded such an organization from obtaining prospective relief even though it utilized an avenue of review mandated by Congress.
The Service indicates that 'its normal practice is to issue a favorable ruling upon the application of an organization which has prevalied in a court suit.' Brief for Respondents 35 n. 31. When the Service adheres to that position following a refund suit decided in favor of the plaintiff, there is of course little likelihood that injunctive relief would be necessary or appropriate. But our decision today that § 7421(a) bars pre-enforcement injunctive suits by organizations claiming § 501(c)(3) status unless the standards of Williams Packing are met should not be interpreted as deciding whether injunctive relief is possible in a refund suit in a district court.
23
See Thrower, IRS Is Considering Far Reaching Changes in Ruling on Exempt Organizations, 34 J. Taxation 168 (1971):
'There is no practical possibility of quick judicial appeal at the present. If we deny tax exemption or the benefit to the organization of its donors having the assurance of deductibility of contributions, the organization must either create net taxable income or other tax liability for itself as a litigable issue, or find a donor who as a guinea pig is willing to make a contribution, have it disallowed, and litigate the disallowance. Assuming the readiness of the organization or donor to litigate, the issue under the best of circumstances could hardly come before a court until at least a year after the tax year in which the issue arises. Ordinarily, it would take much longer for the case of the organization's status to be tried. . . . While all of this time is passing, the organization is dormant for lack of contributions and those otherwise interested in its program lose their interest and move on to other organizations blessed with the Internal Revenue Service imprimatur; and the right to judicial review is not pursued.
'This is an extremely unfortunate situation for several reasons. First, it offends my sense of justice for undue delay to be imposed on one who needs a prompt decision. Second, in practical effect it gives a greater finality to IRS decisions than we would want or Congress intended. Third, it inhibits the growth of a body of case law interpretative of the exempt organization provisions that could guide the IRS in its further deliberations.'
| 1112
|
416 U.S. 752
94 S.Ct. 2053
40 L.Ed.2d 518
Donald C. ALEXANDER, Commissioner of Internal Revenue, Petitioner,v.'AMERICANS UNITED' INC.
No. 72—1371.
Argued Jan. 7, 1974.
Decided May 15, 1974.
Syllabus
Repondent, a nonprofit corporation, had a ruling letter assuring it of tax-exempt status under § 501(c)(3) of the Internal Revenue Code of 1954 (Code). The Internal Revenue Service (IRS) revoked the ruling letter on the ground that respondent had violated the lobbying proscriptions of §§ 501(c)(3) and 170 of the Code, the effect of which was to render it liable for federal unemployment taxes and to terminate its eligibility for tax-deductible contributions. Respondent and two of its benefactors brought this action seeking a declaratory judgment that the IRS' administration of the lobbying provisions of §§ 501(c) (3) and 170 was erroneous or unconstitutional and injunctive relief requiring reinstatement of its § 501(c)(3) tax-exempt status. The District Court dismissed the complaint on the ground, inter alia, that the action was barred by the prohibition in § 7421(a) of the Code against suits 'for the purpose of restraining the assessment or collection of any tax.' The Court of Appeals agreed that the action could not be maintained by the benefactors but held that respondent's suit was not barred on the grounds that respondent raised constitutional allegations; that the primary design of the suit was not to enjoin the assessment or collection of respondent's own taxes; that restraining the assessment or collection of the taxes of respondent's contributors was only a 'collateral effect' of this suit; and that in the absence of injunctive relief respondent would sustain irreparable injury for which there was no adequate legal remedy. The court consequently affirmed the dismissal as to the benefactors but reversed as to respondent. Held: The action is barred by § 7421(a). Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292; Bob Jones University v. Simon, 416 U.S. 725, 94 S.Ct. 2038, 40 L.Ed.2d 496. Pp. 758—763.
(a) The constitutional nature of a taxpayer's claim, as distinct from its probability of success, is of no consequence under § 7421(a). Pp. 759—760.
(b) That respondent was not seeking to enjoin the assessment or collection of its own taxes is irrelevant, for § 7421(a) bars a suit to enjoin the assessment or collection of anyone's taxes. P. 760.
(c) Under any reasonable construction of the statutory term 'purpose,' the objective of this action was to restrain the assessment and collection of taxes from respondent's contributors, the purpose being to restore advance assurance that donations to respondent would qualify as charitable deductions for respondent's donors. Pp. 760—761.
(d) An action for refund of unemployment taxes, even if successful, will not lead to the recovery of contributions lost in the interim between withdrawal of a § 501(c)(3) ruling letter and the final adjudication of entitlement to § 501(c)(3) status. This is, however, merely a form of irreparable injury, which in itself is insufficient to avoid the bar of § 7421(a). Pp. 761—762.
(e) An action for refund of unemployment taxes will afford respondent a full opportunity to litigate the legality of the IRS' withdrawal of its § 501(c)(3) ruling letter, since respondent's liability for such taxes hinges on precisely the same legal issue as does its eligibility for tax-deductible contributions under § 170, i.e., its entitlement to § 501(c)(3) status. P. 762.
155 U.S.App.D.C. 284, 477 F.2d 1169, reversed.
Scott P. Crampton, Washington, D.C., for petitioner.
Alan B. Morrison and Franklin C. Salisbury, Washington, D.C., for respondents.
Mr. Justice POWELL delivered the opinion of the Court.
1
Respondent is a nonprofit, educational corporation organized under the laws of the District of Columbia as 'Protestants and Other Americans United for Separation of Church and State.' Its purpose is to defend and maintain religious liberty in the United States by the dissemination of knowledge concerning the constitutional principle of the separation of church and State. In 1950, the Internal Revenue Service issued a ruling letter that respondent qualified as a tax-exempt organization under the predecessor provision to § 501(c)(3) of the Internal Revenue Code of 1954 (the Code), 26 U.S.C. § 501(c) (3).1 As a result, the Service treated contributions to respondent as charitable deductions under the predecessor provision of § 170(c)(2) of the Code, 26 U.S.C. § 170(c)(2).2 This situation continued unchanged until April 25, 1969, when the Service issued a ruling letter revoking the 1950 ruling on the ground that respondent had violated §§ 501(c)(3) and 170(c)(2)(D) by devoting a substantial part of its activities to attempts to influence legislation. Shortly thereafter, the Service issued another ruling letter exempting respondent from income taxation as a 'social welfare' organization under Code § 501(c)(4), 26 U.S.C. § 501(c)(4).3 The effect of this change in status was to render respondent liable for unemployment (FUTA) taxes under Code § 3301, 26 U.S.C. § 3301,4 and to destroy its eligibility for tax-deductible contributions under § 170.
2
Because the 1969 ruling letter caused a substantial decrease in its contributions, respondent and two of its benefactors initiated the instant action in the United States District Court for the District of Columbia on July 30, 1970.5 They sought a declaratory judgment that the Service's administration of the lobbying proscriptions of §§ 501(c)(3) and 170 was erroneous or unconstitutional6 and injunctive relief requiring reinstatement of respondent's § 501(c)(3) ruling letter. Because their objections to the Service's action included a facial challenge to the constitutionality of federal statutes,7 they also requested the convening of a three-judge district court pursuant to 28 U.S.C. § 2282.
3
The Service moved to dismiss the action, principally on the ground that the exception in the Declaratory Judgments Act for cases 'with respect to Federal taxes,'8 and the prohibition in the Anti-Injunction Act against suits 'for the purpose of restraining the assessment or collection of any tax,'9 ousted the court of subject-matter jurisdiction. The District Court accepted this argument, refused to convene a three-judge court, and dismissed the complaint in an unpublished order filed March 9, 1971. The United States Court of Appeals for the District of Columbia Circuit affirmed the dismissal insofar as it pertained to the individual plaintiffs, but it reversed as to respondent and remanded the case to the District Court with instructions to convene a three-judge court. 'Americans United' Inc. v. Walters, 155 U.S.App.D.C. 284, 477 F.2d 1169 (1973). The Service petitioned for review, and we granted certiorari. 412 U.S. 927, 93 S.Ct. 2752, 37 L.Ed.2d 154 (1973). We reverse.
4
In our opinion in Bob Jones University v. Simon, 416 U.S. 725, 94 S.Ct. 2038, 40 L.Ed.2d 496, we examined the meaning of the Anti-Injunction Act and its interpretation in prior opinions of this Court, and we reaffirmed our adherence to the two-part test announced in Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962). To reiterate, the Court in Williams Packing unanimously held that a pre-enforcement injunction against the assessment or collection of taxes may be granted only (i) 'if it is clear that under no circumstances could the Government ultimately prevail . . .,' id., at 7, 82 S.Ct., at 1129, and (ii) 'if equity jurisdiction otherwise exists.' Ibid. Unless both conditions are met, a suit for preventive injunctive relief must be dismissed.
5
In the instant case the Court of Appeals recognized Williams Packing as controlling precedent for respondent's individual coplaintiffs and affirmed the dismissal of the suit as to them. 155 U.S.App.D.C., at 292, 477 F.2d, at 1177. The court held that the relief requested by the individual plaintiffs 'relate(d) directly to the assessment and collection of taxes' and that the allegations of infringements of constitutional rights were 'to no avail' in overcoming the barrier of § 7421(a). Id., at 291, 477 F.2d, at 1176. The court also recognized that respondent could not satisfy the Williams Packing criteria, id., at 298, 477 F.2d, at 1183, but concluded that respondent's suit was without the scope of the Anti-Injunction Act and therefore not subject to the Williams Packing test.10
6
The court's conclusion with regard to respondent rested on the confluence of several factors. One was the constitutional nature of respondent's claims. As the court noted, the thrust of respondent's argument is not that it qualifies for a § 501(c)(3) exemption under existing law but rather that that provision's 'substantial part' test and proscription against efforts to influence legislation are unconstitutional. Id., at 293, 477 F.2d, at 1178. Obviously, this observation could not have been dispositive to the Court of Appeals, for this factor does not differentiate respondent, which was allowed to sue, from the individual coplaintiffs, who likewise pressed constitutional claims but who were dismissed from the action. Furthermore, decisions of this Court make it unmistakably clear that the constitutional nature of a taxpayer's claim, as distinct from its probability of success, is of no consequence under the Anti-Injunction Act. E.g., Bailey v. George, 259 U.S. 16, 42 S.Ct. 419, 66 L.Ed. 816 (1922); Dodge v. Osborn, 240 U.S. 118, 36 S.Ct. 275, 60 L.Ed. 557 (1916).
7
The other three factors identified by the Court of Appeals are equally unpersuasive. First, the court noted that respondent 'does not seek in this lawsuit to enjoin the assessment or collection of its own taxes.' 155 U.S.App.D.C., at 292, 477 F.2d, at 1177. Because respondent volunteered to pay FUTA taxes even if it obtained an injunction restoring its § 501(c)(3) status, this observation, we may assume, is correct. It is also irrelevant. Section 7421(a) does not bar merely a taxpayer's attempt to enjoin the collection of his own taxes. Rather, it declares in sweeping terms that 'no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.'11 Thus a suit to enjoin the assessment or collection of anyone's taxes triggers the literal terms of § 7421(a).
8
Perhaps the real point of the court's observation about respondent's taxes was to set the stage for its more pertinent conclusion that restraining the assessment or collection of taxes was 'at best a collateral effect' of respondent's action and that this suit arose 'in a posture removed from a restraint on assessment or collection.' 155 U.S.App.D.C., at 294, 477 F.2d, at 1179. We disagree. Under any reasonable construction of the statutory term 'purpose,' the objective of this suit was to restrain the assessment and collection of taxes from respondent's contributors. The obvious purpose of respondent's action was to restore advance assurance that donations to it would qualify as charitable deductions under § 170 that would reduce the level of taxes of its donors.12 Indeed, respondent would not be interested in obtaining the declaratory and injunctive relief requested if that relief did not effectively restrain the taxation of its contributors. Thus we think it circular to conclude, as did the Court of Appeals, that respondent's 'primary design' was not 'to remove the burden of taxation from those presently contributing but rather to avoid the disposition of contributed funds away from the corporation.' Ibid. The latter goal is merely a restatement of the former and can be accomplished only by restraining the assessment and collection of a tax in contravention of § 7421(a).
9
Finally, the Court of Appeals emphasized that respondent had no 'alternate legal remedy in the form of adequate refund litigation . . ..' Id., at 295, 477 F.2d, at 1180. The court recognized, of course, that respondent does have an opportunity to litigate its claims in an action for refund of FUTA taxes but dismissed this alternative with the statement that 'it is subject to certain conditions and, we feel, is so far removed from the mainstream of the action and relief sought as to hardly be considered adequate.' Id., at 294 n. 13, 477 F.2d, at 1179 n. 13. The import of these comments is unclear. If they are taken to mean that a refund action is, as a practical matter inadequate to avoid the decrease in respondent's contributions for the interim between the withdrawal of § 501(c)(3) status and the final adjudication of its entitlement to that exemption, they are certainly accurate. This, however, is only a statement of irreparable injury, which is the essential prerequisite for injunctive relief under traditional equitable standards and only one part of the Williams Packing test. As we noted in Bob Jones, supra, 416 U.S., at 745—746, 94 S.Ct., at 2050—2051, allowing injunctive relief on the basis of this showing alone would render § 7421(a) quite meaningless.
10
If, on the other hand, the court's comments about the inadequacy of a refund action for FUTA taxes are interpreted to mean that respondent lacks an opportunity to have its claims finally adjudicated by a court of law, we think they are inaccurate. Respondent's liability for FUTA taxes hinges on precisely the same legal issue as does its eligibility for tax-deductible contributions under § 170, namely its entitlement to § 501(c)(3) status. And respondent will have a full opportunity to litigate the legality of the Service's withdrawal of respondent's § 501(c)(3) ruling letter in a refund suit following the payment of FUTA taxes. E.g., Christian Echoes National Ministry, Inc. v. United States, 470 F.2d 849 (C.A.10, 1972), cert. denied, 414 U.S. 864, 94 S.Ct. 41, 38 L.Ed.2d 84 (1973).13
11
We therefore conclude that there are no valid reasons to distinguish this case from Williams Packing for purposes of § 7421(a) or to exempt respondent's suit from the dual requirements enunciated in that case.14 The judgment is reversed.
12
It is so ordered.
13
Judgment reversed.
14
Mr. Justice DOUGLAS took no part in the decision of this case.
15
Mr. Justice BLACKMUN, dissenting.
16
Finding myself in solitary dissent in this 'tax' case, I am somewhat diffident about expressing views contrary to those the Court apparently has reached so easily. I do so only because I am disturbingly aware of the overwhelming power of the Internal Revenue Service. This power is such that its mere exercise often freezes tax status so as to endanger the existence of philanthropic organizations and the public benefits they secure, merely because the path to judicial review is so discouragingly long and expensive. I wrote primarily, therefore, to express what I feel is a needed word of caution about governmental power where the means to challenge that power are unfavorable and unsatisfactory at best.
17
* 'Americans United' Inc. (AU) is a District of Columbia nonprofit educational corporation organized in 1948. For almost 18 years AU was formally recognized by the Service as exempt from federal income tax under § 501(c)(3) of the Internal Revenue Code of 1954, 26 U.S.C. § 501(c)(3),1 and its predecessor, § 101(6) of the Internal Revenue Code of 1939.
18
On April 25, 1968, however, the Commissioner of Internal Revenue revoked AU's letter-ruling exemption on the ground that the organization no longer met the requirements of § 501(c)(3) and, instead, was an 'action' organization, within the definition of Treasury Regulations §§ 1.501(c)(3)—1(c)(3)(i) and (iv), in that a substantial part of its activities was devoted to the pursuit of objective to influence legislation. App. 7—10. The loss of its § 501(c) (3) status, however, did not result in AU's becoming subject to federal income tax. This was because AU qualified as a civic league or other organization to which § 501(c)(4) has application.2
19
The result, nevertheless, was distinctly adverse to AU in two respects. A contribution to the organization no longer was deductible by the donor under § 170(a)(1) and (c)(2)(D) of the 1954 Code, 26 U.S.C. § 170(a)(1) and (c)(2)(D), the latter of which closely parallels but is not identical with § 501(c)(3). As a matter of much less concern, AU also became subject to federal unemployment tax under § 3301 of the Code, 26 U.S.C. § 3301, for exemption therefrom for § 501 organizations is limited to those that qualify under § 501(c)(3). § 3306(c)(8) of the 1954 Code, 26 U.S.C. § 3306(c)(8).3 AU has paid federal unemployment taxes,4 and has stipulated that it will continue to do so.
20
As a result of the revocation of its § 501(c)(3) status, contributions by donors to AU declined sharply so that for the first time the organization was not able to raise enough funds to cover its expenses. AU and two of its benefactors then sought relief by the present suit.5 They have alleged that the substantiality test of §§ 501(c)(3) and 170(c)(2)(D) created an unconstitutional disparity between large and small organizations; that the Commissioner revoked AU's exemption ruling punitively; that it was unconstitutional to penalize First Amendment activity in this manner; and that § 501(c)(3)'s 'substantial' and 'propaganda' standards were unconstitutionally vague. AU sought reinstatement on the IRS Cumulative List of Organizations so that contributions to it would be deductible by donors under § 170(a)(1) and (c)(2)(D).
II
21
The Anti-Injunction Act, § 7421(a) of the Code, 26 U.S.C. § 7421(a), reads in part:
22
'(N)o suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.'
23
In considering § 7421(a), two-step analysis is necessary: (1) When does the statute apply? (2) When it is applicable, under what circumstances is an exception permitted? It seems to me that the Court overlooks the first question in order to apply mechanically the criteria for an exception to the application of § 7421(a).
24
The threshold question, obviously, is whether the present litigation is a 'suit for the purpose of restraining' any tax. It is conceded that AU has no income tax liability and will have none regardless of the outcome of this litigation. AU has paid, and will continue to pay, federal unemployment taxes. Its assumption of FICA tax liability is frozen and cannot now be terminated.
25
It is in the context of this fixed and certain status as to all these federal taxes—income, unemployment, FICA—that 'the purpose' of the present litigation, within the meaning of § 7421(a), must be ascertained. AU asserts that the purpose is to determine its charitable status so far as benefactors are concerned. Indeed, one surely must concede that, within the literal import of the statute's words, the suit is not one 'for the purpose of restraining . . . any tax.' It is, instead, a suit to assure the continuance of contributions utilized to sustain AU's operations.
26
I would not attribute to Congress, however, so simplistic a prohibition in § 7421(a) as to enable an organization to circumvent the statutory barrier by a subjective protestation of the purpose for which an injunction is sought. In order to ascertain legislative intent, it is necessary to consider effect as well as purpose and thus to bring objective criteria into the analysis. See Recent Development, 73 Col.L.Rev. 1502, 1508—1510 (1973).
27
In Bob Jones University v. Connally, 472 F.2d 903, 906 (1973), the Fourth Circuit concluded that when the withdrawal of an exemption 'would ultimately result in potentially greater tax revenues,' the obvious purpose of a suit to enjoin the withdrawal is to prevent the assessment of tax, and § 7421(a) would be applicable. Thus, 'purpose' was equated with ultimate tax effect, Crenshaw County Private School Foundation v. Connally, 474 F.2d 1185, 1188 (C.A.5 1973), pet. for cert. pending No. 73—170, has a similar focus. In the present case the Court of Appeals took a different approach:
28
'The restraint upon assessment and collection is at best a collateral effect of the action, the primary design not being to remove the burden of taxation from those presently contributing but rather to avoid the disposition of contributed funds away from the corporation.' 155 U.S.App.D.C. 284, 293—294, 477 F.2d 1169, 1178—1179.
29
In this view, applicability of the statute depends on the direct effect the relief sought would have on the plaintiff and not on the system as a whole.
30
As has been noted, the result of the injunction sought here would not directly inhibit the collection of tax from AU. It is also highly speculative what collateral effect, if any at all, the suit could possibly have on the federal revenue. If the assertion that AU's contributions have dried up is to be accepted, as I suspect it must be, I would presume that its erstwhile contributors have found other objects for their bounty, that is, other organizations whose names remain on the Service's vitally important Cumulative List. When nothing more than possible collateral effect on the revenues is involved, the Court's wide-ranging test of applicability of § 7421(a), announced today, is, for me, too attenuated and too removed to be encompassed within the intendment of the statute's phrase, 'for the purpose of restraining the assessment or collection of any tax.'
31
In Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962), this Court observed that the object of § 7421(a) 'is to withdraw jurisdiction from the . . . courts to entertain suits seeking injunctions prohibiting the collection of federal taxes,' and 'to permit the United States to assess and collect taxes alleged to be due without judicial intervention, and to require that the legal right to the disputed sums be determined in a suit for refund.' Id., at 5 and 7, 82 S.Ct. at 1128 and 1129. There undoubtedly is appropriate concern about the underlying danger that a multitude of spurious suits, or even of suits with possible merit, would so interrupt the free flow of revenues as to jeopardize the Nation's fiscal stability. See, e.g., State Railroad Tax Cases, 92 U.S. 575, 613—614, 23 L.Ed. 663 (1876); Cheatham v. United States, 92 U.S. 85, 89, 23 L.Ed. 561 (1876). Certainly, precollection suits could threaten planning and budgeting . But I do not perceive how the injunction desired in this case interferes with the area of concern that is the subject of § 7421(a). Any potential increase in revenues because donors no longer may contribute to AU and thereby obtain a § 170(a)(1) deduction is, at best, only minor and speculative and is neither significant nor controlling. I, therefore, would accept 'direct effect on the plaintiff' as a component to be considered in the ascertainment of the true 'purpose' of the suit, within the meaning and reach of § 7421(a).
32
I do not wish to indicate disapproval of Williams Packing. There a taxpayer sought to enjoin the collection of taxes. As the basis for equitable jurisdiction, it assertedthat it would be thrown into bankruptcy if it were required to pay the taxes it challenged. The Court carefully noted that there may well be situations where 'the central purpose of the Act is inapplicable and . . . the attempted collection may be enjoined.' 370 U.S., at 7, 82 S.Ct., at 1129. To be sure, the Court narrowly confined exceptions to § 7421(a) to instances where the plaintiff would suffer irreparable injury and where it was 'clear that under no circumstances could the Government ultimately prevail.' Ibid. If, however, this test is met, then the 'manifest purpose' of the statute—to permit the collection of taxes without judicial intervention—is 'inapplicable.' The Court thus made it clear that there was an element, in addition to the traditional equity considerations previously spelled out in Miller v. Standard Nut Margarine Co., 284 U.S. 498, 52 S.Ct. 260, 76 L.Ed. 422 (1932), that must be present in order to avoid the proscription of the Anti-Injunction Act.
33
Williams Packing, of course, on its facts, is clearly distinguishable from this case. There the purpose of the suit was directly to restrain the collection of social security and unemployment taxes allegedly past due from that taxpayer. Here the avowed purpose is not to restrain tax collection but to assure AU's restoration to the Cumulative List. In Williams Packing it was the incidence of taxation that was challenged and the irreparable injury of prospective payment of the tax was claimed as the equitable basis for the injunction. Nothing remotely resembling that is present here. To read Williams Packing as broadly as the Court does today is to make § 7421(a) more restrictive than the Court in Williams Packing or Congress intended. The result is that § 7421(a) becomes an absolute bar to any and all injunctions, irrespective of tax liability, of purpose or effect of the suit, or of the character of the Service's action.
34
There is a further consideration. Arguably, where the challenged governmental action is not one intended to produce revenue but, rather, is one to accomplish a broad-based policy objective through the medium of federal taxation, the application of § 7421(a) is inappropriate.6 Obviously, § 501(c)(3) is not designed to raise money.7 Its purpose, rather, is to assure the existence of truly philanthropic organizations and the continuation of the important public benefits they bestow.8
35
Another very important factor deserving consideration in this context is the hazard of vesting in the Commissioner virtual plenipotentiary power over philanthropic organizations. Although there can be little question that the Commissioner, under § 7805(a) of the Code, 26 U.S.C. § 7805(a), is properly vested with broad powers to 'prescribe all needful rules and regulations for the enforcement' of the tax laws, there is nothing in the Code that suggests that he must be fully insulated from challenge when effectuating social policy.
36
AU has charged unconstitutional treatment pursuant to an unconstitutional provision. These are claims peculiarly within the province of courts and not of the Executive's administrative officers. The Court's opinion makes clear that a claim of this kind is now precluded from judicial determination until such time as the Court concludes that the Government could not ultimately prevail on the merits. Unless and until that conclusion is reached, the philanthropic organization is at the mercy of the Commissioner for the period of time—usually a substantial one—it takes for a claim to be filed and to work its way through the adjudicative process in the guise of a refund suit with its myriad pitfalls. And even this route is possible only if the organization has a tax that has been paid.9 See Part III, infra.
37
The Court in Bob Jones University, supra, 416 U.S., at 729 730, 94 S.Ct., at 2042, acknowledges that 'appearance on the Cumulative List is a prerequisite to successful fund raising for most charitable organizations.' The program of exemption by letter ruling, therefore, is tantamount to a licensing procedure. If the Commissioner's authority were limited by a clear statutory definition of § 501(c)(3)'s requirement of 'no substantial part,' or by an objective definition of what is 'charitable,' there would be less concern about possible administrative abuse.10 But where the philanthropic organization is concerned, there appears to be little to circumscribe the almost unfettered power of the Commissioner.11 This may be very well so long as one subscribes to the particular brand of social policy the Commissioner happens to be advocating at the time (a social policy the merits of which I make no attempt to evaluate), but application of our tax laws should not operate in so fickle a fashion. Surely, social policy in the first instance is a matter for legislative concern. To the extent these determinations are reposed in the authority of the Internal Revenue Service, they should have the system of checks and balances provided by judicial review before an organization that for years has been favored with an exemption ruling is imperiled by an allegedly unconstitutional change of direction on the part of the Service.
38
When an organization which has appeared on the Cumulative List seeks to enjoin what it claims is its illegal removal from that List and has no direct income tax liability or a de minimis collateral liability, the injunction, in my view, should not be within the prohibition of § 7421(a).
III
39
Concluding, as I have, that § 7421(a) is not a bar to an injunction by AU, the traditional equitable considerations of irreparable injury and adequate alternative remedy must determine whether injunctive relief is appropriate. This is an inquiry independent of the question whether the Anti-Injunction Act applies, and is no different from the inquiry as to when injunctive relief is appropriate outside the tax field. See, for example, Public Service Comm'n v. Wycoff Co., 344 U.S. 237, 240 241, 73 S.Ct. 236, 238—239, 97 L.Ed. 291 (1952); Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506—507, 79 S.Ct. 948, 954, 3 L.Ed.2d 988 (1959). AU makes a vigorous and pressing claim that it is and will be irreparably injured by the loss of contributions since donors no longer receive an income tax deduction, and that this loss is completely unrecoverable even were AU ultimately to prevail on the merits. The Court in its opinion, ante, at 761—762, seems to accept the fact of irreparable injury here, just as the Court of Appeals recognized its presence as virtually inevitable. 155 U.S.App.D.C., at 292, 477 F.2d, at 1177. Even where it has been found that § 7421(a) bars a suit, it has been recognized that revocation of exempt status is an irreparable injury that otherwise satisfies the condition for the granting of injunctive relief. See, for example, Bob Jones University v. Connally, 472 F.2d, at 906.
40
In addition to irreparable injury, the plaintiff must show that he has no adequate remedy at law. Wilson v. Shaw, 204 U.S. 24, 31, 27 S.Ct. 233, 234, 51 L.Ed. 351 (1907). The Commissioner suggests that a plaintiff organization usually has three alternative remedies, any one of which is adequate: an income tax refund suit, a federal unemployment tax or FICA tax refund suit, and an accommodation suit by a selected donor in the form of testing his claim to a charitable deduction under § 170(a)(1) and (c)(2)(D).
41
In AU's case the Commissioner, of course, cannot and does not contend that the income tax refund suit alternative is available. AU received § 501(c)(4) status upon revocation of its § 501(c)(3) exemption, and it is not subject to federal income tax so long as it retains § 501(c)(4) status. Whenever that alternative is available, as in Bob Jones University, supra, 416 U.S. 725, 94 S.Ct. 2038, 40 L.Ed.2d 496, such availability not only indicates the existence of a remedy at law but that the direct effect of an injunction would be to restrain the collection of taxes.
42
An FICA tax refund suit is not available as an alternative to AU, since AU has made its election under § 3121(k)(1)(A) and that election is now irrevocable. See n. 3, supra. Although AU conceivably might bring a refund suit for federal unemployment taxes,12 the real question, and a substantial one, is whether that remedy is adequate for AU and is an effective route for the determination of the issues involved.
43
A suit for refund of federal unemployment tax, authorized under § 7422 of the Code, 26 U.S.C. § 7422, and with a period of limitations imposed by § 6532(a), is directly geared to a determination of the technical aspects of FUTA liability and not to the larger constitutional issues. At most, the refund suit is an artificial vehicle to adjudicate questions other than entitlement to refund; its focus is on liability and not on eligibility under § 170(a)(1) and (c)(2)(D). It is most doubtful, also, that potential contributors would regard a favorable outcome in such a suit as possessing the reliability of a favorable letter ruling. Assuming that AU could litigate its constitutional claims in an FUTA refund suit, see Christian Echoes National Ministry, Inc. v. United States, 470 F.2d 849 (CA.10 1972), cert. denied, 414 U.S. 864, 94 S.Ct. 41, 38 L.Ed.2d 84 (1973),13 there are other obstacles in its path.
44
The suit for refund may not be maintained until a claim for refund has been filed. § 7422. The federal unemployment tax is imposed on an annual basis; thus, no refund can be claimed until the expiration of the year for which the tax is paid. Section 6532(a)(1), as usual, precludes the suit until the claim is denied or six months have passed from the date of filing. Once suit is instituted, the Government has at least 60 days to answer the complaint. Under optimum conditions and with cooperation, the minimum period of time required to achieve the objective through the refund suit is one to two years from the time of revocation.14 This is the delay if the organization wins and no Government appeal is taken. If an appeal follows, the delay in ultimate resolution drags on. E.g., Christian Echoes, supra, where the ruling was revoked in 1966 and final judicial review was concluded only in 1973. While this is perhaps to be expected, and must be endured, in an ordinary tax refund suit, a delay of this magnitude defeats the adequacy of remedy when a philanthropic organization's very existence is at stake.
45
There are still other hazards. When small sums are at issue, as with AU's FUTA liability, the Government inadvertently or intentionally may concede the refund. This is not unlikely, for sound administration may not warrant the time and expense necessary to contest a claim of small amount when vital issues and conceivably profound precedents are at stake. Church of Scientology v. United States, 485 F.2d 313 (C.A.9 1973), illustrates the Government's effort to win dismissal of a case when a refund had been made. See also Mitchell v. Riddell, 402 F.2d 842 (C.A.9 1968), appeal dismissed and cert. denied, 394 U.S. 456, 89 S.Ct. 1223, 22 L.Ed.2d 415 (1969). There is little doubt that the Commissioner possesses the authority to make the refund and moot the suit if he chooses not to litigate the underlying issues. Although I agree with the Commissioner that to do so in a situation like that in the instant case would amount to bad faith, Brief for Petitioner 35 n. 25, it would be almost impossible for an organization to prove bad faith where, as here, the sum at issue is minimal and inadvertence or sound administration could be a valid reason for the refund.
46
Additionally, there is a substantial question whether an organization's eventual victory in a refund suit would accomplish its goal. The Commissioner has asserted that 'normal practice is to issue a favorable ruling upon the application of an organization which has prevailed in a court suit,' Reply Brief for Petitioner 34—35, n. 31. Still, the IRS Exemption Organizations, handbook states:
47
'An organization which obtains a Tax Court or Federal court decision holding it to be exempt must file an exemption application and establish its right to exemption before the Service will recognize its exemption for years subsequent to those involved in the court decision.' Department of Treasury, Internal Revenue Manual, Part XI, c. (11) 671, 270.
48
Whatever the internal practice may be, the published procedures cast serious doubt on the adequacy of the refund suit to resolve the organization's urgent problem. The revenue ruling has prospective application, whereas a court determination operates retrospectively to the extent the pleadings and proof and the applicable statute of limitations permit.15 Thus, the scope of relief available in a refund suit is also uncertain. The organization is then faced with the dilemma of choosing between a so-called pre-assessment suit, which the Court says it cannot bring, and a refund suit that decides little more than the correctness of a particular year's tax liability (which in this case has been paid and is of little or no concern).
49
The staged suit by a 'friendly' donor is the Commissioner's other suggestion. The donor's suit suffers the same time problems. The organization is off the Cumulative List at least until the donor establishes his entitlement to a §§ 170(a)(1) and (c)(2)(D) deduction. This suit also may be mooted. Moreover, litigation by the accommodating donor does not permit the organization to assert its rights and interests. Could the donor make the First Amendment and equal protection claims that AU seeks to have determined? Not only must AU rely on a contributor to raise issues for it, but it must find a donor who is willing both to contribute and to undertake the task of litigation. This strains largesse to the extreme, particularly since the suit will subject the donor to routine full audit of his own return.
50
I conclude that neither course is an adequate remedy for an irreparably harmed organization to vindicate its claims.16 Thus, equitable relief in the form of an injunction is not inappropriate.
IV
51
The last issue is whether the amended complaint presented a substantial constitutional question on the merits justifying the convening of a three-judge court under 28 U.S.C. § 2282. The test was enunciated in Ex parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 4, 78 L.Ed. 152 (1933), and restated in Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 858, 35 L.Ed.2d 36 (1973), and in Hagans v. Lavine, 415 U.S. 528, 542—543, 94 S.Ct. 1372, 1381—1382, 39 L.Ed.2d 577 (1974). The Court of Appeals in the present case said that 'the possibility of success is not so certain as to merit the Enochs exception with respect to § 7421(a), yet not so frivolous or foreclosed as to merit denial of the § 2282 motion.' 155 U.S.App.D.C., at 298, 477 F.2d, at 1183. I do not differ with that determination.
52
I, of course, imply no opinion on the merits of the underlying controversy.
53
Since I cannot join the Court's reversal of the Court of Appeals' judgment, I respectfully dissent.
1
The predecessor provision of Code § 501(c)(3) was § 101(6) of the Internal Revenue Code of 1939. Section 501(c)(3) describes the following as organizations exempt from federal income taxes by virtue of § 501(a):
'Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation, and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of any candidate for public office.'
2
The predecessor provision of § 170(c)(2) of the Code was § 23(o)(2) of the Internal Revenue Code of 1939. Section 170(c)(2) defines a 'charitable contribution' for purposes of § 170(a), the charitable deduction provision, to mean a contribution or gift to or for the use of:
'A corporation, trust, or community chest, fund, or foundation—
'(A) created or organized in the United States or in any possession thereof, or under the law of the United States, any State, the District of Columbia, or any possession of the United States;
'(B) organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes or for the prevention of cruelty to children or animals;
'(C) no part of the net earnings of which inures to the benefit of any private shareholder or individual; and
'(D) no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation, and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of any candidate for public office.'
The differences between the requirements of §§ 501(c)(3) and 170(c)(2) are minor and are not involved in this litigation.
3
Section 501(c)(4) lists the following organizations as qualifying under the § 501(a) exemption from federal income taxes:
'Civic leagues or organizations not organized for profit but operated exclusively for the promotion of social welfare, or local associations of employees, the membership of which is limited to the employees of a designated person or persons in a particular municipality, and the net earnings of which are devoted exclusively to charitable, educational, or recreational purposes.'
4
See Code § 3306(c)(8), 26 U.S.C. § 3306(c)(8). Respondent began paying FUTA taxes in February 1970 and has stated its willingness to continue to do so in light of its relatively insubstantial liability for such taxes. The Service reports that respondent paid $981.13 in FUTA taxes for the year 1969, $1,052.60 for 1970, $889.09 for 1971, and $1,131.36 for 1972. Brief for Petitioner 4 n. 2.
Ordinarily, respondent's shift from § 501(c)(3) status to § 501(c)(4) status would also have meant that it would become subject to federal social security (FICA) taxes, since § 501(c)(3) organizations are exempt from such taxes but § 501(c)(4) organizations are not. Code § 3121(b)(8)(B), 26 U.S.C. § 3121(b)(8) (B). This distinction is not involved here, however, because respondent in prior years voluntarily elected to pay FICA taxes although it held § 501(c)(3) status. This election had been in effect for more than eight years, which rendered respondent incapable of terminating its election to pay FICA taxes even if it had retained its § 501(c)(3) status. Code § 3121(k)(1)(D), 26 U.S.C. § 3121(k)(1)(D).
5
Federal jurisdiction was founded on 28 U.S.C. §§ 1331 and 1340 and on § 10 of the Administrative Procedure Act, now 5 U.S.C. §§ 701—706.
6
The amended complaint identified five claims: (1) that the lobbying proscriptions of §§ 501(c)(3) and 170(c)(2)(D) and the Service's administration of them were unconstitutional due to the restrictions imposed on the exercise of First Amendment rights of political advocacy by respondent and its contributors; (2) that the 'substantial part' test of these provisions denied equal protection of the laws, in conflict with the Due Process Clause of the Fifth Amendment, by allowing large tax-exempt organizations to engage in a greater quantum of lobbying activity than is allowed to smaller organizations; (3) that this disparity in the absolute amounts of lobbying activity allowed large and small § 501(c)(3) organizations enabled certain large churches to engage in more lobbying in favor of government aid to church schools than respondent could bring to bear in opposition, thereby violating the plaintiffs' rights under the Establishment and Free Exercise Clauses of the First Amendment; (4) that the statutory standards of 'substantial part' and 'propaganda' were so lacking in specificity that they constituted an invalid delegation of legislative power to the Service; and (5) that the Service acted arbitrarily and capriciously in revoking respondent's § 501(c)(3) exemption. The last two contentions apparently were not advanced in the Court of Appeals. There the argument centered on the 'discriminatory' aspects of the 'substantial part' test identified above as claim (2).
7
Specifically, respondent and its coplaintiffs sought to have the exemption clauses of § 501(c)(3) severed from the remainder of that section and declared unconstitutional.
8
The federal tax exception to the Declaratory Judgment Act appears in 28 U.S.C. § 2201:
'In a case of actual controversy within its jurisdiction, except with respect to Federal taxes, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.' (Emphasis added.)
9
The Anti-Injunction Act (Income Tax Assessment) is set forth in Code § 7421(a), 26 U.S.C. § 7421(a):
'Except as provided in sections 6212(a) and (c), 6213(a), and 7426(a) and (b) (1), no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.'
None of the exceptions is relevant to this case.
10
The Court of Appeals also held that the scope of the 'except with respect to Federal taxes' clause of the Declaratory Judgment Act, see n. 8, supra, is coterminous with the Anti-Injunction Act ban against suits 'for the purpose of restraining the assessment or collection of any tax' despite the broader phrasing of the former provision. 155 U.S.App.D.C. 284, 291, 477 F.2d 1169, 1176. While we take no position on this issue, it is in any event clear that the federal tax exception to the Declaratory Judgment Act is at least as broad as the prohibition of the Anti-Injunction Act. Because we hold that that latter Act bars the instant suit, there is no occasion to deal separately with the former. See Bob Jones University v. Simon, 416 U.S., at 732—733, n. 7, 94 S.Ct., at 2044, n. 7.
11
The portion of § 7421(a) beginning with 'by any person' was added to the Act, in 1966. See Bob Jones University v. Simon, 416 U.S., at 731—732, 94 S.Ct., at 2043, n. 6. As we noted there, however, the 'by any person' phrase reaffirms the plain meaning of the original language of the Act.
12
Alternatively, this suit was intended to reassure private foundations that they could make contributions to respondent without risk of tax liability under Code § 4945(d)(5), 26 U.S.C. § 4945(d)(5). In this respect, the purpose of this action was to restrain the assessment of taxes against such foundations.
13
That respondent has voluntarily paid FUTA taxes rather than challenging their imposition via a refund suit does not alter this conclusion. A taxpayer cannot render an available review procedure an inadequate remedy at law by voluntarily forgoing it. See Graham v. Du Pont. 262 U.S. 234, 43 S.Ct. 567, 67 L.Ed. 965 (1923).
It should also be noted that this case cannot be distinguished from Bob Jones, 416 U.S. 725, 94 S.Ct. 2038, 40 L.Ed.2d 496, on the ground that petitioner in that case in theory will be subject to federal income taxes upon on termination of its § 501(c)(3) status, whereas respondent in this case will not, given that it has established § 501(c)(4) status. Refund suits for federal income taxes and for FUTA (or FICA) taxes are fungible in the present context. So long as the imposition of a federal tax, without regard to its nature, follows from the Service's withdrawal of § 501(c)(3) status, a refund suit following the collection of that tax is an appropriate vehicle for litigation the legality of the Service's actions under § 501(c)(3). As noted in Bob Jones, supra, at 748 n. 22, 94 S.Ct. at 2051 n. 22, we need not decide now the range of remedies available in such a refund suit, which, unlike this suit, is brought pursuant to congressionally authorized procedures.
14
We think our reading of § 7421(a) is compelled by the language and apparent congressional purpose of this statute. The consequences of the present regime for § 501(c)(3) organizations can be harsh indeed, as Mr. Justice BLACKMUN ably articulates in his dissenting opinion today. As we noted in Bob Jones, supra, at 749—750, 94 S.Ct., at 2052, this may well be a subject meriting congressional consideration.
1
AU's exemption ruling, under § 101(6) of the 1939 Code, was issued July 3, 1950. Section 501 reads in pertinent part as follows:
§ 501. Exemption from tax on corporations, certain trusts, etc.
'(a) Exemption from taxation.
'An organization described in subsection (c) . . . shall be exempt from taxation under this subtitle unless such exemption is denied under section 502 or 503.
'(c) List of exempt organizations.
'The following organizations are referred to in subsection (a):
'(3) Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation, and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of any candidate for public office.'
2
Section 501(c)(4) relates to:
'(4) Civic leagues or organizations not organized for profit but operated exclusively for the promotion of social welfare, or local associations of employees, the membership of which is limited to the employees of a designated person or persons in a particular municipality, and the net earnings of which are devoted exclusively to charitable, educational, or recreational purposes.'
3
Although, under § 3121(b)(8)(B) of the 1954 Code, 26 U.S.C. § 3121(b)(8) (B), AU was not required to pay tax imposed by the Federal Insurance Contributions Act so long as it was exempt under § 501(c)(3), it had elected to do so, as was its privilege under § 3121(k)(1)(A), 26 U.S.C. § 3121(k)(1)(A). Termination of this accepted responsibility for tax requires two years' advance written notice and cannot be effected at all after an organization has been subjected to the tax eight years or more. § 3121(k)(1)(D), 26 U.S.C. § 3121(k) (1)(D). AU has been so taxed for more than eight years. Thus, it is unable to terminate its responsibility for tax under the FICA even if it were to continue as a § 501(c)(3) organization.
4
AU paid $981.13 in federal unemployment tax for 1969; $1,052.60 for 1970; $889.09 for 1971; and $1,131.36 for 1972. Brief for Petitioner 4 n. 2.
5
The amended complaint requested both declaratory and injunctive relief. The latter, however, would be fully adequate and a declaratory judgment, as such, would not be needed. Accordingly, I am concerned only with the applicability of the Anti-Injunction Act, § 7421(a) of the Code, 26 U.S.C. § 7421(a).
The Commissioner has asserted that the Declaratory Judgment Act, 28 U.S.C. §§ 2201—2202, also provides a jurisdictional barrier to the suit because its general applicability is limited by the phrase, 'except with respect to Federal taxes.' While not reaching the question, I would agree with the Court's observation in the companion case, Bob Jones University v. Simon, 416 U.S. 725, at 732—733, n. 7, 94 S.Ct. 2038, at 2044, n. 7, 40 L.Ed.2d 496, that questions exist as to the scope of § 2201 and as to whether it is co-terminous with § 7421(a).
The Commissioner also asserts that the doctrine of sovereign immunity bars the present action. I do not agree. The suit, as the Court of Appeals noted, 155 U.S.App.D.C. 284, 295, 477 F.2d 1169, 1180, falls within the immunity doctrine's exceptions enunciated in Dugan v. Rank, 372 U.S. 609, 621—622, 622, 83 S.Ct. 999, 1007, 10 L.Ed.2d 15 (1963): '(1) action by officers beyond their statutory powers and (2) even though within the scope of their authority, the powers themselves or the manner in which they are exercised are constitutionally void.' Here, the claim is made that § 501(c)(3) is unconstitutional and that the Commissioner administers the section in an unconstitutional manner.
In Green v. Connally, 330 F.Supp. 1150 (D.C.1971), the court granted relief against Treasury officials comparable to that sought here. Inasmuch as the defense of sovereign immunity is jurisdictional, United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941), this Court's summary affirmance of the Green case sub nom. Coit v. Green, 404 U.S. 997, 92 S.Ct. 564, 30 L.Ed.2d 550 (1971), affords pertinent precedent.
6
Some courts have endorsed this approach. In McGlotten v. Connally, 338 F.Supp. 448 (D.C.1972), a suit to enjoin, among other things, the continuation of tax exempt status of organizations that excluded nonwhites from membership, Chief Judge Bazelon, in writing for a three-judge District Court, stated:
'Plaintiff's action has nothing to do with the collection or assessment of taxes. He does not contest the amount of his own tax, nor does he seek to limit the amount of tax revenue collectible by the United States. . . . In the present case, the central purpose (of the statute) is clearly inapplicable.' Id., at 453—454 (footnotes omitted). See also Green v. Connally, 330 F.Supp. 1150 (D.C.), aff'd per curiam sub nom. Coit v. Green, 404 U.S. 997, 92 S.Ct. 564, 30 L.Ed.2d 550 (1971), where the three-judge court did not mention § 7421(a) specifically but permitted the suit and granted relief; Bob Jones University v. Connally, 472 F.2d 903, 907—908 (CA4 1973) (dissenting opinion). And see the opinion of the Court of Appeals in the present case. 155 U.S.App.D.C., at 293—294, 477 F.2d, at 1178—1179.
The purpose of the IRS action of itself is not controlling. The Court has found that 'taxes' in the nature of a penalty were not within the meaning of § 7421(a), Hill v. Wallace, 259 U.S. 44, 42 S.Ct. 453, 66 L.Ed. 822 (1922); Lipke v. Lederer, 259 U.S. 557, 42 S.Ct. 549, 66 L.Ed. 1061 (1922), and has rejected, as well, the contention that an injunction could issue against a regulatory tax as opposed to a revenue measure. Sonzinsky v. United States, 300 U.S. 506, 57 S.Ct. 554, 81 L.Ed. 772 (1937). The Court relies on Bailey v. George, 259 U.S. 16, 42 S.Ct. 419, 66 L.Ed. 816 (1922), for the principle that even the collection of an unconstitutional tax cannot be enjoined. All these situations, however, have a factor in common with Williams Packing that is absent from the present suit: AU does not seek to restrain the Government's act of collecting any tax that it owes.
7
Commissioner Alexander spoke to this effect in remarks to the American Society of Association Executives in New Orleans August 29, 1973:
'The IRS recognizes that the exempt organization provisions of the law must be interpreted and administered in light of their special purpose and their place in the tax law. Their purpose is not to raise revenue. Rather, they are designed to act as a guardian. They insure that exempt organization assets will be put to the approved uses contemplated in the law. Their application calls for an extraordinary degree of care and judgment.' BNA Daily Tax Report, Aug. 30, 1973, p. J—1.
8
The value of philanthropic organizations must be balanced against the revenue-raising objectives of the tax laws. Some of the factors to be weighed in this balance are reflected in the 1965 Treasury Department Report on Private Foundations:
'Private philanthropic organizations can possess important characteristics which modern government necessarily lacks. They may be many-centered, free of administrative superstructure, subject to the readily exercised control of individuals with widely diversified views and interests. Such characteristics give these organizations great opportunity to initiate thought and action, to experiment with new and untried ventures, to dissent from prevailing attitudes, and to act quickly and flexibly. Precisely because they can be initiated and controlled by a single person or a small group, they may evoke great intensity of interest and dedication of energy. These values, in themselves, justify the tax exemptions and deductions which the law provides for philanthropic activity.
'Private foundations play a significant part in the work of philanthropy. While the foundation is a relatively modern development, its predecessor, the trust, has ancient vintage. Like its antecedent, the foundation permits a donor to commit to special uses the funds which he gives to charity. . . . In these ways, foundations have enriched and strengthened the pluralism of our social order.
'Private foundations have also preserved fluidity and provided impetus for change within the structure of American philanthropy. Operating charitable organizations tend to establish and work within defined patterns. . . . The assets of private foundations, on the other hand, are frequently free of commitment to specific operating programs or projects; and that freedom permits foundations relative ease in the shift of their focus of interest and their financial support from one charitable area to another. New ventures can be assisted, new areas explored, new concepts developed, new causes advanced. Because of its unique flexibility, then, the private foundation can constitute a powerful instrument for evolution, growth, and improvement in the shape and direction of charity.' Senate Committee on Finance, 89th Cong., 1st Sess., 12—13 (Comm.Print 1965).
9
The Commissioner states that the majority of organizations exempt under § 501(c)(3) operate at a loss so that no income tax liability would result if their exemptions were revoked. Bob Jones University v. Simon, Brief for Petitioner 23 n. 22.
10
As has been noted, one of AU's claims is that 'substantial' and 'propaganda,' as these words are employed in § 501(c)(3), are unconstitutionally vague. There are no clear objective criteria by which the Commissioner draws his conclusions with respect to these terms. Moreover, the § 501(c)(3) revocation is arrived at by the Commissioner not solely by construing the language of § 501(c)(3), but by his assertion that that section and § 170(a)(1) and (c)(2)(D) are in pari materia. Thus, the idiosyncrasies of the word 'charitable' in § 170(a)(1) are engrafted upon, and entwined with, the 'organized and operated exclusively for religious, charitable . . . or educational purposes' standard of § 501(c)(3). This is nowhere compelled by statute, but is the product of the Commissioner's discretionary application and interpretation.
11
In Bob Jones University, supra, 416 U.S., at 740, 94 S.Ct., at 2047, the Court suggests that so long as an action of the Service reflects 'a good-faith effort to enforce the technical requirements of the tax laws,' the presence of a collateral motive does not render the Anti-Injunction Act inapplicable. I do not perceive just where the good-faith inquiry is made. It certainly is not made at the determination whether a suit is for the purpose of restraining taxes. It is doubtful that it is made in determining whether there are any circumstances under which the Government may ultimately prevail on the merits. Moreover, for me, there is a distinct question as to the meaning of the Court's phrase, 'a good-faith effort to enforce the technical requirements of the tax laws.' Is innovation in effectuating social policy a good-faith effort to enforce technical requirements? Is a threat to revoke a university's exemption ruling made in good faith when it rests on the proposition that the institution does not comply with government-approved admission standards?
12
The Court assumes the ready availability of an FUTA refund suit. Ante, at 762—763 n. 13. It is curious, however, that the Commissioner did not assert this possibility in the earlier stages of the litigation. It was suggested, apparently, only after the main briefing in the Court of Appeals. Tr. of Oral Arg. 36—37. It is also noteworthy that in discussing the problem former Commissioner Thrower has stated:
'There is no practical possibility of quick judicial appeal at the present. If we deny tax exemption or the benefit to the organization of its donors having the assurance of deductibility of contributions, the organization must either create net taxable income or other tax liability for itself as a litigable issue, or find a donor who as a guinea pig is willing to make a contribution, have it disallowed, and litigate the disallowance.' Thrower, IRS Is Considering Far Reaching Changes in Ruling on Exempt Organizations, 34 J. of Taxation 168 (1971).
Whether procedurally feasible or not, there is some indication that such suits are not common practice.
13
In Christian Echoes a nonprofit religious corporation sued for refund of FICA taxes in an aggregate amount exceeding $103,000 paid over seven taxable years. The purpose of the suit, of course, was to recover the taxes paid, but constitutional challenges to § 501(c)(3) were the basic legal arguments. There is no suggestion in the court's opinion that Christian Echoes' primary concern was with the loss of contributions; this, however, must have been of relative importance.
14
Former Commissioner Thrower, in the article cited above, stated that 'the issue under the best of circumstances could hardly come before a court until at least a year after the tax year in which the issue arises. Ordinarily, it would take much longer for the case of the organization's status to be tried.' 34 J. of Taxation 168.
The former Commissioner also made significant remarks with respect to the need for judicial determination of issues involved in this case that will be precluded by the Court's interpretation of § 7421:
'This is an extremely unfortunate situation for several reasons. First, it offends my sense of justice for undue delay to be imposed on one who needs a prompt decision. Second, in practical effect it gives a greater finality to IRS decisions than we would want or Congress intended. Third, it inhibits the growth of a body of case law interpretive of the exempt organization provisions that could guide the IRS in its further deliberations.' Ibid.
15
See Note, Procedural Due Process Limitations on the Suspension of Advanced Assurance of Deductibility, 47 S.Cal.L.Rev. 427 (1974), for a detailed discussion of constitutional considerations of IRS letter-ruling revocation without a hearing.
16
The contention that the remedies suggested by the Commissioner are inadequate is supported by most of the commentators who have addressed the issue since these cases were decided in the Courts of Appeals. See Note, Constitutional Implications of Withdrawal of Federal Tax Benefits From Private Segregated Schools, 33 Md.L.Rev. 51, 53 (1973); Note, The Loss of Privileged Tax Status and Suits to Restrain Assessments, 30 Wash. & Lee L.Rev. 573, 590 (1973); Comment, Avoiding the Anti-Injunction Statute in Suits to Enjoin Termination of Tax-Exempt Status, 14 Wm. & Mary L.Rev. 1014, 1025 (1973); Recent Development, 73 Col.L.Rev. 1502, 1513—1514 (1973); Notes, 46 Temp.L.Q. 596, 601 (1973).
| 1112
|
416 U.S. 696
94 S.Ct. 2006
40 L.Ed.2d 476
Carolyn BRADLEY et al., Petitioners,v.SCHOOL BOARD OF CITY OF RICHMOND et al.
No. 72—1322.
Argued Dec. 5, 1973.
Decided May 15, 1974.
Syllabus
The District Court on May 26, 1971, awarded to the successful plaintiff-petitioners, Negro parents and guardians, in this protracted litigation involving the desegregation of the Richmond, Virginia, public schools, expenses and attorneys' fees for services rendered from March 10, 1970, to January 29, 1971. On March 10, 1970, petitioners had moved in the District Court for additional relief under Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716, in which this Court held that a freedom-of-choice plan (like the one previously approved for the Richmond schools) was not acceptable where methods promising speedier and more effective conversion to a unitary school system were reasonably available. Respondent School Board then conceded that the plan under which it had been operating was not constitutional. After considering a series of alternative and interim plans, the District Court on April 5, 1971, approved the Board's third proposed plan, and the order allowing fees followed shortly thereafter. Noting the absence of any explicit statutory authorization for such an award in this type of case, the court predicated its ruling on the grounds (1) that actions taken and defenses made by the School Board during the relevant period resulted in an unreasonable delay in desegregation of the schools, causing petitioners to incur substantial expenditures to secure their constitutional rights, and (2) that plaintiffs in actions of this kind were acting as 'private attorneys general,' Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263, in leading the School Board into compliance with the law, thus effectuating the constitutional guarantees of nondiscrimination. The Court of Appeals reversed, stressing that 'if such awards are to be made to promote the public policy expressed in legislative action, they should be authorized by Congress and not by the courts.' Following initial submission of the case to the Court of Appeals but before its decision, Congress enacted § 718 of the Education Amendments of 1972, which granted a federal court authority to award the prevailing party areasonable attorney's fee when appropriate upon entry of a final order in a school desegregation case, the applicability of which to this and other litigation the court then considered. In the other cases, the court held that § 718 did not apply to services rendered prior to July 1, 1972, the effective date of § 718, and in this case reasoned that there were no orders pending or appealable on either May 26, 1971, when the District Court made its fee award, or on July 1, 1972, and that therefore § 718 could not be used to sustain the award. Held: Section 718 can be applied to attorneys' services that were rendered before that provision was enacted, in a situation like the one here involved where the propriety of the fee award was pending resolution on appeal when the statute became law. Pp. 710—724.
(a) An appellate court must apply the law in effect at the time it renders its decision, Thorpe v. Housing Authority of City of Durham, 393 U.S. 268, 281, 89 S.Ct. 518, 525, 21 L.Ed.2d 474, unless such application would work a manifest injustice or there is statutory direction or legislative history to the contrary. Pp. 711—716.
(b) Such injustice could result 'in mere private cases between individuals,' United States v. Schooner Peggy, 1 Cranch 103, 110, 2 L.Ed. 49, the determinative factors being the nature and identity of the parties, the nature of their rights, and the nature of the impact of the change in law upon those rights. Upon consideration of those aspects here (see infra, (c)—(e)), it cannot be said that the application of the statute would cause injustice. Pp. 716—721.
(c) There was a disparity in the respective abilities of the parties to protect themselves, and the litigation did not involve merely private interests. Petitioners rendered substantial service to the community and to the Board itself by bringing it into compliance with its constitutional mandate and thus acting as a 'private attorney general' in vindicating public policy. Pp. 718 719.
(d) Application of § 718 does not affect any matured or unconditional rights, the School Board having no unconditional right to the funds allocated to it by the taxpayers. Pp. 716—721.
(e) No increase burden was imposed since the statute did not alter the Board's constitutional responsibility for providing pupils with a nondiscriminatory education, and there is no change in the substantive obligation of the parties. Pp. 718—719.
(f) The Court of Appeals erred in concluding that § 718 was inapplicable to the petitioners' request for fees because there was no final order pending unresolved on appeal, since the language of § 718 is not to be read to mean that a fee award must be made simultaneously with the entry of a desegregation order, and a district court must have discretion in a school desegregation case to award fees and costs incident to the final disposition of interim matters. Pp. 721—723.
(g) Since the District Court made an allowance for services to January 29, 1971, when petitioners were not yet the 'prevailing party' within the meaning of § 718, the fee award should be recomputed to April 5, 1971, or thereafter. Pp. 723—724.
472 F.2d 318, vacated and remanded.
William T. Coleman, Jr., Philadelphia, Pa., for petitioners.
George B. Little, Richmond, Va., for respondents.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
In this protracted school desegregation litigation, the District Court awarded the plaintiff-petitioners expenses and attorneys' fees for services rendered from March 10, 1970, to January 29, 1971. 53 F.R.D. 28 (ED Va.1971). The United States Court of Appeals for the Fourth Circuit, one judge dissenting, reversed. 472 F.2d 318 (1972). We granted certiorari, 412 U.S. 937, 93 S.Ct. 2773, 37 L.Ed.2d 396 (1973), to determine whether the allowance of attorneys' fees was proper. Pertinent to the resolution of the issue is the enactment in 1972 of § 718 of Title VII, the Emergency School Aid Act, 20 U.S.C. § 1617 (1970 ed., Supp. II), as part of the Education Amendments of 1972, Pub.L. 92—318, 86 Stat. 235, 369.
2
* The suit was instituted in 1961 by 11 Negro parents and guardians against the School Board of the city of Richmond, Virginia, as a class action under the Civil Rights Act of 1871, 42 U.S.C. § 1983, to desegregate the public schools. On March 16, 1964, after extended consideration,1 the District Court approved a 'freedom of choice' plan by which every pupil was permitted to attend the school of the pupil's or the parents' choice, limited only by a time requirement for the transfer application and by lack of capacity at the school to which transfer was sought. On appeal, the Fourth Circuit, sitting en banc, affirmed, with two judges dissenting in part, and held that the plan satisfied the Board's constitutional obligations. 345 F.2d 310 (1965). The court saw no error in the trial court's refusal to allow the plaintiffs' attorneys more than a nominal fee ($75). Id., at 321. The dissenters referred to the fee as 'egregiously inadequate.' Id., at 324. On petition for a writ of certiorari, this Court, per curiam, 382 U.S. 103, 86 S.Ct. 224, 15 L.Ed.2d 187 (1965), summarily held that the petitioners improperly had been denied a full evidentiary hearing on their claim that a racially based faculty allocation system rendered the plan constitutionally inadequate under Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). In vacating the judgment of the Court of Appeals and in remanding the case, we expressly declined to pass on the merits of the desegregation plan and noted that further judicial review following the hearing was not precluded. 382 U.S. at 105, 86 S.Ct. at 225.
3
After the required hearing, the District Court, on March 30, 1966, approved a revised 'freedom of choice' plan2 submitted by the Board and agreed to by the petitioners. App. 17a. It provided that if the steps taken by the Board 'do not produce significant results during the 1966—67 school year, it is recognized that the freedom of choice plan will have to be modified.' Id., at 23a. This plan was in operation about four years. While it was in effect, Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), was decided. The Court there held that where methods promising speedier and more effective conversion to a unitary system were reasonably available, a freedom-of-choice plan was not acceptable. Id., at 439—441, 88 S.Ct., at 1694—1696.
4
Thereafter, on March 10, 1970, petitioners filed with the District Court a motion for further relief in the light of the opinions of this Court in Green, supra, in Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969), and in Carter v. West Feliciana Parish School Board, 396 U.S. 290, 90 S.Ct. 608, 24 L.Ed.2d 477 (1970). Specifically, petitioners asked that the court 'require the defendant school board forthwith to put into effect' a plan that would 'promptly and realistically convert the public schools of the City of Richmond into a unitary non-racial system,' and that the court 'award a reasonable fee to (petitioners') counsel.' App. 25a. The court then ordered the Board to advise the court whether the public schools were being operated 'in accordance with the constitutional requirements . . . enunciated by the United States Supreme Court.' Id., at 27a. The Board, by a statement promptly filed with the District Court, averred that it had operated the school system to the best of its knowledge and belief in accordance with the decree of March 30, 1966, but that it has 'been advised' that the city schools were 'not being operated as unitary schools in accordance with the most recent enunciations of the Supreme Court.' Id., at 28a. It was also asserted that the Board had requested the Department of Health, Education, and Welfare to make a study and recommendation; that the Department had agreed to undertake to do this by May 1; and that the Board would submit a plan for the operation of the public school system not later than May 11. Ibid. Following a hearing, however, the District Court, on April 1, 1970, entered a formal order vacating its order of March 30, 1966, and enjoining the defendants 'to disestablish the existing dual system' and to replace it 'with a unitary system.' See 317 F.Supp. 555, 558 (ED Va.1970). Thereafter, the Board and several intervenors filed desegregation plans.
5
The initial plan offered by the Board and HEW was held unacceptable by the District Court on June 26, 1970. Id., at 572. The court was concerned (a) with the fact that the Board had taken no voluntary action to change its freedom-of-choice plan after this Court's decision in Green two years before, id., at 560, (b) with the plan's failure to consider patterns of residential segregation in fixing school zone lines or to use transportation as a desegregation tool, despite the decision in Swann v. Charlotte-Mecklenburg Board of Education, 431 F.2d 138 (CA4 1970), aff'd as modified, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), and (c) with its failure to consider racial factors in zoning, despite the approval thereof in Wanner v. County School Board of Arlington County, 357 F.2d 452 (CA4 1966). 317 F.Supp., at 577—578. The District Court also rejected desegregation plans offered by intervenors and by the petitioners.3
6
A second plan submitted by the Board was also deemed to be unsatisfactory in certain respects. Nonetheless, on August 17 the court found its adoption on an interim basis for 1970—1971 to be necessary, since the school year was to begin in two weeks.4 Id., at 578. The court directed the defendants to file within 90 days a report setting out the steps taken 'to create a unitary system . . . and . . . the earliest practical and reasonable date that any such system could be put into effect.' Ibid.
7
The Board then submitted three other desegregation plans. Hearings were held on these and on still another plan submitted by the petitioners.5 On April 5, 1971, the court adopted the Board's third plan, which involved pupil reassignments and extensive transportation within the city. 325 F.Supp. 828 (ED Va.1971).6
8
Meanwhile, the Board had moved for leave to make the school boards and governing bodies of adjoining Chesterfield and Henrico Counties, as well as the Virginia State Board of Education, parties to the litigation, and to serve upon these entities a third-party complaint to compel them to take all necessary action to bring about the consolidation of the systems and the merger of the boards. The court denied the defense motion for the convening of a three-judge court. 324 F.Supp. 396 (ED Va.1971).
9
On January 10, 1972, the court ordered into effect a plan for the integration of the Richmond schools with those of Henrico and Chesterfield Counties. 338 F.Supp. 67 (ED Va.1972). On appeal, the Fourth Circuit, sitting en banc, reversed, with one judge dissenting, holding that state-imposed segregation had been 'completely removed' in the Richmond school district and that the consolidation was not justified in the absence of a showing of some constitutional violation in the establishment and maintenance of these adjoining and separate school districts. 462 F.2d 1058, 1069 (1972). We granted cross-petitions for writs of certiorari. 409 U.S. 1124, 93 S.Ct. 936, 35 L.Ed.2d 255 (1973). After argument, the Court of Appeals' judgment was affirmed by an equally divided Court. Richmond School Board v. State Board of Education, 412 U.S. 92, 93 S.Ct. 1952, 36 L.Ed.2d 771 (1973).
II
10
The petitioners' request for a significant award of attorneys' fees was included, as has been noted, in their pivotal motion of March 10, 1970. App. 25a. That application was renewed on July 2. Id., at 66a. The District Court first suggested, by letter to the parties, that they attempt to reach agreement as to fees. When agreement was not reached, the court called for supporting material and briefs.7 In due course the court awarded counsel fees in the amount of $43,355 for services rendered from March 10, 1970, to January 29, 1971, and expenses of $13,064.65. 53 F.R.D. 28, 43—44 (ED Va.1971).
11
Noting the absence at that time of any explicit statutory authorization for an award of fees in school desegregation actions, id., at 34, the court based the award on two alternative grounds rooted in its general equity power.8 First, the court observed that prior desegregation decisions demonstrated the propriety of awarding counsel fees when the evidence revealed obstinate noncompliance with the law or the use of the judicial process for purposes of harassment or delay in affording rights clearly owed.9 Applying the test enunciated by the Fourth Circuit in 345 F.2d, at 321, the court sought to determine whether 'the bringing of the action should have been unnecessary and was compelled by the school board's unreasonable, obdurate obstinacy.' Examining the history of the litigation, the court found that at least since 1968 the Board clearly had been in default in its constitutional duty as enunciated in Green. While reluctant to characterize the litigation engendered by that default as unnecessary in view of the ongoing development of relevant legal standards, the court observed that the actions taken and the defenses asserted by the Board had caused an unreasonable delay in the desegregation of the schools and, as a result, had caused the plaintiffs to incur substantial expenditures of time and money to secure their constitutional rights.10
12
As an alternative basis for the award, the District Court observed that the circumstances that persuaded Congress to authorize by statute the payment of counsel fees under certain sections of the Civil Rights Act of 196411 were present in even greater degree in school desegregation litigation. In 1970—1971, cases of this kind were characterized by complex issues pressed on behalf of large classes and thus involved substantial expenditures of lawyers' time with little likelihood of compensation or award of monetary damages. If forced to bear the burden of attorneys' fees, few aggrieved persons would be in a position to secure their and the public's interests in a nondiscriminatory public school system. Reasoning from this Court's per curiam decision in Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968), the District Judge held that plaintiffs in actions of this kind were acting as private attorneys general in leading school boards into compliance with the law, thereby effectuating the constitutional guarantee of nondiscrimination and rendering appropriate the award of counsel fees. 53 F.R.D., at 41—42.
13
The Court of Appeals, in reversing, emphasized that the Board was not operating 'in an area where the practical methods to be used were plainly illuminated or where prior decisions had not left a 'lingering doubt' as to the proper procedure to be followed,' particularly in the light of uncertainties existing prior to this Court's then impending decision in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). 472 F.2d, at 327. It felt that by the failure of Congress to provide specifically for counsel fees 'in a statutory scheme designed to further a public purpose, it may be fairly accepted that it did so purposefully,' and that 'if such awards are to be made to promote the public policy expressed in legislative action, they should be authorized by Congress and not by the courts.' Id., at 330—331.
14
After initial submission of the case to the Court of Appeals, but prior to its decision, the Education Amendments of 1972, of which § 718 of Title VII of the Emergency School Aid Act is a part, became law. Section 718, 20 U.S.C. § 1617 (1970 ed., Supp. II), grants authority to a federal court to award a reasonable attorney's fee when appropriate in a school desegregation case.12 The Court of Appeals, sitting en banc, then heard argument as to the applicability of § 718 to this and other litigation.13 In the other cases it held that only legal services rendered after July 1, 1972, the effective date of § 718, see Pub.L. 92—318, § 2(c)(1), 86 Stat. 236, were compensable under that statute. Thompson v. School Board of City of Newport News, 472 F.2d 177 (CA4 1972). In the instant case the court held that, because there were no orders pending or appealable on either May 26, 1971, when the District Court made its fee award, or on July 1, 1972, when the statute became effective, § 718 did not sustain the allowance of counsel fees.
III
15
In Northcross v. Board of Education of Memphis City Schools, 412 U.S. 427, 428, 93 S.Ct. 2201, 2202, 37 L.Ed.2d 48 (1973), we held that under § 718 'the successful plaintiff 'should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." We decide today a question left open in Northcross, namely, 'whether § 718 authorizes an award of attorneys' fees insofar as those expenses were incurred prior to the date that that section came into effect.' Id., at 429 n. 2, 93 S.Ct., at 2202.
16
The District Court in this case awarded counsel fees for services rendered from March 10, 1970, when petitioners filed their motion for further relief, to January 29, 1971, when the court declined to implement the plan proposed by the petitioners. It made its award on May 26, 1971, after it had ordered into effect the noninterim desegregation plan which it had approved. The Board appealed from that award, and its appeal was pending when Congress enacted § 718. The question, properly viewed, then, is not simply one relating to the propriety of retroactive application of § 718 to services rendered prior to its enactment, but rather, one relating to the applicability of that section to a situation where the propriety of a fee award was pending resolution on appeal when the statute became law.
17
This Court in the past has recognized a distinction between the application of a change in the law that takes place while a case is on direct review on the one hand, and its effect on a final judgment14 under collateral attack,15 on the other hand. Linkletter v. Walker, 381 U.S. 618, 627, 85 S.Ct. 1731, 1736, 14 L.Ed.2d 601 (1965). We are concerned here only with direct review.
18
We anchor our holding in this case on the principle that a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary.
19
The origin and the justification for this rule are found in the words of Mr. Chief Justice Marshall in United States v. Schooner Peggy, 1 Cranch 103, 2 L. Ed. 49 (1801):
20
'It is in the general true that the province of an appellate court is only to enquire whether a judgment when rendered was erroneous or not. But if subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional . . . I know of no court which can contest its obligation. It is true that in mere private cases between individuals, a court will and ought to struggle hard against a construction which will, by a retrospective operation, affect the rights of parties, but in great national concerns . . . the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside.' Id., at 110.16
21
In the wake of Schooner Peggy, however, it remained unclear whether a change in the law occurring while a case was pending on appeal was to be given effect only where, by its terms, the law was to apply to pending cases, as was true of the convention under consideration in Schooner Peggy, or, conversely, whether such a change in the law must be given effect unless there was clear indication that it was not to apply in pending cases. For a very long time the Court's decisions did little to clarify this issue.17
22
Ultimately, in Thorpe v. Housing Authority of City of Durham, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969), the broader reading of Schooner Peggy was adopted, and this Court ruled that 'an appellate court must apply the law in effect at the time it renders its decision.' Id., at 281, 89 S.Ct., at 526. In that case, after the plaintiff Housing Authority had secured a state court eviction order, and it had been affirmed by the Supreme Court of North Carolina, Housing Authority of the City of Durham v. Thorpe, 267 N.C. 431, 148 S.E.2d 290 (1966), and this Court had granted certiorari, 385 U.S. 967, 87 S.Ct. 515, 17 L.Ed.2d 432 (1966), the Department of Housing and Urban Development ordered a new procedural prerequisite for an eviction. Following remand by this Court for such further proceedings as might be appropriate in the light of the new directive, 386 U.S. 670, 87 S.Ct. 1244, 18 L.Ed.2d 394 (1967), the state court adhered to its decision. 271 N.C. 468, 157 S.E.2d 147 (1967).18 This Court again granted certiorari. 390 U.S. 942, 88 S.Ct. 1045, 19 L.Ed.2d 1130 (1968). Upon review, we held that, although the circular effecting the change did not indicate whether it was to be applied to pending cases or to events that had transpired prior to its issuance,19 it was, nonetheless, to be applied to anyone residing in the housing project on the date of its promulgation. The Court recited the language in Schooner Peggy, quoted above, and noted that that reasoning 'has been applied where the change was constitutional, statutory, or judicial,' 393 U.S., at 282, 89 S.Ct., at 526 (footnotes omitted), and that it must apply 'with equal force where the change is made by an administrative agency acting pursuant to legislative authorization.' Ibid. Thorpe thus stands for the proposition that even where the interviewing law does not explicitly recite that it is to be applied to pending cases, it is to be given recognition and effect.
23
Accordingly, we must reject the contention that a change in the law is to be given effect in a pending case only where that is the clear and stated intention of the legislature.20 While neither our decision in Thorpe nor our decision today purports to hold that courts must always thus apply new laws to pending cases in the absence of clear legislative direction to the contrary,21 we do note that insofar as the legislative history of § 718 is supportive of either position,22 it would seem to provide at least implicit support for the application of the statute of pending cases.23
B
24
The Court in Thorpe, however, observed that exceptions to the general rule that a court is to apply a law in effect at the time it renders its decision 'had been made to prevent manifest injustice,' citing Greene v. United States, 376 U.S. 149, 84 S.Ct. 615, 11 L.Ed.2d 576 (1964).24 Although the precise category of cases to which this exception applies has not been clearly delineated, the Court in Schooner Peggy suggested that such injustice could result 'in mere private cases between individuals,' and implored the courts to 'struggle hard against a construction which will, by a retrospective operation, affect the rights of parties.' 1 Cranch, at 110, 2 L.Ed. 49. We perceive no such threat of manifest injustice present in this case. We decline, accordingly, to categorize it as an exception to Thorpe's general rule.
25
The concerns expressed by the Court in Schooner Peggy and in Thorpe relative to the possible working of an injustice center upon (a) the nature and identity of the parties, (b) the nature of their rights, and (c) the nature of the impact of the change in law upon those rights.
26
In this case the parties consist, on the one hand, of the School Board, a publicly funded governmental entity, and, on the other, a class of children whose constitutional right to a nondiscriminatory education has been advanced by this litigation. The District Court rather vividly described what it regarded as the disparity in the respective abilities of the parties adequately to present and protect their interests.25 Moreover, school desegregation litigation is of a kind different from 'mere private cases between individuals.' With the Board responsible for the education of the very students who brought suit against it to require that such education comport with constitutional standards, it is not appropriate to view the parties as engaged in a routine private lawsuit. In this litigation the plaintiffs may be recognized as having rendered substantial service both to the Board itself, by bringing it into compliance with its constitutional mandate, and to the community at large by securing for it the benefits assumed to flow from a nondiscriminatory educational system.26 Brown v. Board of Education, 347 U.S., at 494, 74 S.Ct., at 691.
27
In Northcross we construed, as in pari passu, 718 and § 204(b) of the Civil Rights Act of 1964, 42 U.S.C. § 2000a—3(b), providing for an award of counsel fees to a successful plaintiff under the public accommodation subchapter of that Act. Our discussion of the latter provision in Piggie Park is particularly apt in the context of school desegregation litigation:
28
'When the Civil Rights Act of 1964 was passed, it was evident that enforcement would prove difficult and that the Nation would have to rely in part upon private litigation as a means of securing broad compliance with the law. A Title II suit is thus private in form only. When a plaintiff brings an action under that Title, he cannot recover damages. If he obtains an injunction, he does so not for himself alone but also as a 'private attorney general,' vindicating a policy that Congress considered of the highest priority. If successful plaintiffs were routinely forced to bear their own attorneys' fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal courts.' 390 U.S., at 401—402, 88 S.Ct. at 966 (footnotes omitted).
29
Application of § 718 to such litigation would thus appear to have been anticipated by Mr. Chief Justice Marshall in Schooner Peggy when he noted that in 'great national concerns . . . the court must decide according to existing laws.' 1 Cranch, at 110, 2 L.Ed. 49. Indeed, the circumstances surrounding the passage of § 718, and the numerous expressions of congressional concern and intent with respect to the enactment of that statute, all proclaim its status as having to do with a 'great national concern.'27
30
The second aspect of the Court's concern that injustice may arise from retrospective application of a change in law relates to the nature of the rights effected by the change. The Court has refused to apply an intervening change to a pending action where it has concluded that to do so would infringe upon or deprive a person of a right that had matured or become unconditional. See Greene v. United States, 376 U.S., at 160, 84 S.Ct., at 621; Claridge Apartments Co. v. Commissioner of Internal Revenue, 323 U.S. 141, 164, 65 S.Ct. 172, 185, 89 L.Ed. 139 (1944); Union Pacific R. Co. v. Laramie Stock Yards Co., 231 U.S. 190, 199, 34 S.Ct. 101, 102, 58 L.Ed. 179 (1913). We find here no such matured or unconditional right affected by the application of § 718. It cannot be claimed that the publicly elected School Board had such a right in the funds allocated to it by the taxpayers. These funds were essentially held in trust for the public, and at all times the Board was subject to such conditions or instructions on the use of the funds as the public wished to make through its duly elected representatives.
31
The third concern has to do with the nature of the impact of the change in law upon existing rights, or, to state it another way, stems from the possibility that new and unanticipated obligations may be imposed upon a party without notice or an opportunity to be heard. In Thorpe, we were careful to note that by the circular the 'respective obligations of both HUD and the Authority under the annual contributions contract remain unchanged. . . . Likewise, the lease agreement between the Authority and petitioner remains inviolate.' 393 U.S., at 279, 89 S.Ct., at 524. Here no increased burden was imposed since § 718 did not alter the Board's constitutional responsibility for providing pupils with a nondiscriminatory education. Also, there was no change in the substantive obligation of the parties. From the outset, upon the filing of the original complaint in 1961, the Board engaged in a conscious course of conduct with the knowledge that, under different theories, discussed by the District Court and the Court of Appeals, the Board could have been required to pay attorneys' fees. Even assuming a degree of uncertainty in the law at that time regarding the Board's constitutional obligations, there is no indication that the obligation under § 718, if known, rather than simply the common-law availability of an award, would have caused the Board to order its conduct so as to render this litigation unnecessary and thereby preclude the incurring of such costs.
32
The availability of § 718 to sustain the award of fees against the Board therefore merely serves to create an additional basis or source for the Board's potential obligation to pay attorney's fees. It does not impose an additional or unforeseeable obligation upon it.
33
Accordingly, upon considering the parties, the nature of the rights, and the impact of § 718 upon those rights, it cannot be said that the application of the statute to an award of fees for services rendered prior to its effective date, in an action pending on that date, would cause 'manifest injustice,' as that term is used in Thorpe, so as to compel an exception of the case from the rule of Schooner Peggy.
C
34
Finally, we disagree with the Court of Appeals' conclusion that § 718 by its very terms is inapplicable to the petitioners' request for fees 'because there was no 'final order' pending unresolved on appeal,' 472 F.2d, at 331, when § 718 became effective, or on May 26, 1971, when the District Court made its award.
35
It is true that when the District Court entered its order, it was at least arguable that the petitioners had not yet become 'the prevailing party,' within the meaning of § 718. The application for fees had been included in their March 10, 1970, motion for further relief in the light of developments indicated by the decision two years before in Green. The Board's first plan was disapproved by the District Court on June 26. Its second plan was also disapproved but was ordered into effect on an interim basis on August 17 for the year about to begin. The third plan was ultimately approved on April 5, 1971, and the order allowing fees followed shortly thereafter.
36
Surely, the language of § 718 is not to be read to the effect that a fee award must be made simultaneously with the entry of a desegregation order. The statute, instead, expectedly makes the existence of a final order a prerequisite to the award. The unmanageability of a requirement of simultaneity is apparent when one considers the typical course of litigation in a school desegregation action. The history of this litigation from 1970 to 1972 is illustrative. The order of June 20, 1970, suspending school construction, the order of August 17 of that year placing an interim plan in operation, and the other of April 5, 1971, ordering the third plan into effect, all had become final when the fee award was made on May 26, 1971.28 Since most school cases can be expected to involve relief of an injunctive nature that must prove its efficacy only over a period of time and often with frequent modifications, many final orders may issue in the course of the litigation. To delay a fee award until the entire litigation is concluded would work substantial hardship on plaintiffs and their counsel, and discourage the institution of actions despite the clear congressional intent to the contrary evidenced by the passage of § 718. A district court must have discretion to award fees and costs incident to the final disposition of interim matters. See 6 J. Moore, Federal Practice 54.70(5) (1974 ed.). Further, the resolution of the fee issue may be a matter of some complexity and require, as here, the taking of evidence and briefing. It would therefore be undesirable to delay the implementation of a desegregation plan in order to resolve the question of fees simultaneously. The District Court properly chose not to address itself to the question of the award until after it had approved the noninterim plan for achievement of the unitary school system in Richmond on April 5, 1971.
37
We are in agreement, however, with the dissenting judge of the Court of Appeals when he observed, 472 F.2d, at 337, that the award made by the District Court for services from March 10, 1970, to- January 29, 1971, did not precisely fit § 718's requirement that the beneficiary of the fee order be 'the prevailing party.' In January 1971 the petitioners had not yet 'prevailed' and realistically did not do so until April 5. Consequently, any fee award was not appropriately to be made until April 5. Thereafter, it may include services at least through that date. This, of course, will be attended to on remand.
38
Accordingly, we hold that § 718 is applicable to the present situation, and that in this case the District Court in its discretion may allow the petitioners reasonable attorneys' fees for services rendered from March 10, 1970, to or beyond April 5, 1971. The judgment of the Court of Appeals is vacated and the case is remanded for further proceedings consistent with this opinion.
39
It is so ordered.
40
Vacated and remanded.
41
Mr. Justice MARSHALL and Mr. Justice POWELL took no part in the consideration or decision of this case.
1
See 317 F.2d 429 (CA4 1963). Before trial, one pupil-plaintiff was admitted to the school of his choice, and the court ordered admission of the remaining 10. The District Court found that, in general, during the 1961—1962 school year, pupil assignments in Richmond were being made on the basis of dual attendance zones; that promotions were controlled by a 'feeder' system whereby pupils initially assigned to Negro schools were promoted routinely only to Negro schools; and that, in the handling of some transfer requests from Negro pupils, the students were required to meet criteria to which white students of the same scholastic aptitude were not subject. The court declined, however, to grant general injunctive relief and ordered only the admission of the 10 pupils.
The Court of Appeals reversed in part. It held that not only were the individual minor plaintiffs entitled to relief, but that they were entitled to an injunction, on behalf of others of the class they represented and who were similarly situated, against the continuation of the discriminatory system and practices that were found to exist. Id., at 438.
2
Under the approved plan, the Board undertook steps 'to eliminate a dual school system in the assignment of pupils' and to assure that opportunities were provided 'for white children and Negro children to associate on equal terms in the public schools.' App. 21a—22a. Generally, the plan permitted any child to attend any school in the city at his proper grade. The specific steps to be taken included (a) action to correct inequality in enrollment in relationship to capacity where schools in close proximity to each other had significant enrollment differences, (b) efforts to acquaint pupils in all schools with opportunities in other schools, and (c) the planning and creation of citywide centers, including workshops, institutes, and seminars, serving pupils from all areas of the city. Id., at 22a—23a. In addition, the Board undertook to insure that the 'pattern of assignment of teachers and other professional staff among the various schools of the system will not be such that schools are identifiable as intended for students of a particular race, color or national origin, or such that teachers or other professional staff of a particular race are concentrated in those schools where all, or the majority, of the students are of that race.' Id., at 20a. Finally, the Board undertook to insure that the program for construction of new schools or additions to existing schools would 'not be designed to perpetuate, maintain, or support racial segregation.' Id., at 23a.
3
The court rejected the petitioners' plan for utilizing contiguous zoning and pairing, satellite zoning, and noncontiguous pairing, together with the use of school and public transportation, because it felt that the lack of immediately available transportation facilities would preclude the plan's operation for the opening of the 1970—1971 school year. It noted that it otherwise found the plan to be reasonable and, if adopted, that it would result in a unitary system. 317 F.Supp. 555, 572 and 576 (ED Va.1970). The court suggested that Richmond could not be desegregated without employment of techniques suggested by the petitioners and observed, 'It would seem to the Court highly reasonable to require that the defendant school board take reasonably immediate steps toward this end.' Id., at 575.
4
The interim plan included contiguous and satellite zoning, pairing, and some public transportation, principally of those pupils who were indigent. The problems that continued to concern the court were, most importantly, the fact that under the plan a large number of the district's elementary students would continue to attend schools that would be 90% or more Negro, while at the same time four elementary schools would remain all white; in addition, two high schools and certain secondary schools would continue to be racially identifiable. Id., at 572—576.
5
Under Plan I only proximal geographic zoning was to be used in making pupil assignments. This meant simply that a pupil would be assigned to the school nearest his home without regard to the resulting racial composition of that school. Although recognizing the desirability of neighborhood schools, the court rejected this plan
in view of the existence of Richmond housing patterns previously determined to have been fostered by governmental action. At the elementary and middle levels, this would have resulted in over half the students being assigned to schools that were racially identifiable; at the high school level almost 39% of the district's white pupils would have been isolated in one 97% white school. 325 F.Supp. 828, 833 (ED Va.1971).
Plan II, which the Board most actively supported, was held unacceptable in that it embraced a continuation of the 1970—1971 isterim plan and did little to integrate the elementary schools. The plan involved the use of zoning, as did Plan I, and contiguous pairing whereby schools in adjoining zones would have been consolidated. Id., at 834.
Plan III, which the court ordered into effect, called for extensive busing of students, proximal geographic zoning, clusters, satellites, and faculty racial balance. In addition, the elementary, middle and high schools were to have a minority-majority student ratio under which each group's projected enrollment in a particular school was to be at least half of the group's projected citywide ratio. Id., at 834—844.
The court also rejected the petitioners' plan, finding that Plan III resulted in 'a narrower spread' of minority-majority student ratios in the various schools. Id., at 844—846.
6
Meanwhile, the District Court (a) on January 8, 1971, denied a motion made by some of the defendants that the judge disqualify himself because of personal bias, 324 F.Supp. 439 (ED Va.1971); (b) on January 29 denied the petitioners' motion to order implementation of their proposed plan and also the Board's motion to modify the existing injunction restraining it from undertaking any new construction planning, 324 F.Supp. 456 (ED Va.1971); and (c) on February 10 denied a motion for summary judgment as to certain defendants with respect to costs, fees, and damages, 324 F.Supp. 401 (ED Va.1971). See also 315 F.Supp. 325 (ED Va.1970); 51 F.R.D. 139 (ED Va.1970).
7
Petitioners initially suggested $46,820 in fees and $13,327.56 in expenses, a total of $60,147.56. App. 94a—95a.
8
The court discussed, 53 F.R.D. 28, 34—36 (ED Va.1971), but did not rely on, the 'common fund' theory under which an individual litigant's success confers a substantial benefit on an ascertainable class and the exercise of the court's equitable discretion to allow a fee results in spreading the cost the litigant has incurred among those who have benefited by his efforts. See Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157 (1882); Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939).
The court felt, however, that there were other grounds on which an award of counsel fees could be based. It referred to Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970), where this Court, recognizing the rule that attorneys' fees are not ordinarily recoverable as costs, nonetheless noted that exceptions to this rule existed 'for situations in which overriding considerations indicate the need for such a recovery.' Id., at 391—392, 90 S.Ct., at 625. There the Court approved an award of fees to successful shareholder plaintiffs in a suit 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, 15 U.S.C. § 78n(a). It was said: 'The fact that this suit has not yet produced, and may never produce, a monetary recovery from which the fees could be paid does not preclude an award based on this rationale.' 396 U.S., at 392, 90 S.Ct., at 625. See also Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973).
9
See Brewer v. School Board of the City of Norfolk, 456 F.2d 943, 951—952 (CA4), cert. denied, 406 U.S. 933, 92 S.Ct. 1778, 32 L.Ed.2d 136 (1972); Nesbit v. Statesville City Board of Education, 418 F.2d 1040, 1043 (CA4 1969); Williams v. Kimbrough, 415 F.2d 874, 875 (CA5 1969), cert. denied, 396 U.S. 1061, 90 S.Ct. 753, 24 L.Ed.2d 755 (1970); Rolfe v. County Board of Education of Lincoln County, 391 F.2d 77, 81 (CA6 1968); Clark v. Board of Education of Little Rock School District, 369 F.2d 661, 670—671 (CA8 1966); Griffin v. County School Board of Prince Edward County, 363 F.2d 206 (CA4), cert. denied, 385 U.S. 960, 87 S.Ct. 395, 17 L.Ed.2d 305 (1966); Bell v. School Board of Powhatan County, 321 F.2d 494, 500 (CA4 1963).
10
The District Court stated:
'At each stage of the proceedings the School Board's position has been that, given the choice between desegregating the schools and committing a contempt of court, they would choose the first, but that in any event desegregation would only come about by court order.
'It is no argument to the contrary that political realities may compel school administrators to insist on integration by judicial decree and that this is the ordinary, usual means of achieving compliance with constitutional desegregation standards. If such considerations lead parties to mount defenses without hope of success, the judicial process is nonetheless imposed upon and the plaintiffs are callously put to unreasonable and unnecessary expense.' 53 F.R.D., at 39.
11
Title 42 U.S.C. § 2000a—3(b) authorizes an allowance of a reasonable attorney's fee to a prevailing party, other than the United States, in an action under the public accommodation subchapter of the Civil Rights Act of 1964. Similarly, 42 U.S.C. § 2000e—5(k) authorizes an allowance of a reasonable attorney's fee to a prevailing party, other than the Equal Employment Opportunity Commission or the United States, in an action under the equal employment opportunity subchapter of that Act.
12
'§ 1617. Attorney fees.
'Upon 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), for failure to comply with any provision of this chapter or for discrimination on the basis of race, color, or national origin in violation of Title VI of the Civil Rights Act of 1964, or the fourteenth amendment to the Constitution of the United States as they pertain 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.'
13
The fee issue had been argued in the Court of Appeals on March 7, 1972. The Education Amendments of 1972 were approved by the President on June 23. The argument before the en banc court took place on October 2.
14
By final judgment we mean one where 'the availability of appeal' has been exhausted or has lapsed, and the time to petition for certiorari has passed. Linkletter v. Walker, 381 U.S. 618, 622, n. 5, 85 S.Ct. 1731, 1734, 14 L.Ed.2d 601 (1965).
15
In Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 374, 60 S.Ct. 317, 319, 84 L.Ed. 329 (1940), the Court noted that the effect of a subsequent ruling of invalidity on a prior final judgment under collateral attack is subject to no fixed 'principle of absolute retroactive invalidity' but depends upon consideration of 'particular relations . . . and particular conduct.' Questions 'of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination.' Ibid. And in Linkletter it was observed: 'Once the premise is accepted that we are neither required to apply, nor prohibited from applying, a decision retrospectively, we must then 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.' 381 U.S., at 629, 85 S.Ct., at 1738.
See Note, Prospective Overruling and Retroactive Application in the Federal Courts, 71 Yale L.J. 907 (1962); Currier, Time and Change in Judge-Made Law: Prospective Overruling, 51 Va.L.Rev. 201 (1965).
16
Schooner Peggy concerned a condemnation following the seizure of a French vessel by an American ship. The trial court found that the vessel was within French territorial waters at the time of seizure and, hence, was not a lawful prize. On appeal, the Circuit Court reversed, holding that the vessel in fact was on the high seas. A decree was entered accordingly. While the case was pending on appeal to this Court, a convention with France was entered into providing in part: 'Property captured, and not yet definitively condemned, or which may be captured before the exchange of ratifications . . . shall be mutually restored.' 1 Cranch, at 107, 2 L.Ed. 49. This Court reversed, holding that it must apply the terms of the convention despite the propriety of the Circuit Court's decision when it was rendered, and that the vessel was to be restored since, by virtue of the pending appeal, it had not been 'definitively condemned,' id., at 108, 2 L.Ed. 49.
17
In United States v. Chambers, 291 U.S. 217, 54 S.Ct. 434, 78 L.Ed. 763 (1934), the Court held that pending prosecutions, including those on appeal, brought pursuant to the National Prohibition Act were to be dismissed in view of the interim ratification of the Twenty-first Amendment, absent inclusion of a saying clause. In Carpenter v. Wabash R. Co., 309 U.S. 23, 60 S.Ct. 416, 84 L.Ed. 558 (1940), the Court, in reliance on Schooner Peggy, held that an amendment to the Bankruptcy Act, effected while the case was pending on petition for writ of certiorari, was to be given effect. The amendment, however, provided explicitly that it was applicable to railroad receiverships then pending in any United States court. In Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 61 S.Ct. 347, 85 L.Ed. 327 (1941), again in reliance on Schooner Peggy, it was held that a federal appellate court, in diversity jurisdiction, must follow a state supreme court decision changing the applicable state law subsequent to the decision in the federal trial court. In Ziffrin, Inc. v. United States, 318 U.S. 73, 63 S.Ct. 465, 87 L.Ed. 621 (1943), the Court held that an amendment to the Interstate Commerce Act, made after the hearing upon an application for a permit to continue contract carrier operations, was to be given effect. 'A change in the law between a nisi prius and an appellate decision requires the appellate court to apply the changed law.' Id., at 78, 63 S.Ct., at 469. In United States v. Alabama, 362 U.S. 602, 80 S.Ct. 924, 4 L.Ed.2d 982 (1960), the District Court had dismissed an action under the Civil Rights Act of 1957, 42 U.S.C. § 1971(c), brought by the United States against the State of Alabama and others and did so with respect to Alabama on the ground that the Act did not authorize the action against the State. While the case was pending after a grant of certiorari, the Civil Rights Act of 1960, 74 Stat. 86, was passed, expressly authorizing an action of that kind against a State. The Court applied the new statute without discussion of the legislative history and remanded the case with instructions to reinstate the action.
See also Freeborn v. Smith, 2 Wall. 160, 17 L.Ed. 922 (1865); Moores v. National Bank, 104 U.S. 625, 26 L.Ed. 870 (1882), where a state statute of limitations was construed by the State Supreme Court in a way contrary to the construction given theretofore by the lower federal court, and this Court followed the later construction; Stephens v. Cherokee Nation, 174 U.S. 445, 19 S.Ct. 722, 43 L.Ed. 1041 (1899), where the Court upheld a federal statute, containing retrospectivity language and conferring jurisdiction upon this Court over cases on review of actions of the Dawes Commission, enacted after rulings below that decrees of the courts in the Indian territories were final; Dinsmore v. Southern Express Co., 183 U.S. 115, 22 S.Ct. 45, 46 L.Ed. 111 (1901), where the Court, relying upon Schooner Peggy, applied a statute, enacted while the case was pending on certiorari, to affirm the judgment of the lower court; Watts, Watts & Co. v. Unione Austriaca, 248 U.S. 9, 39 S.Ct. 1, 63 L.Ed. 100 (1918); Dorchy v. Kansas, 264 U.S. 286, 289, 44 S.Ct. 323, 324, 68 L.Ed. 686 (1924); Missouri ex rel. Wabash R. Co. v. Public Service Comm'n, 273 U.S. 126, 47 S.Ct. 311, 71 L.Ed. 575 (1927); Sioux County v. National Surety Co., 276 U.S. 238, 240, 48 S.Ct. 239, 72 L.Ed. 547 (1928); Patterson v. Alabama, 294 U.S. 600, 607, 55 S.Ct. 575, 578, 79 L.Ed. 1082 (1935).
18
The Supreme Court of North Carolina held that since all 'critical events' had occurred prior to the date of the circular, '(t)he rights of the parties had matured and had been determined before the directive was issued.' 271 N.C., at 470, 157 S.E.2d, at 149.
19
In our first Thorpe opinion, however, we did note: 'While the directive provides that certain records shall be kept commencing with the date of its issuance, there is no suggestion that the basic procedure it prescribes is not to be followed in all eviction proceedings that have not become final.' Thorpe v. Housing Authority of the City of Durham, 386 U.S. 670, 673, 87 S.Ct. 1244, 1246, 18 L.Ed.2d 394 (1967).
20
The Fourth Circuit has declined to apply § 718 to services rendered prior to its enactment on the ground that 'legislation is not to be given retrospective effect to prior events unless Congress has clearly indicated an intention to have the statute applied in that manner.' Thompson v. School Board of the City of Newport News, 472 F.2d 177, 178 (1972). The Fifth Circuit has done the same. Johnson v. Combs, 471 F.2d 84, 86 (1972); Henry v. Clarksdale Municipal Separate School Dist., 480 F.2d 583, 585 (1973).
21
Where Congress has expressly provided, or the legislative history had indicated, that legislation was to be given only prospective effect, the courts, in the absence of any attendant constitutional problem, generally have followed that lead. See, for example, Goldstein v. California, 412 U.S. 546, 551—552, 93 S.Ct. 2303, 2307, 37 L.Ed.2d 163 (1973); United States v. Thompson, 356 F.2d 216, 227 n. 12 (CA2 1965), cert. denied, 384 U.S. 964, 86 S.Ct. 1591, 16 L.Ed.2d 675 (1966).
22
In Johnson v. Combs, the Fifth Circuit characterized the legislative history of § 718 as 'inconclusive,' 471 F.2d, at 87. In Thompson v. School Board of the City of Newport News, the Fourth Circuit rejected the view that the legislative history could be read to support the applicability of § 718 to services rendered prior to its effective date, but did not find any explicitly stated legislative intent to the contrary. 472 F.2d, at 178.
23
The legislation that ultimately resulted in the passage of § 718 grew out of a bill that would have provided for the establishment of a $15 million federal fund from which successful litigants in school discrimination cases would be paid a reasonable fee 'for services rendered, and costs incurred, after the date of enactment of this Act.' S. 683, § 11(a), 92d Cong., 1st Sess. (1971) (emphasis supplied). The bill was reported out of the Senate Committee on Labor and Public Welfare as S. 1557, with the relevant clause intact in § 11. See S.Rep.No.92—61, pp. 55—56 (1971). The section, however, was stricken in the Senate, 117 Cong.Rec. 11338—11345 (1971), and the present language of § 718 took its place. Id., at 11521—11529 and 11724—11726. The House, among other amendments, deleted all mention of counsel fees. In conference, the fee provision was restored. S.Rep.No.92—798, p. 143 (1972), U.S.Code Cong. & Admin.News 1971, p. 2608.
Thus, while there is no explicit statement that § 718 may be applied to services rendered prior to enactment, we are reluctant specifically to read into the statute the very fee limitation that Congress eliminated.
24
In Greene, the Court held that a claimant's right to recover lost earnings had become final as a result of the prior decision that the claimant had been wrongfully discharged, Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959), and of the District Court's order on remand. Accordingly, the Court ruled that his rights had matured under an earlier Department of Defense regulation, and declined to give retroactive effect to a new regulation that took effect while the claim was being processed. The inequity of a contrary holding was stressed by the Court:
'In a case such as the present, where the Government has acted without authority in causing the discharge of an employee without providing adequate procedural safeguards, we should be reluctant to conclude that a regulation, not explicitly so requiring, conditions restitution on a retrospective determination of the validity of the substantive reasons for the Government action—reasons which the employee was not afforded an adequate opportunity to meet or rebut at the time of his discharge.' 376 U.S., at 162, 84 S.Ct., at 622.
As noted, the Court, in Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969), characterized Greene as an exception to the general rule of Schooner Peggy, 'made to prevent manifest injustice.' Id., at 282, and n. 43, 89 S.Ct., at 526.
25
'(F)rom the beginning the resources of opposing parties have been disproportionate. Ranged against the plaintiffs have been the legal staff of the City Attorney's office and retained counsel highly experienced in trial work. . . . Few litigants—even the wealthiest—come into court with resources at once so formidable and so suited to the litigation task at hand. . . .
'Moreover, this sort of case is an enterprise on which any private individual should shudder to embark. . . . To secure counsel willing to undertake the job of trial . . . necessarily means that someone—plaintiff or make a great sacrifice unless equity intervenes.' 53 F.R.D., at 40.
26
See Dept. of Health, Education, and Welfare, J. Coleman et al., Equality of Educational Opportunity (1966); United States Commission on Civil Rights, Racial Isolation in the Public Schools (1967). See also Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972).
27
It is particularly in the area of desegregation that this Court in Newman and in Northcross recognized that, by their suit, plaintiffs vindicated a national policy of high priority. Other courts have given explicit and implicit recognition to the priority placed on desegregation litigation by the Congress. See Knight v. Auciello, 453 F.2d 852, 853 (CA1 1972) and Lee v. Southern Home Sites Corp., 444 F.2d 143, 145 (CA5 1971) (housing); Johnson v. Combs, 471 F.2d, at 86 (schools); Miller v. Amusement Enterprises, Inc., 426 F.2d 534, 537—538 (CA5 1970) (public accommodation); Cooper v. Allen, 467 F.2d 836, 841 (CA5 1972) (employment).
28
Since the finality of these orders is not contested, we are not called upon to construe the finality language as it appears in § 718. The only court that has dealt with the issue under this statute has held that the most suitable test for determining finality is appealability under 28 U.S.C. § 1291. See Johnson v. Combs, 471 F.2d, at 87.
This Court has been inclined to follow a 'pragmatic approach' to the question of finality. Brown Shoe Co. v. United States, 370 U.S. 294, 306, 82 S.Ct. 1502, 1513, 8 L.Ed.2d 510 (1962). And we have said that a final decision, within the meaning of § 1291, 'does not necessarily mean the last order possible to be made in a case.' Gillespie v. United States Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 311, 13 L.Ed.2d 199 (1964); see Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949).
Without wishing affirmatively to construe the statute in detail in the absence of consideration of the issue by the lower courts, we venture to say only that the entry of any order that determines substantial rights of the parties may be an appropriate occasion upon which to consider the propriety of an award of counsel fees in school desegregation cases. See C. Wright, Federal Courts § 101 (2d ed. 1970).
| 56
|
417 U.S. 1
94 S.Ct. 2074.
40 L.Ed.2d 612
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.FOOD STORE EMPLOYEES UNION, LOCAL 347, etc.
No. 73—370.
Argued March 18 and 19, 1974.
Decided May 20, 1974.
Syllabus
After finding that Heck's Inc. had engaged in pervasive unfair labor practices, the National Labor Relations Board (NLRB) issued a cease-and-desist order against it, but rejected the argument of respondent union, the charging party, for additional remedies, including reimbursement of litigation expenses and excess organizational costs incurred as a result of Heck's illegal conduct. The Court of Appeals enforced the NLRB's order but remanded the case to the NLRB for further consideration of additional remedies. The NLRB again refused to order reimbursement of litigation expenses and excess organizational costs, reasoning that its 'orders must be remedial, not punitive, and collateral losses are not considered in framing a reimbursement order' and that the Board, not the charging party, is entrusted with primary responsibility to protect the public interest. The Court of Appeals enforced the NLRB's amended order but, concluding that the NLRB had meanwhile in Tiidee Products, Inc., 194 N.L.R.B. 1234, changed its policy, enlarged the NLRB's order by requiring Heck's to '(p)ay to the Union any extraordinary organizational costs which the Union incurred by reason of Heck's policy of resisting organizational efforts and refusing to bargain' and to '(p)ay to the Board and the Union the costs and expenses incurred by them' in connection with the litigation. Sections 10(e) and (f) of the National Labor Relations Act authorize courts of appeals to 'make and enter a decree . . . modifying and enforcing as so modified' an NLRB order. Held: The Court of Appeals, although properly refusing to resolve inconsistencies in the Board's decisions in this case and in Tiidee by accepting Board counsel's rationalizations, erroneously exercised its authority under §§ 10(e) and (f), since it was 'incompatible with the orderly function of the process of judicial review' (NLRB v. Metropolitan Life Ins. Co., 380 U.S. 438, 444, 85 S.Ct. 1061, 13 L.Ed.2d 591) for that court to enlarge the Heck's order without first affording the NLRB an opportunity to evaluate this case in the light of the policy enunciated in Tiidee and to decide whether that policy should be applied retroactively. Pp. 8—11.
155 U.S.App.D.C. 101, 476 F.2d 546, reversed and remanded.
Daniel M. Friedman, Washington, D.C., for petitioner.
Mozart G. Ratner, Washington, D.C., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The National Labor Relations Board refused to include, in a cease-and-desist order against Heck's Inc., a provision sought by respondent union, as charging party, that Heck's reimburse respondent's litigation expenses and excess organizational costs incurred as a result of Heck's unlawful conduct. The Board's stated reason was that 'it would not on balance effectuate the policies of the (National Labor Relations) Act to require reimbursement with respect to such costs in the circumstances here.' Heck's Inc., 191 N.L.R.B. 886, 889 (1971). Respondent prevailed, however, in enforcement and review proceedings in the Court of Appeals for the District of Columbia Circuit. That court enlarged the Board's order by adding provisions, paragraphs 2(e) and (f), that Heck's '(p)ay to the Union any extraordinary organizational costs which the Union incurred by reason of Heck's policy of resisting organizational efforts and refusing to bargain, such costs to be determined at the compliance stage of these proceedings,' and '(p)ay to the Board and the Union the costs and expenses incurred by them in the investigation, preparation, presentation, and conduct of these cases before the National Labor Relations Board and the courts, such costs to be determined at the compliance stage of these proceedings.' 155 U.S.App.D.C. 101, 476 F.2d 546 (1973). We granted certiorari to consider whether the enlargement of this order was a proper exercise of the authority of courts of appeals under §§ 10(e) and (f) of the National Labor Relations Act, as amended, 61 Stat. 146, 29 U.S.C. §§ 160(e) and (f), to 'make and enter a decree . . . modifying, and enforcing as so modified' the order of the Board, 414 U.S. 1062, 94 S.Ct. 567, 38 L.Ed.2d 467 (1973). We reverse.
2
Heck's Inc. operates a chain of discount stores in the Southeast section of the country. Its resistance to union organization has resulted in some 11 proceedings before the National Labor Relations Board.1 This case grew out of its efforts to prevent organization by respondent union of Heck's employees at its store in Clarksburg, West Virginia. The case was twice before the Board. In its first decision, the Board determined that Heck's violated § 8(a) (1) of the Act, 29 U.S.C. § 158(a)(1), by threatening and coercively interrogating employees during respondent's organizational campaign, and by conducting a nonsecret poll to ascertain employee support for the union. Further, the Board found that Heck's 'flagrant repetition' of similar unfair labor practices at its other stores and its 'extensive violations of the Act' in the Clarksburg store justified an inference that Heck's did not entertain any good-faith doubt concerning majority support for respondent union when the company refused to recognize and bargain with the union on the basis of authorization cards signed by a majority of employees. Accordingly, the Board found that Heck's violated §§ 8(a)(5) and (1) of the Act, 29 U.S.C. §§ 158(a) (5) and (1). Finally, because Heck's extensive violations were found to have made a free and fair election impossible, an order directing Heck's to bargain with the union was entered. The Board rejected, however, the union's argument that adequate relief required certain additional remedies, including reimbursement of litigation expenses and excess organizational costs incurred as a result of Heck's unlawful behavior.2 Heck's Inc., 172 N.L.R.B. 2231 n. 2 (1968).
3
The Court of Appeals for the District of Columbia Circuit enforced the Board's order, but remanded to the Board for further consideration of additional remedies including reimbursement of litigation expenses and excess organizational costs. 139 U.S.App.D.C. 383, 433 F.2d 541 (1970).3 On remand, the Board amended its original order to encompass certain supplemental remedies,4 but again refused to order reimbursement of litigation expenses and excess organizational costs.5 191 N.L.R.B. 886. Although the Board found that Heck's unfair labor practices were 'aggravated and pervasive' and that its intransigence had probably caused the union to incur greater litigation expenses and organizational costs, the Board's rationale, previously mentioned, was that the provision would not effectuate the policies of the Act. The Board reasoned that its 'orders must be remedial, not punitive, and collateral losses are not considered in framing a reimbursement order.' Id., at 889 (footnotes omitted).6 Moreover, a charging party's participation in the case is, the Board found, primarily for the purpose of protecting its private interests, whereas the Board has the primary responsibility for protecting the public interest. The Board therefore concluded that, although the public interest might also arguably be served 'in allowing the Charging Party to recover the costs of its participation in this litigation,' that consideration did not 'override the general and well-established principle that litigation expenses are ordinarily not recoverable.' Ibid. (Footnote omitted.)
4
Prior to review of its supplementary decision by the Court of Appeals, the Board issued its decision in Tiidee Products, Inc., 194 N.L.R.B. 1234 (1972), in which the Board ordered reimbursement of litigation expenses in the context of a finding that an employer had engaged in 'frivolous litigations.'7 The Board's opinion in Tiidee reasoned that industrial peace could be best achieved if 'speedy access to uncrowded Board and court dockets (were) available' and therefore that an assessment of legal fees would serve the public interest by 'discourag(ing) future frivolous litigation,' 194 N.L.R.B., at 1236. The Board did not explain why those considerations had not led it to order similar relief in this case. The Court of Appeals therefore concluded in the present case that the Board had abandoned its policy against award of litigation expenses and excess organizational costs,8 stating
5
'Although the Board in its Supplemental Decision in this case has nowhere characterized the litigation as frivolous, it has used the language of 'clearly aggravated and pervasive' misconduct; and in its original opinion it questioned Heck's good faith because of its 'flagrant repetition of conduct previously found unlawful' at other Heck's stores. It would appear that the Board has now recognized that employers who follow a pattern of resisting union organization, and who to that end unduly burden the processes of the Board and the courts, should be obliged, at the very least, to respond in terms of making good the legal expenses to which they have put the charging parties and the Board. We hold that the case before us is an appropriate one for according such relief.' 155 U.S.App.D.C., at 106, 476 F.2d, at 551.
6
The Court of Appeals also viewed Tiidee as the signal of a shift in the Board's attitude toward excess organizational costs. In Tiidee, the Board refused to order reimbursement of excess organizational costs because "no nexus between (the employer's) unlawful conduct" had been proved. Ibid. Since, in the instant case, the Board had indicated that Heck's violations had probably caused respondent to incur excess organizational costs, a nexus was proved and accordingly the court held that respondent was entitled to an order directing reimbursement of organizational costs.
7
In the circumstances of this case, the Court of Appeals, in our view, improperly exercised its authority under §§ 10(e) and (f) to modify Board orders, and the case must therefore be returned to the Board.9 Congress has invested the Board, not the courts, with broad discretion to order a violator 'to take such affirmative action . . . as will effectuate the policies of (the Act).' 29 U.S.C. § 160(c); see, e.g., Golden State Bottling Co., Inc. v. NLRB, 414 U.S. 168, 176, 94 S.Ct. 414, 421, 38 L.Ed.2d 388 (1973). This case does not present the exceptional situation in which crystal-clear Board error renders a remand an unnecessary formality. See NLRB v. Express Publishing Co., 312 U.S. 426, 61 S.Ct. 693, 85 L.Ed. 930 (1941); Communications Workers v. NLRB, 362 U.S. 479, 80 S.Ct. 838, 4 L.Ed.2d 896 (1960). For it cannot be gainsaid that the finding here that Heck's asserted at least 'debatable' defenses to the unfair labor practice charges, whereas objections to the representation election in Tiidee were 'patently frivolous,' might have been viewed by the Board as putting the question of remedy in a different light. We cannot say that the Board, in performing its appointed function of balancing conflicting interests, could not reasonably decide that where 'debatable' defenses are asserted, the public and private interests in affording the employer a determination of his 'debatable' defenses, unfettered by the prospect of bearing his adversary's litigation costs, outweigh the public interest in uncrowded dockets.
8
There are, however, facial inconsistencies between the Board's opinion in this case and the Tiidee decision, and the Court of Appeals therefore correctly declined to resolve those inconsistencies by substituting Board counsel's rationale for that of the Board. 155 U.S.App.D.C., at 107 n. 8, 476 F.2d, at 552 n. 8; see NLRB v. Metropolitan Life Ins. Co., 380 U.S. 438, 444, 85 S.Ct. 1061, 1064, 13 L.Ed.2d 951 (1965); Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168—169, 83 S.Ct. 239, 245 246, 9 L.Ed.2d 207 (1962). The integrity of the administrative process demands no less than that the Board, not its legal representative, exercise the discretionary judgment which Congress has entrusted to it. But since a plausible reconciliation by the Board of the seeming inconsistency was reasonably possible, it was 'incompatible with the orderly function of the process of judicial review.' NLRB v. Metropolitan Life Ins. Co., supra, 380 U.S. at 444, 85 S.Ct. at 1064, for the Court of Appeals to enlarge the Heck's order without first affording the Board an opportunity to clarify the inconsistencies.
9
It is a guiding principle of administrative law, long recognized by this Court, that 'an administrative determination in which is imbedded a legal question open to judicial review does not impliedly foreclose the administrative agency, after its error has been corrected, from enforcing the legislative policy committed to its charge.' FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 145, 60 S.Ct. 437, 442, 84 L.Ed. 656 (1940); see Fly v. Heitmeyer, 309 U.S. 146, 148, 60 S.Ct. 443, 444, 84 L.Ed. 664 (1940); FTC v. Morton Salt Co., 334 U.S. 37, 55, 68 S.Ct. 822, 832, 92 L.Ed. 1196 (1948); FPC v. Idaho Power Co., 344 U.S. 17, 20, 73 S.Ct. 85, 86, 97 L.Ed. 15 (1952); Konigsberg v. State Bar, 366 U.S. 36, 43—44, 81 S.Ct. 997, 1003, 6 L.Ed.2d 105 (1961). Thus, when a reviewing court concludes that an agency invested with broad discretion to fashion remedies has apparently abused that discretion by omitting a remedy justified in the court's view by the factual circumstances, remand to the agency for reconsideration, and not enlargement of the agency order, is ordinarily the reviewing court's proper course. Application of that general principle in this case best respects the congressional scheme investing the Board and not the courts with broad powers to fashion remedies that will effectuate national labor policy. It also affords the Board the opportunity, through additional evidence or findings, to reframe its order better to effectuate that policy. See FPC v. Idaho Power Co., supra, 344 U.S. at 20, 73 S.Ct. at 86; FTC v. Morton Salt Co., supra, 344 U.S. at 55, 68 S.Ct. at 832. Moreover, in this case, if the Court of Appeals correctly read Tiidee as having signaled a change of policy in respect of reimbursement, a remand was necessary, because the Board should be given the first opportunity to determine whether the new policy should be applied retroactively.10
10
The judgment of the Court of Appeals is reversed insofar as paragraphs 2(e) and (f) were added to the Board's order, and the case is remanded to the Court of Appeals with direction that it be remanded to the Board for further proceedings.
11
It is so ordered.
12
Reversed and remanded with direction.
1
The many proceedings are cited in the opinion of the Court of Appeals, 155 U.S.App.D.C. 101, 102 n. 1, 476 F.2d 546, 547 n. 1.
2
the Board also rejected respondent's requests for provisions directing the mailing of notices to employees; either a companywide bargaining order or a shifting of the burden of proof in future cases to require Heck's to demonstrate its good faith in rejecting authorization cards; injunctions under § 10(j) of the Act, 29 U.S.C. § 160(j); increased access to employees; and a 'make-whole' provision directing compensation to employees for collective-bargaining benefits lost as a result of the employer's unlawful conduct.
3
The remand was ordered in light of the Court of Appeals' intervening decision in International Union of Elec., Radio and Mach. Workers v. NLRB, 138 U.S.App.D.C. 249, 426 F.2d 1243 (1970), known as the tiidee Products case, in which the court had remanded for further Board consideration a union's submission that similar supplementary remedies were necessary where an employer's refusal to bargain was found to be 'a clear and flagrant violation of the law,' and its objections to a representation election were determined to be 'patently frivolous.' Id., at 254, 426 F.2d, at 1248.
4
The Board directed Heck's to mail notices of the Board's amended order to the homes of all employees at each of Heck's store locations; to provide the union with reasonable access for a one-year period to bulletin boards and other places where union notices are normally posted; and to provide the union with a list of names and addresses of all employees at all locations, to be kept current for one year.
5
Board also refused to order, as sought by respondent, that notices of the Board's decision be read to assembled groups of employees; that a companywide bargaining order be issued; that the company be required to bargain whenever the union obtained an authorization card majority at other locations; that greater access to employees on company property be granted; and that a 'make-whole' provision for reimbursement of dues and fees, and collective-bargaining benefits, lost as a result of the unlawful refusal to bargain, be ordered.
6
In support of this proposition, the Board relied upon Republic Steel Corp. v. NLRB, 311 U.S. 7, 11—12, 61 S.Ct. 77, 79, 85 L.Ed. 6 (1940), and NLRB v. Gullett Gin Co., 340 U.S. 361, 364, 71 S.Ct. 337, 339, 95 L.Ed. 337 (1951).
7
The Board's decision in Tiidee was issued after supplementary proceedings following a remand from the Court of Appeals. See n. 3, supra. In an opinion filed April 25, 1974, the Court of Appeals, on review of the Board's supplementary decision in Tiidee, enforced as modifed the Board's amended order. International Union of Elec., Radio and Mach. Workers v. NLRB, 163 U.S.App.D.C. 347, 502 F.2d 349.
8
The Court of Appeals made clear that the enlargement of the Board order was based squarely on the Board's change of policy perceived to have been made by Tiidee. The court refused to decide the question argued by respondent union that, independently of Tiidee, an order of reimbursement should be directed. The Court of Appeals said:
'There are, it seems to us, obvious difficulties (in relying upon the subsidiary role of the charging party as a basis for denial of litigation expenses), certainly in the case of an employer who appears to look upon litigation as a convenient means of delaying—and thereby perhaps avoiding—the fatal day of union recognition and collective bargaining. We need not pursue those difficulties in detail, however, for the reason that the Board itself has subsequently departed from the rationale upon which its refusal of litigation expenses in this case is based.' 155 U.S.App.D.C., at 105, 476 F.2d, at 550 (emphasis added).
9
We thus have no occasion at this time to address the question whether the Board's broad powers under § 10(c), 29 U.S.C. § 160(c), to fashion remedies include power to order reimbursement of litigation expenses and excess organizational costs.
10
Appellate courts ordinarily apply the law in effect at the time of the appellate decision, see Bradley v. School Board, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974). However, a court reviewing an agency decision following an intervening change of policy by the agency should remand to permit the agency to decide in the first instance whether giving the change retrospective effect will best effectuate the policies underlying the agency's governing act.
In its present posture the case does not, of course, present the question whether Board failure, on remand, to clarify the apparent inconsistency in its decisions would warrant reversal on review. Compare Barrett Line v. United States, 326 U.S. 179, 65 S.Ct. 1504, 89 L.Ed. 2128 (1945), with FCC v. WOKO, Inc., 329 U.S. 223, 227—228, 67 S.Ct. 213, 215, 91 L.Ed. 204 (1946). See L. Jaffe, Judicial Control of Administrative Action 587—588 (1965); Shapiro, The Choice of Rulemaking or Adjudication in the Development of Administrative Policy, 78 Harv.L.Rev. 921, 947—950 (1965).
| 89
|
417 U.S. 62
94 S.Ct. 2108
40 L.Ed.2d 660
Robert J. KOSYDAR, Tax Commissioner of Ohio, Petitioner,v.NATIONAL CASH REGISTER CO.
No. 73—629.
Argued March 19, 1974.
Decided May 20, 1974.
Syllabus
Cash registers and other machines built to foreign buyers' specifications which were warehoused in Ohio awaiting shipment abroad, title, possession, and control remaining in respondent manufacturer, held not immune from state ad valorem tax, since the prospect of eventual exportation, however certain, did not start the process of exportation and move the machines into the export stream, without which the immunity from local taxation conferred by the Import-Export Clause of the Constitution was not available. Empresa Siderurgica v. County of Merced, 337 U.S. 154, 69 S.Ct. 995, 93 L.Ed. 1276. Pp. 65—71.
35 Ohio St.2d 166, 298 N.E.2d 559, reversed.
Dwight C. Pettay, Jr., Columbus, Ohio, for petitioner.
Roger F. Day, Columbus, Ohio, for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
The Import-Export Clause of the Constitution, Art. I, § 10, cl. 2, provides:
2
'No State shall, without the Consent of the Congress, law any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's Inspection Laws; and the net Produce of all Duties and Imports, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.'
3
The issue for decision in this case is whether the assessment of an ad valorem personal property tax by the petitioner Tax Commissioner of Ohio upon certain property of the respondent is in conflict with this Clause.
4
* The Respondent National Cash Register Co. (NCR) has for many years engaged in the manufacture of cash registers, accounting machines, and electronic data processing systems, which it markets worldwide. Its home offices, main production plant, and warehouse are located in Dayton, Ohio. For marketing purposes, NCR is organized into two divisions, domestic and international, each wholly separated from the other. It is with the operations of the latter division that this case is concerned.
5
NCR maintains no inventory of machines which are available to meet incoming orders from foreign customers. Rather, when a salesman from the international division receives an order from a customer, an individual order form is completed. The machine is then built to specification, taking into account the commercial peculiarities of the country to which it is to be shipped and the buyer's individual needs.
6
After manufacture, the machine is inspected, packed, and crated for shipment abroad. The crated machine is then taken to an NCR warehouse in Dayton, to await foreign shipment.1 The machines relevant to this case were in storage in the Dayton warehouse, awaiting shipment, on December 31, 1967, when the petitioner Tax Commissioner assessed a personal property tax upon them.2
7
NCR appealed the Commissioner's assessment to the Board of Tax Appeals of the Ohio Department of Taxation. Its basic claim was that the 'international inventory' in the Dayton warehouse was made up of exports, and thus was immune from state taxation under the Import-Export Clause. In support of this contention, NCR offered evidence to show that, because of their unique construction and special adaptation for foreign use, the crated machines were not salable domestically. Further evidence was offered to show that no piece of equipment built for the international division has ever gone anywhere but into that division; that there is no recorded instance of a machine that was sold to a foreign purchaser being returned; and that no exported item has ever found its way back into the United States market.3
8
The Board of Tax Appeals nonetheless upheld the Commissioner's assessment. It ruled that even if the crated machines were irrevocably committed to export, the immunity from state taxation conferred by Act, I, § 10, cl. 2, did not attach until the property actually started on its journey to a foreign destination. Since the machines here had not yet entered the export stream, the Board of Tax Appeals concluded that they were still subject to the personal property tax.
9
The Supreme Court of Ohio reversed this decision by a divided vote. 35 Ohio St.2d 166, 298 N.E.2d 559. Relying on the evidence about the domestic nonsalability of the machines, the state court concluded that there was a 'certainty of export' in this case. Given that 'certainty,' the court thought it irrelevant for Import-Export Clause purposes that the taxed machines had not, on the date of the assessment, been moved from the storage facility in Dayton. We granted certiorari, 414 U.S. 1111, 94 S.Ct. 840, 38 L.Ed.2d 737, because the case seemed to present important questions touching the accommodation of state and federal interests under the Constitution.
II
10
By its own terms, the prohibition on taxation contained in the Import-Export Clause is absolute; no duties or imposts are allowed 'except what may be absolutely necessary for executing (a State's) inspection Laws.'4 Consequently, the essential question in cases involving the Clause is a narrow one: is the property upon which a tax has been sought to be imposed an 'export,' and thus entitled to protection under the provision's literal terms?
11
The seminal case on the subject is Coe v. Errol, 116 U.S. 517, 6 S.Ct. 475, 29 L.Ed. 715. Coe involved a shipment of spruce logs that had been hewn at various locations in Maine and New Hampshire, and were to be floated down the Androscoggin River for manufacture and sale in Lewiston, Maine. The logs were detained by low water in the town of Errol, New Hampshire, where the local selectmen assessed a number of taxes upon them. The owners of the logs contested the assessments, claiming that the property was immune from taxation under both the Commerce and Import-Export Clauses, since the river served as a 'public highway' for the interstate shipment of timber. The Supreme Court of New Hampshire sustained the tax, and this Court affirmed.
12
Writing for the Court, Mr. Justice BRADLEY viewed 'the precise question for solution' as follows:
13
'Do the owner's state of mind in relation to the goods, that is, his intent to export them, and his partial preparation to do so, exempt them from taxation?' Id., at 525, 6 S.Ct., at 477.
14
That question was answered in the negative. Recognizing that its task was to set a 'point of time when State jurisdiction over the commodities of commerce begins and ends,' id., at 526, 6 S.Ct. at 478, the Court concluded that
15
'such goods do not cease to be part of the general mass of property in the State, subject, as such, to its jurisdiction, and to taxation in the usual way, until they have been shipped, or entered with a common carrier for transportation to another State, or have been started upon such transportation in a continuous route or journey.' Id., at 527, 6 S.Ct. at 478 (emphasis added).
16
Since the logs in Coe had not begun a 'final movement for transportation from the State of their origin to that of their destination,' id., at 525, 6 S.Ct. at 477, the Court held that the Constitution provided no immunity from local taxation.
17
The basic principle of Coe v. Errol is a simple one—the exemption from taxation in the Import-Export Clause 'attaches to the export and not to the article before its exportation.' Cornell v. Coyne, 192 U.S. 418, 427, 24 S.Ct. 383, 384, 48 L.Ed. 504. This Court has adhered to that principle in the almost 90 years since Coe was decided, and the essential problem in cases involving the constitutional prohibition against taxation of exports has therefore been to decide whether a sufficient commencement of the process of exportation has occurred so as to immunize the article at issue from state taxation. Of necessity, the inquiry has usually been a factual one. For example, in A. G. Spalding & Bros. v. Edwards, 262 U.S. 66, 43 S.Ct. 485, 67 L.Ed. 865, this Court decided that delivery of baseballs and bats to an export carrier for shipment to Venezuela constituted a significant 'step in exportation,' id., at 68, 43 S.Ct. at 485, and exempted the goods from a federal revenue tax.5 Similarly, in Richfield Oil Corp. v. State Board of Equalization, 329 U.S. 69, 67 S.Ct. 156, 91 L.Ed. 80, it was held that the delivery of oil into the storage tanks of a New Zealand-bound steamer 'marked the commencement of the movement of the oil abroad.' id., at 83, 67 S.Ct. at 163, making the product immune from a California sales tax.
18
Yet, even if the inquiry in cases like Spalding and Richfield Oil was specifically directed at determining whether particular acts of movement toward a final destination constituted sufficient entrance into the export stream to invoke the protection of the Import-Export Clause, this Court has never lost sight of one basic principle—at least some such entrance is a prerequisite to the Clause's operation. That fact is well illustrated by the opinion of the Court in Empresa Siderurgica v. County of Merced, 337 U.S. 154, 69 S.Ct. 995, 93 L.Ed. 1276. That case involved a California cement plant, which had been sold to a Colombian buyer. Title to the property had passed to the buyer, and a common carrier had begun to dismantle the plant and crate it for shipment to Colombia.
19
At a stage when 12% of the plant had been shipped out of the country, the county of Merced levied a personal property tax on the remaining 88%. This balance included about 10% of the original plant that had been dismantled and crated or prepared for shipment, but which had not yet begun its voyage to Colombia. This Court held that the tax on the 88%, including this crated portion, did not violate the Import-Export Clause. Adhering to the test of Coe v. Errol, the Court stated:
20
'Under that test it is not enough that there is an intent to export, or a plan which contemplates exportation, or an integrated series of events which will end with it. . . . It is the entrance of the articles into the export stream that marks the start of the process of exportation. Then there is certainty that the goods are headed for their foreign destination and will not be diverted to domestic use. Nothing less will suffice.' Id., 337 U.S. at 156—157, 69 S.Ct. at 997.
21
Since the 88% of the cement plant had not yet begun its out-of-state journey, the Court concluded that the California tax was not one upon 'exports' within the meaning of the Clause.6
22
We can find little in the case before us to take it outside the ambit of the Empresa Siderurgica holding. At the time that the respondent's machines were assessed for taxation, they were sitting in the Dayton warehouse awaiting shipment. Title and possession were in NCR, payment had not yet been made by the putative purchasers, no export license had issued, and the machines were in the complete control of the respondent. More important, there had simply been no movement of the goods—no shipment, and no commencement of the process of exportation. Given this factual setting, it would require a sharp departure from nearly a century of precedents under the Import-Export Clause for us to conclude that the machines were 'exports' and exempt from state taxation.
23
In an effort to avoid the clear holdings of our prior cases, NCR emphasizes the peculiar nature of the taxed machines, and contends that their non-adaptability to domestic use brought about a 'certainty of export.' Because of this practical absence of 'diversion potential,' NCR argues that the ultimate placement of the machines into the stream of exportation is a mere formality, and that this Court should treat the crated property as already having become an export in the constitutional sense even as it sits in the Dayton warehouse.
24
As a practical matter, it might well be doubted that the 'diversion potential' of the crated portions of the cement plant in Empresa Siderurgica was any greater than that present here.7 But, even assuming, arguendo, the validity of NCR's arguments about the practical certainty of export here, we think it plain that the warehoused machines are not entitled to the protection of the Import-Export Clause. Mr. Justice Frankfurter put the matter susccinctly in Joy Oil Co. v. State Tax Comm'n, 337 U.S. 286, 288, 69 S.Ct. 1075, 1077:
25
'The Export-Import Clause was meant to confer immunity from local taxation upon property being exported, not to relieve property eventually to be exported from its share of the cost of local services.'
26
We may accept as fact the respondent's assurances that the prospect of eventual exportation here was virtually certain. 'But that prospect, no matter how bright, does not start the process of exportation. On the tax date the movement to foreign shores had neither started nor been committed.' Empresa Siderurgica, 337 U.S., at 157, 69 S.Ct., at 997. Given the absence of an entrance of the respondent's machines into the export stream, the immunities of the Import-Export Clause are unavailable.
27
It may be said that insistence upon an actual movement into the stream of export in the case at hand represents an overly wooden or mechanistic application of the Coe doctrine. This is an instance, however, where we believe that simplicity has its virtues. The Court recognized long ago that even if it is not an easy matter to set down a rule determining the moment in time when articles obtain the protection of the Import-Export Clause, 'it is highly important, both to the shipper and to the State, that it should be clearly defined so as to avoid all ambiguity or question.' Coe, 116 U.S., at 526, 6 S.Ct., at 478. As Mr. Justice Holmes put the matter in A. G. Spalding, 262 U.S., at 69, 43 S.Ct., at 486:
28
'(W)e have to fix a point at which, in view of the purpose of the Constitution, the export must be said to begin. As elsewhere in the law there will be other points very near to it on the other side, so that if the necessity of fixing one definitely is not remembered any determination may seem arbitrary.'
29
Our prior cases have determined that the protections of the Import-Export Clause are not available until the article at issue begins its physical entry into the stream of exportation. We find no reason to depart from that settled doctrine.
30
For these reasons, the judgment of the Supreme Court of Ohio is reversed.
31
Judgment reversed.
1
There is often a time lag between production and final shipment, and an inventory of international machines is therefore built up at the Dayton warehouse. The delays in eventual shipment occur for a number of reasons. In some cases, recipient countries will not allow partial shipments, so when a large order has been placed and the production cycle is slow, the machines must be consolidated and stored prior to shipment. In the electronic data processing area, the component parts of a shipment are often produced at several different locations, necessitating a consolidation prior to shipment. In other instances, delay in final shipment is caused by difficulties in procuring importation licenses or the uncertainties of the international monetary situation.
2
Under Ohio Rev.Code Ann. § 5709.01, all personal property located and used in business within the State is subject to an ad valorem tax. Ohio Rev.Code Ann. § 5711.16 provides that articles which have at any time been manufactured are subject to the tax.
3
A number of factors make domestic sales of the machines impractical. For one thing, the keyboards, printing mechanisms, characters, dispensing mechanisms, and decimal point placement of the machines are geared to the particular monetary system employed in the customer's country. Moreover, the machines are quite often designed for use on electrical systems not prevalent in this country. And, even when mechanical problems do not exist, the fact remains that merchandising techniques in this country are considerably more sophisticated than those in many other nations, so as to make machines designed for foreign use somewhat obsolete in the domestic market.
4
There is no claim that this exception is applicable in any way in the present case.
5
The Spalding case arose under Art. I, § 9, cl. 5, of the Constitution, which provides that 'No Tax or Duty shall be laid on Articles exported from any State.' A long line of cases has recognized, however, that the meaning of 'export' is the same under that provision as under the Import-Export Clause. See, e.g., Brown v. Maryland, 12 Wheat. 419, 445, 25 U.S. 419, 6 L.Ed. 678; Turpin v. Burgess, 117 U.S. 504, 506, 6 S.Ct. 835, 836, 29 L.Ed. 988; Cornell v. Coyne, 192 U.S. 418, 427—428, 24 S.Ct. 383, 48 L.Ed. 504; Richfield Oil Corp. v. State Board of Equalization, 329 U.S. 69, 83, 67 S.Ct. 156, 163, 91 L.Ed. 80.
6
In a decision rendered two weeks after Empresa Siderurgica, the Court made it clear that not every preliminary movement of goods toward eventual exportation was sufficient to invoke the protection of the Import-Export Clause. In Joy Oil Co. v. State Tax Comm'n, 337 U.S. 286, 69 S.Ct. 1075, 93 L.Ed. 1366, the question was whether an ad valorem property tax on gasoline stored in tanks at Dearborn, Michigan, for eventual export to Canada, was permissible under the Clause. The gasoline had previously been purchased by a Canadian corporation, had been certified as purchased for export, shipped by rail to Detroit under bills of lading marked 'For Export to Canada,' and eventually placed in the Dearborn tanks. The bulk of the gasoline remained in the tanks for over 15 months, because of an apparent shortage of shipping space by water. This Court held that, despite the initial transportation of the gasoline to Dearborn, the hiatus in the journey subjected the property to state taxation.
7
Indeed, it might well be contended that in this case: 'There is no certainty of export. The record establishes that some machines have remained stored in the warehouse awaiting shipment for three years. The orders could be cancelled, the export license might never issue, the financing may fail to materialize, the machines could be destroyed, dismantled or sold for scrap. These machines were no different from any other mass of goods in a warehouse awaiting shipment.' 35 Ohio St.2d 166, 175, 298 N.E.2d 559, 564—565 (O'Neill, C.J., dissenting).
| 78
|
417 U.S. 12
94 S.Ct. 2069
40 L.Ed.2d 620
WILLIAM E. ARNOLD COMPANY, Petitioner,v.CARPENTERS DISTRICT COUNCIL OF JACKSONVILLE AND VICINITY, etc., et al.
No. 73—466.
Argued March 20, 1974.
Decided May 20, 1974.
Syllabus
When respondent unions called a jurisdictional-dispute strike against petitioner employer, petitioner brought this suit, which is within the purview of § 301 of the Labor Management Relations Act, in a Florida trial court to enjoin respondents' breach of a no-strike clause in the collective-bargaining agreement containing a binding settlement procedure. That court issued a temporary restraining order against the strike, and its action was upheld by an intermediate appellate court. The Florida Supreme Court reversed, holding that since the unions' breach was also arguably an unfair labor practice under § 8(b)(4)(i)(D) of the National Labor Relations Act (NLRA) involving jurisdictional disputes, the jurisdiction of the National Labor Relations Board (NLRB) was exclusive. Held:
1. When the activity in question is arguably both an unfair labor practice prohibited by § 8 of the NLRA and a breach of a collective-bargaining agreement, the NLRB's authority 'is not exclusive and does not destroy the jurisdiction of the courts in suits under § 301.' Smith v. Evening News Assn., 371 U.S. 195, 197, 83 S.Ct. 267, 269, 9 L.Ed.2d 246. Pp. 15—18.
(a) The pre-emption doctrine of San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, is 'not relevant' to actions within the purview of § 301, which may be brought in either state or federal courts. P. 16.
(b) NLRB policy is to refrain from exercising jurisdiction as to conduct which is arguably both an unfair labor practice and a contract violation when, as here, the parties have voluntarily established by contract a binding settlement procedure. P. 16.
(c) When the particular contract violations also involve an arguable violation of § 8(b)(4)(i)(D), the NLRB has recognized added policy justifications for deferring to the contractual dispute settlement mechanism, as indicated by § 10(k) of the NLRA, which by its special procedure for NLRB resolution of charges involving jurisdictional disputes 'not only tolerates but actually encourages' settlements of such disputes. Pp. 17—18.
2. State court jurisdiction over collective-bargaining disputes does not turn upon the particular type of relief sought, and therefore is not limited to claims for damages, rather than injunctive relief. Pp. 18—20.
279 So.2d 300, reversed and remanded.
John Paul Jones, Jacksonville, Fla., for petitioner.
Joseph S. Farley, Jr., Jacksonville, Fla., for respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The Florida Supreme Court held that the Florida District Court of Appeal erred in refusing to issue a writ of prohibition to restrain the Circuit Court for Duval County from exercising its jurisdiction over a suit within the purview of § 301 of the Labor Management Relations Act (LMRA).1 The suit sought to enjoin respondent unions' breach of a no-strike clause contained in a collective-bargaining agreement, which breach arguably is also an unfair labor practice under the Act. The State Supreme Court stated: 'It is unquestionable that state courts do have jurisdiction to enforce a collective bargaining agreement and to enjoin a strike in violation of a 'no-strike' clause contained therein, but not when the strike is also arguably an unfair labor practice prohibited by federal law.' 279 So.2d 300, 302 (1973). We granted certiorari to decide whether the holding of the Florida Supreme Court was consistent with decisions of this Court, including Teamsters Local 174 v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962), and Smith v. Evening News Assn., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962). 414 U.S. 1063, 94 S.Ct. 568, 38 L.Ed.2d 467 (1973). We reverse.
2
Article VI of a collective-bargaining agreement between petitioner, William E. Arnold Co., and respondents, Carpenters District Council of Jacksonville and Vicinity and its affiliate, Local 627 (Carpenters), provides:
3
'There shall be no work stoppage, slowdown, work cessation or strike because of a Jurisdictional Dispute. A mutually agreeable settlement, or joint decision of the International Unions involved, or decision or interpretation of the National Joint Board for the Settlement of Jurisdictional Disputes (or Hearing Panel) shall be binding and all parties agree to accept such decision or interpretation.'
4
In 1971, during the construction of the Jacksonville General Hospital, one of Arnold's subcontractors assigned work claimed by the Carpenters to the Wood, Wire and Metal Lathers International Union, AFL-CIO, Local 59. The Carpenters struck Arnold to force reassignment of the work to their members. Arnold thereupon brought this suit in the Circuit Court of Duval County to enjoin the Carpenters from violating the provisions of Art. VI and obtained a temporary restraining order prohibiting the strike. The Carpenters then sought a writ of prohibition from a Florida District Court of Appeal, contending that the Circuit Court lacked jurisdiction to order injunctive relief because the alleged breach of the no-strike clause was also arguably an unfair labor practice under § 8(b)(4)(i)(D) of the National Labor Relations Act (NLRA), U.S.C. 29 § 158(b)(4)(i)(D),2 and therefore fell within the exclusive jurisdiction of the National Labor Relations Board (Board). The District Court of Appeal denied the writ of prohibition and, as previously mentioned, the Supreme Court of Florida reversed.
5
When an activity is either arguably protected by § 7 or arguably prohibited by § 8 of the NLRA, the preemption doctrine developed in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), and its progeny, teaches that ordinarily 'the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.' Id., at 245, 79 S.Ct., at 780. When, however, the activity in question also constitutes a breach of a collective-bargaining agreement, the Board's authority 'is not exclusive and does not destroy the jurisdiction of the courts in suits under § 301.' Smith v. Evening News Assn., supra, 371 U.S at 197, 83 S.Ct., at 269. This exception was explicitly reaffirmed in Motor Coach Employees v. Lockridge, 403 U.S. 274, 297—298, 91 S.Ct. 1909, 1923—1924, 29 L.Ed.2d 473 (1971). It was fashioned because the history of § 301 reveals that 'Congress deliberately chose to leave the enforcement of collective agreements 'to the usual processes of the law," Dowd Box Co. v. Courtney, 368 U.S. 502, 513, 82 S.Ct. 519, 526, 7 L.Ed.2d 483 (1962). Thus, we have said that the Garmon doctrine is 'not relevant' to actions within the purview of § 301, Local 174 Teamsters v. Lucas Flour Co., supra, 369 U.S., at 101 n. 9, 82 S.Ct., at 575, which may be brought in either state or federal courts, Dowd Box Co. v. Courtney, supra, 368 U.S., at 506, 82 S.Ct., at 522.
6
Indeed, Board policy is to refrain from exercising jurisdiction in respect of disputed conduct arguably both an unfair labor practice and a contract violation when, as in this case, the parties have voluntarily established by contract a binding settlement procedure. See, e.g., The Associated Press, 199 N.L.R.B. 1110 (1972); Eastman Broadcasting Co., 199 N.L.R.B. 434 (1972); Laborers Local 423, 199 N.L.R.B. 450 (1972); Collyer Insulated Wire, 192 N.L.R.B. 837 (1971). The Board said in Collyer, 'an industrial relations dispute may involve conduct which, at least arguably, may contravene both the collective agreement and our statute. When the parties have contractually committed themselves to mutually agreeable procedures for resolving their disputes during the period of the contract, we are of the view that those procedures should be afforded full opportunity to function. . . . We believe it to be consistent with the fundamental objectives of Federal law to require the parties . . . to honor their contractual obligations rather than, by casting (their) dispute in statutory terms, to ignore their agreed-upon procedures.' Id., at 842—843. The Board's position harmonizes with Congress' articulated concern that, '(f)inal adjustment by a method agreed upon by the parties is . . . the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement. . . .' § 203(d) of the LMRA, 29 U.S.C. § 173(d).
7
Furthermore, when the particular contract violation also involves an arguable violation of § 8(b)(4)(i)(D) of the NLRA concerning jurisdictional disputes, as in this case, the Board has recognized added policy justifications for deferring to the contractual dispute settlement mechanism agreed upon by the parties. Section 10(k) of the NLRA, 29 U.S.C. § 160(k), establishes a special procedure for the Board's resolution of charges involving jurisdictional disputes:
8
'Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4)(D) of section 158(b) of this title, the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless, within ten days after notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed.' (Emphasis added.) Thus, § 10(k) 'not only tolerates but actively encourages voluntary settlements of work assignment controversies between unions . . ..' Carey v. Westinghouse Electric Corp., 375 U.S. 261, 266, 84 S.Ct. 401, 406, 11 L.Ed.2d 320 (1964). Recognizing Congress' preference for voluntary settlement of jurisdictional disputes, the Board has declined jurisdiction in § 10(k) cases, commenting that, '(i)f we retained jurisdiction . . ., the statutory purpose to encourage the voluntary settlement of jurisdictional disputes would be frustrated in that a party receiving an adverse decision from the agreed-upon tribunal for settling its jurisdictional dispute would be encouraged to ignore such decision, lapse into non-compliance, and then come before this Board for a more favorable resolution of the dispute.' Laborers Local 423, 199 N.L.R.B., at 451.
9
The Board's practice and policy of declining to exercise its concurrent jurisdiction over arguably unfair labor practices which also violate provisions of collective-bargaining agreements for voluntary adjustment of disputes highlight the congressional purpose that § 301 suits in state and federal courts should be the primary means for 'promoting collective bargaining that (ends) with agreements not to strike.' Textile Workers v. Lincoln Mills, 353 U.S. 448, 453, 77 S.Ct. 912, 916, 1 L.Ed.2d 972 (1957). The assurance of swift and effective judicial relief provides incentive to eschew economic weapons in favor of binding grievance procedures and nostrike clauses.
10
The Carpenters contend, however, that state court jurisdiction over collective-bargaining disputes should be limited to claims for damages, rather than injunctive relief. See Brief for Respondents 7—9. We disagree. To be sure, Lucas, Smith, and Lockridge, all supra, involved only damages claims, but nothing in the opinions in those cases remotely suggests that state court jurisdiction should turn upon the particular type of relief sought. Indeed, Avco Corp. v. Aero Lodge 735, 390 U.S. 557, 561, 88 S.Ct. 1235, 1238, 20 L.Ed.2d 126 (1968), disposes of the argument. We there said: 'The nature of the relief available after jurisdiction attaches is, of course, different from the question whether there is jurisdiction to adjudicate the controversy. . . . Any error in granting or designing relief 'does not go to the jurisdiction of the court.' Swift & Co. v. United States, 276 U.S. 311, 331, 48 S.Ct. 311, 316, 72 L.Ed. 587.' Moreover, the policy reasons against extension of the Garmon doctrine to suits within the scope of § 301 are particularly compelling when the relief sought is specific performance of a no-strike obligation, rather than damages. What we said in Boys Markets v. Clerks Union, 398 U.S. 235, 248, 90 S.Ct. 1583, 1591, 26 L.Ed.2d 199 (1970), is pertinent here:
11
'(A) no-strike obligation, express or implied, is the quid pro quo for an undertaking by the employer to submit grievance disputes to the process of arbitration. See Textile Workers Union v. Lincoln Mills, supra, 353 U.S., at 455, 77 S.Ct., at 917. Any incentive for employers to enter into such an arrangement is necessarily dissipated if the principal and most expeditious method by which the no-strike obligation can be enforced is eliminated. While it is of course true, as respondent contends, that other avenues of redress, such as an action for damages, would remain open to an aggrieved employer, an award of damages after a dispute has been settled is no substitute for an immediate halt to an illegal strike. Furthermore, an action for damages prosecuted during or after a labor dispute would only tend to aggravate industrial strife and delay an early resolution of the difficulties between employer and union.' (Footnotes omitted.)
12
See also Gateway Coal Co. v. United Mine Workers, 414 U.S. 368, 382, 94 S.Ct. 629, 639, 38 L.Ed.2d 583 (1973).
13
Therefore, we reject the argument of Carpenters that the availability of effective equitable relief should be limited to the federal courts. We have previously expressed our agreement with Chief Justice Traynor of the California Supreme Court that 'whether or not Congress could deprive state courts of the power to give such (injunctive) remedies when enforcing collective-bargaining agreements, it has not attempted to do so either in the Norris-La Guardia Act or section 301,' McCarroll v. Los Angeles County Dist. Council of Carpenters, 49 Cal.2d 45, 63, 315 P.2d 322, 332 (1957). See Boys Markets v. Clerks Union, supra, 398 U.S., at 247, 90 S.Ct., at 1590. Rather, the jurisdiction given federal courts under § 301 was 'not to displace, but to supplement, the thoroughly considered jurisdiction of the courts of the various States over contracts made by labor organizations,' Dowd Box Co. v. Courtney, 368 U.S., at 511, 82 S.Ct., at 525.
14
We do not, of course, pass upon the propriety of the injunctive relief sought in the present case. That is a question to be resolved on remand. The judgment of the Supreme Court of Florida is reversed and the case remanded for further proceedings not inconsistent with this opinion.
15
It is so ordered.
16
Judgment of Supreme Court of Florida reversed and case remanded.
1
'Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.' 61 Stat. 156, 29 U.S.C. § 185(a).
2
Section 8(b)(4) makes it an unfair labor practice for a labor organization or its agents:
'(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is—
'(D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work . . ..'
| 910
|
416 U.S. 802
94 S.Ct. 2191.
40 L.Ed.2d 566
A. Y. ALLEE et al., Appellants,v.Francisco MEDRANO et al.
No. 72—1125.
Argued Nov. 13, 1973.
Decided May 20, 1974.
Syllabus
Appellee union and the individual appellees, who attempted from June 1966 to June 1967 to unionize farmworkers and persuade them to support or join a strike, were subjected to persistent harassment and violence by appellants and other law enforcement officers. In July 1967 a state court issued a temporary injunction against appellees, proscribing picketing on or near property of one of the major employers in the area. Appellees brought this federal civil rights action, 42 U.S.C. §§ 1983, 1985, attacking the constitutionality of certain Texas statutes and alleging that appellants and the other officers conspired to deprive appellees of their First and Fourteenth Amendment rights. A three-judge District Court declared five of the statutes unconstitutional and enjoined their enforcement, and in addition permanently enjoined appellants and the other officers from intimidating appellees in their organizational efforts. Held:
1. The state court injunction did not moot the controversy, since it was the appellants' and the other officers' conduct, not the injunction, that ended the strike. Nor has the case become moot because appellees abandoned their unionization efforts as a result of the harassment, for appellee union still is a live organization with a continuing goal of unionizing farmworkers. Pp. 809—811.
2. The portion of the District Court's decree enjoining police intimidation of the appellees was an appropriate exercise of the court's equitable powers. Pp. 811—816.
(a) The three-judge court could properly consider the question of police harassment under concededly constitutional statutes and grant relief in the exercise of jurisdiction ancillary to that conferred by the constitutional attack on the statutes that plainly required a three-judge court. Pp. 811—812.
(b) This portion of the decree did not interfere with pending state prosecutions, so that special considerations relevant to cases like Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, do not apply, nor was there any requirement that appellees first exhaust state remedies before bringing their federal suit. P. 814.
(c) Irreparable injury was shown as evidence by the District Court's unchallenged findings of police intimidation, and no remedy at law would adequately protect appellees from such intimidation in their lawful effort to unionize the farmworkers. Pp. 814—815.
(d) Where there is a persistent pattern of police misconduct, as opposed to isolated incidents, injunctive relief is appropriate. Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423. Pp. 815—816.
3. The portion of the District Court's decree holding five of the state statutes unconstitutional with accompanying injunctive relief, must be vacated. Pp. 816—820.
(a) Where three of the statutes have been repealed and replaced by more narrowly drawn provisions since the District Court's decision and there are no pending prosecutions under them, the judgment relating to these statutes will have become moot. Since it cannot be definitely determined from the District Court's opinion or the record whether there are pending prosecutions or even whether the District Court intended to enjoin them if there were, the case is remanded for further findings. If there are no pending prosecutions, the court should vacate the judgment as to the superseded statutes. If some are pending, the court should make findings as to whether they were brought in bad faith, and, if so, enter an appropriate decree subject to review both as to the propriety of federal court intervention and as to the merits of any holding striking down the statutes. Pp. 818—820.
(b) The case is remanded for a determination as to whether there are pending prosecutions under the two remaining statutes, and for further findings and reconsideration in light of Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505. If there are pending prosecutions, the court should determine whether they were brought in bad faith. If there are only threatened prosecutions and only declaratory relief is sought, then Steffel controls and no Younger showing need be made. P. 820.
347 F.Supp. 605, affirmed in part, vacated in part, and remanded.
Larry F. York, Austin, Tex., for appellants.
Chris Dixie, Houston, Tex., for appellees.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This is a civil rights action,1 42 U.S.C. §§ 1983, 1985, attacking the constitutionality of certain Texas statutes, brought by appellees. It alleges that the defendants, members of the Texas Rangers and the Starr County, Texas, Sheriff's Department, and a Justice of the Peace in Starr County, conspired to deprive appellees of their rights under the First and Fourteenth Amendments, by unlawfully arresting, detaining, and confining them without due process and without legal justification, and by unlawfully threatening, harassing, coercing, and physically assaulting them to prevent their exercise of the rights of free speech and assembly. A three-judge court was convened which declared five Texas statutes unconstitutional and enjoined their enforcement. 347 F.Supp. 605, 634. In addition, the court permanently enjoined the defendants from a variety of unlawful practices which formed the core of the alleged conspiracy. Five defendants, all members of the Texas Rangers, have perfected this appeal. 28 U.S.C. § 1253. The appellees consist of the United Farm Workers Organizing Committee, certain named plaintiffs,2 and the class they represented in the District Court on whose behalf the judgment was also rendered.3
2
From June 1966 until June 1667, the appellees were engaged in an effort to organize into the union the predominantly Mexican-American farmworkers of the lower Rio Grande Valley. This effort led to considerable local controversy which brought appellees into conflict with the state and local authorities, and the District Court found that as a result of the unlawful practices enjoined below the organizing efforts were crushed. This lawsuit followed.
3
The factual findings of the District Court are not challenged here. In early June 1966, at the beginning of the organizing effort, Eugene Nelson, one of the strikers' principal leaders, stationed himself at the International Bridge in Roma, Texas, attempting to persuade laborers from Mexico to support the strike. He was taken into custody by the Starr County Sheriff, detained for four hours, questioned about the strike, and was told he was under investigation by the Federal Bureau of Investigation. No charges were ever filed against him. 347 F.Supp., at 612.
4
In October 1966, about 25 union members and sympathizers picketed alongside the Rancho Grande Farms exhorting the laborers to join the strike; they were ordered to disperse by the sheriffs although their picketing was peaceful. When Raymond Chandler, one of the union leaders, engaged an officer in conversation contesting the validity of the order, he was arrested under Art. 474 of the Vernon's Ann. Texas Penal Code for breach of the peace. Although the maximum punishment for this offense is a $200 fine, bond was set for Chandler at $500. When two of Chandler's friends came to the courthouse to make bond, they were verbally abused, told they had no business there, and that if they did not leave they would be placed in jail themselves. 347 F.Supp., at 612—613. They left.4
5
Later that month, when the president of the local union and others were in the courthouse under arrest, they shouted 'viva la huelga' in support of the strike. A deputy sheriff struck the union official and held a gun at his forehead, ordering him not to repeat those words in the courthouse because it was a 'respectful place.' Id., at 613. As the strike continued through the year and the Texas Rangers were called into the local area, there were more serious incidents of violence. In May 1967 some union pickets gathered in Mission, Texas, to protest the carrying of produce from the valley on the Missouri-Pacific Railroad. They were initially charged with trespass on private property; this was changed to unlawful assembly, and finally was superseded by complaints of secondary picketing. The Reverend Edgar Krueger and Magdaleno Dimas were taken into custody by the Rangers. As a train passed, the Rangers held these two prisoners' bodies so that their faces were only inches from the train. Id., at 615.
6
A few weeks later the Rangers sought to arrest Dimas for allegedly brandishing a gun in a threatening manner, and found him by 'tailing' Chandler and Moreno, also union members. Chandler was arrested with no explanation as was Moreno, who was also assaulted by Captain Allee at the time. These two men were later charged with assisting Dimas to evade arrest, although by Allee's own testimony they were never told Dimas was sought by the Rangers. Indeed, because the officers had no arrest warrant or formal complaint against Dimas, they could no then arrest him, so they put in a call to a justice of the peace who arrived on the scene and filled out a warrant on forms he carried with him. The Rangers then broke into a house and arrested Dimas and Rodriguez, another union member, in a violent and brutal fashion. Dimas was hospitalized four days with a brain concussion, and X-rays revealed that he had been struck so hard on the back that his spine was curved out of shape. Rodriguez had cuts and bruises on his ear, Elbow, upper arm, back, and jaw; one of his fingers was broken and the nail torn off. Id., at 616—617.
7
Earlier, in May, Nelson had gone down to the Sheriff's office, according to appellees, to complain that the Rangers were acting as a private police force for one of the farms in the area. The three-judge District Court found that Nelson was then arrested and charged with threatening the life of certain Texas Rangers, despite the fact that Captain Allee conceded there was no serious threat. Allee had directed that the charges be filed to protect the Rangers from censure if something happened to Nelson, Id., at 615.
8
During this entire period the Starr County Sheriff's office regularly distributed an aggressive anti-union newspapers. A deputy driving an official car would pick up the papers each week, and bring them back to the Sheriff's office; they would then be distributed by various deputies. Id., at 617. The District Court included copies of the paper in an appendix to its opinion; a typical headline was 'Only Mexican Subversive Group Could Sympathize with Valley Farm Workers.' The views of the Texas Rangers were similarly explicit. On a number of occasions they offered farm jobs to the union leaders, at the union demand wage, in return for an end to the strike. Id., at 613, 614. The Rangers told one union member that they had been called into the area to break the strike and would not leave until they had done so. Id., at 613.
9
Among other findings of the three-judge District Court were that the defendants selectively enforced the unlawful assembly law, Art. 439 of the Texas Penal Code, treating as criminal an inoffensive union gathering, 347 F.Supp., at 613; solicited criminal complaints against appellees from persons with no knowledge of the alleged offense, id., at 615; and filed baseless charges against one appellee for impersonating an officer.5
10
The three-judge District Court found that the law enforcement officials 'took sides in what was essentially a labor-management controversy.' Id., at 618. Although there was virtually no evidence of assault upon anyone by union people during the strike, the officials 'concluded that the maintenance of law and order was inextricably bound to preventing the success of the strike.' Ibid. Thus, these were not a series of isolated incidents but a prevailing pattern throughout the controversy.
11
* It is argued that a state injunction6 against the appellees, issued on July 11, 1967, ended the strike and thus rendered the controversy moot. That is not the case.
12
After summarizing the defendants' unlawful practices, the District Court concluded that '(t)he union's efforts collapsed under this pressure in June of 1967 and this suit was filed in an effort to seek relief.' Ibid. Thus it was the defendants' conduct, which is the subject of this suit, that ended the strike, not the state court injunction, which came afterward. With the protection of the federal court decree, appellees could again begin their efforts.
13
Moreover, the state court injunction is quite limited. It proscribes picketing by the appellees and those acting in concert with them only on or near property owned by La Casita Farms, Inc., the plaintiff in the state case. But the appellants agreed at oral argument that La Casita is only one of the major employers in the area, and some of the incidents involved occurred at other locations. Moreover the state court injunction was only temporary, and on appeal the Texas Court of Civil Appeals, after finding that most of the trial court findings were unsupported, affirmed only because of the limited nature of review, under Texas law, of a temporary injunction. The appellate court concluded that 'nothing in this opinion is to be taken as a ruling that the evidence before us would support the issuance of a permanent injunction . . ..' United Farm Workers Organizing Comm. v. La Casita Farms, Inc., Tex.Civ.App., 439 S.W.2d 398, 403. We were advised at oral argument that no permanent injunction against picketing has ever been issued, and we cannot assume that one will be.
14
Nor can it be argued that the case has become moot because appellees have abandoned their efforts as a result of the very harassment they sought to restrain by this suit. There can be no requirement that appellees continue to subject themselves to physical violence and unlawful restrictions upon their liberties throughout the pendency of the action in order to preserve it as a live controversy. In the face of appellants' conduct, appellees sought to vindicate their rights in the federal court. In June 1967 they rechanneled their efforts from direct attempts at unionizing the workers to seeking the protection of a federal decree, and hence they brought this suit. In their amended complaint, filed in October 1967, they charged that the defendants' conduct, aimed at all those who make common cause with appellees, 'chill(ed) the willingness of people to exercise their First Amendment rights,' resulting, as the three-judge District Court found, in the 'collapse' of the union drive. Appellees continued to prosecute the suit and won a judgment in December 1972. We may not assume that because during this period they directed their efforts to the judicial battle, they have abandoned their principal cause. Rather, the very purpose of the suit was to seek protection of the federal court so that the efforts at unionization could be renewed. It is settled that an action for an injunction does not become moot merely because the conduct complained of has terminated, if there is a possibility of recurrence, since otherwise the defendants 'would be free to return to '(their) old ways." Gray v. Sanders, 372 U.S. 368, 376, 83 S.Ct. 801, 806, 9 L.Ed.2d 821; Walling v. Helmerich & Payne, Inc., 323U.S. 37, 43, 65 S.Ct. 11, 14, 89 L.Ed. 29; United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303; NLRB v. Raytheon Co., 398 U.S. 25, 27, 90 S.Ct. 1547, 1548, 26 L.Ed.2d 21; SEC v. Medical Committee for Human Rights, 404 U.S. 403, 406, 92 S.Ct. 577, 579, 30 L.Ed.2d 560. The appellee union remains very much a live organization and its goal continues to be the unionization of farmworkers. The essential controversy is therefore not moot, but very much alive.
II
15
We first consider the provisions of the federal court decree enjoining police intimidation of the appellees.7 This part of the decree complements the other relief, in that it places boundaries on all police conduct, not just that which is based upon state statutes struck down by the federal court. The complaint charged that the enjoined conduct was but one part of a single plan by the defendants, and the District Court found a pervasive pattern of intimidation in which the law enforcement authorities sought to suppress appellees' constitutional rights. In this blunderbuss effort the police not only relied on statutes the District Court found constitutionally deficient, but concurrently exercised their authority under valid laws in an unconstitutional manner. While it is argued that a three-judge District Court could not properly be convened if police harassment under concededly constitutional statutes were the only question presented to it, it could properly consider the question and grant relief in the exercise of jurisdiction ancillary to that conferred by the constitutional attack on the state statutes which plainly required a three-judge court.8
16
That part of the decree in question here prohibits appellants from using their authority as peace officers to arrest, stop, disperse, or imprison appellees, or otherwise interfere with their organizational efforts, without 'adequate cause.' 'Adequate cause' is defined as (1) actual obstruction of public or private passways causing unreasonable interference, (2) force or violence, or threat thereof, actually committed by any person, or the aiding and abetting of such conduct, or, (3) probable cause to believe in good faith that a criminal law of the State of Texas has been violated, other than the ones struck down in the remainder of the decree. On its face the injunction does no more than require the police to abide by constitutional requirements; and there is no contention that this decree would interfere with law enforcement by restraining the police from engaging in conduct that would be otherwise lawful.
17
Thus the only question before us is whether this was an appropriate exercise of the federal court's equitable powers. We first note that this portion of the decree creates no interference with prosecutions pending in the state courts, so that the special considerations relevant to cases like Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, do not apply here. Nor was there any requirement that appellees first exhaust state remedies before bringing their federal claims under the Civil Rights Act of 1871 to federal court. McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622; Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492. Nonetheless there remains the necessity of showing irreparable injury, 'the traditional prerequisite to obtaining an injunction' in any case. Younger, supra, 401 U.S., at 46, 91 S.Ct., at 751.
18
Such a showing was clearly made here as the unchallenged findings of the District Court show. The appellees sought to do no more than organize a lawful union to better the situation of one of the most economically oppressed classes of workers in the country. Because of the intimidation by state authorities, their lawful effort was crushed. The workers, and their leaders and organizers were placed in fear of exercising their constitutionally protected rights of free expression, assembly, and association. Potential supporters of their cause were placed in fear of lending their support. If they were to be able to regain those rights and continue furthering their cause by constitutional means, they required protection from appellants' concerted conduct. No remedy at law would be adequate to provide such protection. Dombrowski v. Pfister, 380 U.S. 479, 485—489, 85 S.Ct. 1116, 1120—1122, 14 L.Ed.2d 22.
19
Isolated incidents of police misconduct under valid statutes would not, of course, be cause for the exercise of a federal court's equitable powers. But '(w)e have not hesitated on direct review to strike down applications of constitutional statutes which we have found to be unconstitutionally applied.' Cameron v. Johnson, 390 U.S. 611, 620, 88 S.Ct. 1335, 1340, 20 L.Ed.2d 182, citing Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487; Wright v. Georgia, 373 U.S. 284, 83 S.Ct. 1240, 10 L.Ed.2d 349; Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697. Where, as here, there is a persistent pattern of police misconduct, injunctive relief is appropriate. In Hague v. Committee for Industrial Organization, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423, we affirmed the granting of such relief under strikingly similar facts. There also law enforcement officials set out to crush a nascent labro union. The police interfered with the lawful distribution of pamphlets, prevented the holding of public meetings, and ran some labor organizers out of town. The District Court declared some of the municipal ordinances unconstitutional. In addition, it enjoined the police from 'exercising personal restraint over (the plaintiffs) without warrant or confining them without lawful arrest and production of them for prompt judicial hearing . . . or interfering with their free access to the streets, parks, or public places of the city,' or from 'interfering with the right of the (plaintiffs), their agents and those acting with them, to communicate their views as individuals to others on the streets in an orderly and peaceable manner.' Id., at 517, 59 S.Ct., at 965. The lower federal courts have also granted such relief in similar cases.9
20
For reasons to be stated, that the portion of this relief based on holdings that certain state statutes are unconstitutional should be modified. In all other respects this portion of the District Court decree was quite proper.10
III
21
Finally, we consider the portion of the District Court's judgment declaring five Texas statutes unconstitutional, with the accompanying injunctive relief. We have been pressed with arguments by the appellants that these parts of the decree are inconsistent with the teachings of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, and Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688. For reasons explained below, it is unnecessary to reach these contentions at present.
22
Younger and its companion cases are grounded upon the special considerations which apply when a federal court is asked to intervene in pending state criminal prosecutions. Steffel v. Thompson 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505. Although both parties here have assumed the relevance of Younger, we have been unable to find any precise indication in the District Court opinion or in the record that there were pending prosecutions at the time of the District Court decision. Indeed, the chronology of events gives rise to the contrary inference. Although the District Court issued its opinion in December 1972, the union effort which was the source of this contest had been interrupted more than five years earlier. It seems likely that any state prosecutions initiated during the effort would have been concluded by that time unless they had been restrained by a temporary order of the federal court. But there is no indication that such an order was ever issued. Moreover, the injunctive relief granted does not appear to be directed at restraining any state court proceedings.11
23
If in fact there were no pending prosecutions, the relief could have impact only on future events in which the challenged statutes might be invoked by the appellants. Since this remains a live, continuing controversy, such relief would ordinarily be appropriate if justified by the merits of the case. Gray v. Sanders, 372 U.S. 368, 376, 83 S.Ct. 801, 806, 9 L.Ed.2d 821. But here we have a special situation, for three of the statutes in question have since been repealed by the Texas Legislature. Article 474 of the Penal Code, the breach-of-the-peace provision, has been replaced by §§ 42.01, 42.03, and 42.05 in the new codification; Art. 482, the abusive-language statute, has been replaced by § 42.01; and Art. 439, the unlawful-assembly provision, has been replaced by § 42.02. These new enactments, which replaced the earlier statutes as of January 1, 1974, are more narrowly drawn than their predecessors. Whatever the merits of the District Court's conclusions on the earlier statutes, any challenge to the new provisions presents a different case.
24
Thus, although there was a live controversy as to these statutes at the time of the District Court decree, if there are no pending prosecutions under the old statutes, the portions of the District Court's judgment relating to them has become moot.12 But because we cannot determine with certainty whether there are pending prosecutions, or even whether the District Court intended to enjoin them if there were, the proper disposition is to remand the case to the District Court for further findings. Cf. Differenderfer v. Central Baptist Church, 404 U.S. 412, 92 S.Ct. 574, 30 L.Ed.2d 567. If there are no pending prosecutions under these superseded statutes, the District Court should vacate both the declaratory and injunctive relief as to them. If there are pending prosecutions remaining against any of the appellees,13 then the District Court should make findings as to whether these particular prosecutions were brought in bad faith, with no genuine expectation of conviction.14 If it so finds, the court will enter an appropriate decree which this Court may ultimately review, both as to the propriety of federal court intervention in the circumstances of the case, and as to the merits of any holding striking down the state statutes.
25
As to the two remaining statutes, Vernon's Ann.Tex.Civ.St., Arts. 5154d and 5154f, it is not necessary for other reasons for us at this time to reach any Younger questions or the merits of the decision below as to the statutes' constitutionality. As to these also we must remand for a determination as to whether there are pending prosecutions, although if there are none the appellees might still be threatened with prosecutions in the future since these statutes are still in force. But if there are only threatened prosecutions, and the appellees sought only declaratory relief as to the statutes, then the case would not be governed by Younger at all, but by Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505, decided this Term.15 The District Court, of course, did not have the benefit of our opinion in Steffel at the time of its decision. We therefore think it appropriate to vacate the judgment of the District Court as to these statutes and remand for further findings and reconsideration in light of Steffel v. Thompson. If there are pending prosecutions then the District Court should determine whether they were brought in bad faith, for the purpose of harassing appellees and deterring the exercise of First Amendment rights, so that allowing the prosecutions to proceed will result in irreparable injury to the appellees. If there are no pending prosecutions and only declaratory relief is sought, then Steffel clearly controls and no Younger showing need be made.
26
In summary, we affirm the decree granting injunctive relief against police misconduct, with appropriate modifications to delete reference to the five statutes held unconstitutional by the District Court. We vacate the District Court's judgment as to those five statutes, and remand for further proceedings consistent with this opinion.
27
It is so ordered.
28
Decree affirmed in part, and vacated in part and case remanded with directions.
29
Mr. Justice POWELL took no part in the decision of this case.
30
Mr. Chief Justice BURGER, with whom Mr. Justice WHITE and Mr. Justice REHNQUIST join, concurring in the result in part and dissenting in part.
31
On June 1, 1966, appellee United Farm Workers Organizing Committee, AFL-CIO (the union), called a strike of farmworkers in Starr County, Texas. After the strike collapsed a year later the union and six individuals active in the strike1 brought this action in United States District Court for the Southern District of Texas against five Texas Rangers, the Sheriff, two Deputy Sheriffs, and a Special Deputy of Starr County, Texas, and a Starr County Justice of the Peace, alleging that the defendants unlawfully suppressed the plaintiffs and the class of union members and sympathizers they purported to represent in the exercise of their First and Fourteenth Amendment rights of free speech and association during the strike.2 The suppression was alleged to have been caused in part through the enforcement of six Texas statutes which plaintiffs claimed to have been unconstitutional. The District Court, convened as a three-judge court, agreed with plaintiffs as to five of the statutes3 and declared them to be unconstitutional and enjoined their enforcement. The District Court also entered an injunction prohibiting acts of misconduct by defendants and those associated with them. 347 F.Supp. 605 (1972). The five Texas Rangers appealed the District Court's judgment to this Court. We noted probable jurisdiction. 411 U.S. 963, 93 S.Ct. 2143, 36 L.Ed.2d 683 (1973).
32
The Court today vacates the judgment of the District Court as it deals with the relief granted against the enforcement of the statutes, and remands for further findings and for reconsideration, in the case of the relief granted with respect to two of the statutes, in light of Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). In so doing the Court avoids significant legal issues which are fairly presented in this appeal and which must be resolved now. They deserve full treatment for the benefit not only of the District Court on remand but of other courts that must wrestle with the myriad problems presented in applying the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). I undertake to deal with some of those issues. The Court neither accepts nor rejects my reasoning and ultimate resolution of the issues; the majority simply chooses not to reach the issues. I, therefore, concur only in the result of the remand. The Court also affirms the decree granting injunctive relief against police misconduct as slightly modified to reflect the remand. For the reasons stated below I dissent from that result.
33
* The facts as found by the District Court are not in dispute. A review of those facts is necessary for an understanding of some of the difficult legal issues in this appeal.
34
(a) On June 8, 1966, one Eugene Nelson, a strike leader, was taken into custody and detained for four hours without any charges being filed against him. While in custody he was questioned about his strike activities and informed that the Federal Bureau of Investigation would be investigating him regarding alleged threats of violence against the local courthouse and buses used to transport Mexican farmworkers to their jobs. When taken into custody, Nelson was at an international bridge attempting to persuade workers to join the strike.
35
(b) Another union leader, Raymond Chandler, was arrested on October 12, 1966, at a picketing site when he refused to obey an order to disperse and became involved in an altercation using loud and vociferous language to a deputy sheriff of Starr County. Chandler was apparently arrested for violating Tex. Penal Code, Art. 474, the disturbing-the-peace statute. Bond was set at $500 although the maximum punishment for violation of Art. 474 is a $200 fine. Two of Chandler's friends who came to the courthouse to make bond were verbally abused and threatened with arrest by deputy sheriffs.
36
(c) On October 24, 1966, a deputy sheriff used violence and the threat of deadly force to subdue the president of the local union who, while under arrest and in custody in a courthouse, had just shouted out 'viva la huelga' with some fellow arrestees.
37
(d) On November 9, 1966, the Texas Rangers, who had by this time been called in to help keep peace and order during the pendency of the strike, served a warrant of arrest on a Reynaldo De La Cruz, charging a violation of Tex.Rev.Civ.Stat., Art. 5154f, on November 3, 1966, when members of the union picketed produce packing sheds located on Missouri Pacific Railroad tracks. While De La Cruz was under arrest two Texas Rangers made anti-union statements to the arrestee.
38
(e) Charges were filed by a deputy sheriff against Reynaldo De La Cruz on December 28, 1966, for impersonating an officer by wearing a badge in and around the union hall. The deputy had not witnessed the offense; the badge was of the shield type, while sheriff's deputies and Texas Rangers wore badges in the shape of stars. The deputy who filed the charges admitted that he was aware of his own knowledge that similar badges had been worn by De La Cruz and another when directing traffic at Union functions. Also on that date Librado De La Cruz attempted to grab a nonstriking farm employee by the coat, and was arrested immediately and charged with assault.
39
(f) On the evening of January 26, 1967, about 20 union supporters were gathered at the Starr County Courthouse to conduct a peaceful prayer vigil in protest of arrests of union members earlier that day. Two members of the group mounted the courthouse steps, and when the group was ordered by a sheriff's deputy to leave the courthouse grounds, the two on the steps refused and were arrested for unlawful assembly, apparently in violation of Tex. Penal Code, Art. 439. One of the two arrested was Gilbert Padilla, the first of the named plaintiffs to enter the chronology. The other was a minister.
40
(g) On February 1, 1967, nine persons were arrested and charged with disturbing the peace, apparently in violation of Tex. Penal Code, Art. 474, for exhorting field laborers to quit work.
41
(h) Three months later, on May 11, 1967, other events occurred: appellant Captain A. Y. Allee of the Texas Rangers informed picketing strikers that he could get them a job within 10 minutes at the union-demanded wage. Also on that day a Texas Ranger shoved two persons connected with the strike, including one of the named plaintiffs, David Lopez. Both of those shoved attempted to file charges of assault but the county attorney determined that there was insufficient evidence to go forward with the complaint.
42
(i) On the following day, May 12, 1967, strikers were allowed to peacefully picket in accordance with Tex.Rev.Civ.Stat., Art. 5154d, the mass picketing statute, and were allowed to depart after being detained for a short period of time at the picketing site.
43
(j) On May 12, 1967, Eugene Nelson was arrested for threatening the life of certain Texas Rangers although appellant Allee did not take the threat seriously, and a bond was not accepted until tax records could be checked following the weekend, although there was no valid reason for waiting since the deputy sheriff to whom the bond was tendered knew full well that the surety was a landowner and a person of substance in Starr County.
44
(k) On May 26, 1967, 14 persons were arrested for trespassing. The charge was later changed to unlawful assembly, and this charge was superseded by a secondary picketing and boycott charge. Ten persons were arrested when they allegedly attempted to block a train carrying produce. The second group of four persons was arrested later in the evening. The four were apparently arrested for unsuccessfully encouraging bystanders to picket and were ultimately charged with secondary picketing and boycotting upon the complaint of a railroad special agent who had left the scene prior to the events which caused this second series of arrests. Included in the group was Magdaleno Dimas, another named plaintiff. The findings recite that a Mrs. Krueger, another one of this second group, was arrested 'either for taking a picture of her husband's arrest or attempting to strike Captain Allee with her camera in her husband's defense.' 347 F.Supp., at 615. The four arrestees in the second group were roughly handled. The findings concerning this entire incident are not set out with charity.
45
(l) On May 31, 1967, the Texas Rangers arrested apparently 13 pickets for allegedly violating the mass picketing statute, Tex.Rev.Civ.Stat., Art. 5154d.
46
(m) On June 1, 1967, the Texas Rangers sought and arrested Magdaleno Dimas at the home of Kathy Baker, another named plaintiff, for allegedly having previously brandished a gun in a threatening manner in the presence of a special deputy of Starr County. Two other persons were arrested for assisting Dimas to evade arrest. Benjamin Rodriguez, a third named plaintiff, was arrested at the same time the police apprehended Dimas, although the District Court does not explain why Rodriguez was arrested. The arrests of Dimas and Rodriguez were found by the District Court to have been accomplished in a brutal and violent fashion.
47
(n) While the strike was in progress the Starr County Sheriff's office assisted in the regular distribution of a strongly anti-union newspaper. Each week deputies would pick up and then locally distribute copies of the paper.
II
48
In this part, I consider the problems of mootness and standing. In Part III, I discuss Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its applicability to the facts of the instant case. The injunction against police misconduct is dealt with in Part IV.
49
The principal relief granted by the District Court was the declaration that five Texas statutes are unconstitutional and the injunction against their continued enforcement. The District Court determined on the facts as it found them that appellees had overcome the burden imposed by Younger v. Harris, supra, and the court was, therefore, empowered to reach the merits of the constitutional challenges to the statutes. Although the District Court recited evidence as to arrests and charges having been filed, the court did not make explicit findings of specific prosecutions pending at the time of the commencement of the action or at the time of its decision. Since the facts of possible prosecutions pending now and at the commencement of the action are crucial to matters of mootness, standing, and the applicability of Younger v. Harris, we should remand to the District Court for further findings in this area.
50
Three of the statutes held to be unconstitutional by the District Court have been repealed by the Texas Legislature in a new codification of the Penal Code. Articles 439 (unlawful assembly), 474 (breach of the peace), and 482 (abusive language) can no longer be employed to arrest appellees or members of their class. On remand the District Court should first determine whether appellees had standing to commence this action respecting these three statutes. 'It must be alleged that the plaintiff 'has sustained or is immediately in danger of sustaining some direct injury' as the result of the challenged statute or official conduct. Massachusetts v. Mellon, 262 U.S. 447,488, 43 S.Ct. 597, 67 L.Ed. 1078 (1923).' O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974). Even if by the operation, i.e., arrest and prosecution, or threatened operation of the statutes, one or more appellees had standing to commence this action, the District Court will be obliged to resolve the 'question as to the continuing existence of a live and acute controversy.' Steffel v. Thompson, 415 U.S., at 459, 94 S.Ct., at 1216. (Emphasis in original.) See also Indiana Employment Sec. Division v. Burney, 409 U.S. 540, 93 S.Ct. 883, 35 L.Ed.2d 62 (1973). Since the statutes have been repealed threats of future prosecution can no longer suffice to establish a live controversy. The injury that appellees faced and face must then result from pending prosecutions under each of the challenged statutes now repealed.
51
The two other statutes held unconstitutional by the District Court, Tex.Rev.Civ.Stat., Arts. 5154d and 5154f, have not been repealed, and I cannot say, on this record, that the possibility of future prosecutions is or is not real. The District Court should examine the standing of appellees to challenge the constitutionality of these statutes under the same guidelines as applicable to the three repealed statutes, except that prosecution remains hypothetically possible under these two statutes. See Steffel v. Thompson, supra, 415 U.S., at 459, 94 S.Ct., at 1215.
52
We have recently held in O'Shea v. Littleton, supra, 414 U.S., at 493, 94 S.Ct., at 675, that standing must be personal to and satisfied by 'those who seek to invoke the power of federal courts.' See also Bailey v. Patterson, 369 U.S. 31, 32—33, 82 S.Ct. 549, 550, 551, 7 L.Ed.2d 512 (1962); Long v. District of Columbia, 152 U.S.App.D.C. 187, 190, 469 F.2d 927, 930 (1972). If an individual named appellee was and is subject to prosecution under one of the challenged statutes, that appellee would have standing to challenge the constitutionality of that statute. If an individual named appellee was and is threatened with prosecution under one of the extant statutes, that appellee would have standing to challenge its constitutionality. Prosecutions instituted against persons who are not named plaintiffs cannot form the basis for standing of those who bring an action. In particular, a named plaintiff cannot acquire standing to sue by bringing his action on behalf of others who suffered injury which would have afforded them standing had they been named plaintiffs; it bears repeating that a person cannot predicate standing on injury which he does not share. Standing cannot be acquired through the back door of a class action. O'Shea v. Littleton, supra; Bailey v. Patterson, supra, 369 U.S., at 32—33, 82 S.Ct., at 550—551.4
53
In addition to any individual named appellees the union itself may have standing to challenge the constitutionality of the statutes. The Court has long recognized that the First Amendment's guarantees of free speech and assembly have an important role to play in labor disputes. Thornhill v. Alabama, 310 U.S. 88, 102, 60 S.Ct. 736, 744, 84 L.Ed. 1093 (1940); Thomas v. Collins, 323 U.S. 516, 532, 65 S.Ct. 315, 323, 89 L.Ed. 430 (1945). I agree with the Court that unions, as entities, in addition to union members and organizers, are entitled to the benefit of those guarantees and that a union may sue under 42 U.S.C. § 1983 to enforce its First Amendment rights.
54
Here the appellee union alleged in the complaint that it was deprived of its constitutional rights of free speech and assembly by the actions of defendants in enforcing the challenged Texas statutes. If, as claimed by the union, union members were subject to unlawful arrest and threats of arrest in their First Amendment protected organizational activity on behalf of the union, the union would have derivatively suffered or have been in the position to suffer derivatively real injury and would have standing to complain of that injury and bring this action.5 If a person who was a member of the union both at the time of that person's arrest and at the present time would have standing individually to challenge the constitutionality of one of the five statutes, then the union itself would have such standing, since the inability of the union member to communicate freely restricts the ability of the union to communicate. As the Court states, ante, at 819 n. 13, a union 'can act only through its members.'6
III
55
(A)
56
The District Court on remand will be faced with the issue of the applicability of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), to appellees. Since standing and the continued existence of a live controversy as to the action in relation to the three repealed statutes depend on the pendency of prosecutions under each of the statutes, it will be necessary for appellees to meet Younger standards to reach the constitutional merits of any of these statutes.
57
To the extent that they can prove standing, the individual appellees will be seeking federal court interference in their own state court prosecutions. The union, to the extent that it has standing, will be seeking interference with state court prosecutions of its members. There is an identity of interest between the union and its prosecuted members; the union may seek relief only because of the prosecutions of its members,7 and only by insuring that such prosecutions cease may the union vindicate the constitutional interests which it claims are violated. The union stands in the place of its prosecuted members even as it asserts its own constitutional rights. The same comity considerations apply whether the action is brought in the name of the individual arrested union members or in the name of the union, and there is no inequity in requiring the union to abide by the same legal standards as its members in suing in federal court. If the union were unable to meet the requirements of Younger, its members subject to prosecution would have a full opportunity to vindicate the First Amendment rights of both the union and its members in the state court proceedings. Any other result would allow the easy circumvention of Younger by individuals who could assert their claims of First Amendment violations through an unincorporated association of those same individuals if the association is immune from Younger burdens.
58
This result is not contrary to that reached in Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974), where the arrest of one demonstrator was not imputed for Younger purposes to petitioner who brought suit for declaratory relief against the application of the state statute under which the other demonstrator was arrested and petitioner was only threatened with arrest. There was no indication in that case that petitioner and the arrestee were associated otherwise than in the distribution of antiwar handbills. Furthermore, in Steffel, the petitioner departed to avoid arrest while his companion in handbilling stayed. The joint activity of petitioner and his companion in Steffel ceased prior to the arrest of the companion. Finally, there is no indication that the arrestee would seek to or be able to vindicate petitioner's rights in the criminal proceeding, and on such a factual showing it would be unfair to require petitioner to await the outcome of state court proceedings he was not a party to and had no apparent connection with. No such unfairness inheres in this situation where the union might be required to await state criminal trials of its members to vindicate rights it holds in common with those members and was deprived of derivatively only through prosecutions directed at those members.8
59
The process of determining when Younger applies becomes more complex when dealing with the two extant statutes. If there are state court prosecutions against the individual appellees or the union under these statutes then Younger requirements must be met. If there are prosecutions against members of the union under these statutes (and the union asserts standing derivatively) then the Younger hurdle must be met for the reasons stated. If standing of individual appellees or the union to challenge one of the statutes is based solely on threatened prosecutions, and the relief pursued below with respect to that statute is declaratory only, then Younger does not apply. Steffel v. Thompson, supra. If appellees seek injunctive relief with respect to the operation or enforcement of a statute for the violation of which prosecutions are threatened, the question of whether Younger applies has not been answered by this Court. Steffel v. Thompson, supra, at 463, 94 S.Ct., at 1218. Since the issue may well not arise on remand it would be premature now to attempt to resolve it. The development of what relief was and still is requested by appellees is a matter best left to the District Court on remand.9 Finally, if the union sues on the basis of injury to its members, then since, as to a statute challenged, one member must, if suing on his own behalf, meet the requirements of Younger, the union must do so, even though other of its members would not be so burdened if they had brought suit individually. The requirements of Younger are not to be evaded by artificial niceties.
60
(B)
61
The next step in the analysis is to define the burdens imposed by Younger v. Harris. There we held that before a federal court can interfere with state criminal proceedings great and immediate irreparable injury must be shown 'above and beyond that associated with the defense of a single prosecution brought in good faith.' 401 U.S., at 48, 91 S.Ct., at 752. The injury must include, except in extremely rare cases, 'the usual prerequisites of bad faith and harassment.' Id., at 53, 91 S.Ct., at 755. In Younger the Court made clear that the mere fact that the statute under which the federal court plaintiff is being proceeded against is unconstitutional on its face 'does not in itself justify an injunction against good-faith attempts to enforce it.' Id., at 54, 91 S.Ct., at 755. The Court described as 'important and necessary' the State's task of enforcing statutes which may have an incidental inhibiting effect on First Amendment rights, 'against socially harmful conduct that the State believes in good faith to be punishable under its laws and the Constitution.' 401 U.S., at 52, 91 S.Ct., at 754.
62
Younger principles not only mandate federal court abstention in the case of good faith-enforcement of facially unconstitutional statutes, but also require that claims of unconstitutionality, other than facial invalidity, be presented, in the first instance, to the state court in which the criminal prosecution involving the claimed constitutional deprivation is pending. In Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971), the United States District Court upheld the challenged Louisiana anti-obscenity statute as valid on its face10 but ruled that the arrests of the state court defendants-federal court plaintiffs and the seizure of the allegedly obscene materials were invalid because of a lack of a prior adversary hearing on the character of the materials. We held such interference to be improper:
63
'The propriety of arrests and the admissibility of evidence in state criminal prosecutions are ordinarily matters to be resolved by state tribunals, see Stefanelli v. Minard, 342 U.S. 117, (72 S.Ct. 118, 96 L.Ed. 138) (1951), subject, of course, to review by certiorari or appeal in this Court or, in a proper case, on federal habeas corpus. Here Ledesma was free to present his federal constitutional claims concerning arrest and seizure of materials or other matters to the Louisiana courts in the manner permitted in that State. Only in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable injury can be shown is federal injunctive relief against pending state prosecutions appropriate. . . . There is nothing in the record before us to suggest that Louisiana officials undertook these prosecutions other than in a good-faith attempt to enforce the State's criminal laws.' Id., at 84—85, 91 S.Ct., at 676.
64
A state court is presumed to be capable of fulfilling its 'solemn responsibility . . . '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, 551, 28 L.Ed. 542) (1884)." Steffel v. Thompson, 415 U.S., at 460—461, 94 S.Ct., at 1216. Yet a state court cannot effectively fulfill its responsibility when the prosecutorial authorities take deliberate action, in bad faith, unfairly to deprive a person of a reasonable and adequate opportunity to make application in the state courts for vindication of his constitutional rights. When such an individual, deprived of meaningful access to the state courts, faces irreparable injury to constitutional rights of great and immediate magnitude, either in the immediate suit or in the substantial likelihood of 'repeated prosecutions to which he will be subjected,' Younger v. Harris, 401 U.S., at 49, 91 S.Ct., at 753, and the injury demands prompt relief, federal courts are not prevented by considerations of comity from granting the extraordinary remedy of interference in pending state criminal prosecutions.
65
A breakdown of the state judicial system which would allow federal intervention was the allegation of appellants in Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). In that case appellants had offered to prove, inter alia, that the state prosecutor was holding public hearings at which were being used photostatic copies of illegally seized evidence, which evidence had already been ordered suppressed by a state court. It was alleged further that the prosecutor was threatening to use other copies of the illegally seized documents before the grand jury to obtain indictments. If proved, the allegations in Dombrowski made out a clear case of a breakdown in the checks and balances in the state criminal justice system. The courts had lost control of a prosecutor embarked on an alleged campaign of harassment of appellants, designed to discourage the exercise of their constitutional rights. Under such circumstances federal intervention would be authorized.
66
To meet the Younger test the federal plaintiff must show manifest bad faith and injury that is great, immediate, and irreparable, constituting harassment of the plaintiff in the exercise of his constitutional rights, and resulting in a deprivation of meaningful access to the state courts. The federal plaintiff must prove both bad faith and requisite injury. In judging whether a prosecution has been commenced in bad faith, the federal court is entitled to take into consideration the full range of circumstances surrounding the prosecutions which the federal plaintiff would have the district court interfere with. A federal court must be cautious, however, and recognize that our criminal justice system works only by according broad discretion to those charged to enforce laws. Cf. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). In this regard, prosecutors will often, in good faith, choose not to prosecute or to discontinue prosecutions for entirely legitimate reasons. An individual, once arrested, does not have a 'right' to proceed to trial in order to make constitutional claims respecting his arrest. Conversely, prosecutors may proceed to trial with less than an 'open and shut' case against the defendants. In Cameron v. Johnson, 390 U.S. 611, 621, 88 S.Ct. 1335, 1341, 20 L.Ed.2d 182 (1968), the Court noted:
67
'(T)he question for the District Court was not the guilt or innocence of the persons charged; the question was whether the statute was enforced against them with no expectation of convictions but only to discourage exercise of protected rights. The mere possibility of erroneous application of the statute does not amount 'to the irreparable injury necessary to justify a disruption of orderly state proceedings.' Dombrowski v. Pfister, supra, 380 U.S. at 485, 85 S.Ct. 1116, at 1120. The issue of guilt or innocence is for the state court at the criminal trial; the State was not required to prove appellants guilty in the federal proceeding to escape the finding that the State had no expectation of securing valid convictions.' (Footnote omitted.)
68
One step removed from the decision of the prosecutor to prosecute is the decision of the policeman to arrest. The bad-faith nature of a prosecution may sometimes be inferred from the common activity of the prosecutor and the police to employ arrests and prosecutions unlawfully to discourage the exercise of civil rights. The conclusion that the prosecutor and police are acting as one to deprive persons of their rights should not be inferred too readily on the basis of police action alone. Just as is the case with prosecutors, the police possess broad discretion in enforcing the criminal laws. Police cannot reasonably be expected to act upon a realization that a law that they are asked to enforce may be unconstitutional. Even when police cross the line of legality as they enforce statutes thay may not be acting willfully; the precise contours of probable cause, like the Fourth Amendment's stricture against unreasonable search and seizure, are far from clear. When a policeman willfully engages in patently illegal conduct in the course of an arrest there still should be clear and convincing proof, before bad faith can be found, that this was part of a common plan or scheme, in concert with the prosecutorial authorities, to deprive plaintiffs of their constitutional rights. Willful, random acts of brutality by police, although abhorrent in themselves, and subject to civil remedies, will not form a basis for a finding of bad faith. The police may, of course, embark on a campaign of harassment of an individual or a group of persons without the knowledge or assistance of the prosecutorial authorities. The remedy in such a case would not lie in enjoining state prosecutions, which would provide no real relief, but in reaching down through the State's criminal justice system to deal directly with the abuses at the primary law enforcement level. Cf. Lankford v. Gelston, 364 F.2d 197 (CA4 1966). See, infra.
69
Unless the injury confronting a state criminal defendant is great, immediate, and irreparable, and constitutes harassment, the prosecution cannot be interfered with under Younger. The severity of the standard reflects the extreme reluctance of federal courts to interfere with pending state criminal prosecutions.
70
If the federal court plaintiff seeks injunctive or declaratory relief based on claimed facial invalidity of a statute, the injury may derive not only from the prosecutions the plaintiff is currently facing where a violation of that statute is alleged, but also from the probability of future prosecutions under that statute. Evidence of multiple arrests and prosecutions of persons other than the federal plaintiff under that statute may well bear on the likelihood of future arrests and prosecutions of the federal plaintiff. A state criminal defendant seeking relief against more than one statute, must prove the requisite degree of injury separately for each statute he challenges. Any other rule would encourage insubstantial and multiple attacks on the constitutionality of state statutes by persons hoping to meet the strict standards of injury by accumulating effects under many state provisions in order to reach the constitutional merits of only one or a few. Furthermore, the considerations of comity which underlie Younger would be ill served if a federal court were to employ a showing of bad faith and harassment respecting prosecutions brought under one facially challenged statute as a pretext for searching a State's statutory code for unconstitutional provisions to strike down. Cf. Boyle v. Landry, 401 U.S. 77, 81, 91 S.Ct. 758, 760, 27 L.Ed.2d 696 (1971).
71
The same rule must, perforce, apply when the relief sought is limited in scope, by way of constitutional challenges to statutes as applied, to interference only with specific prosecutions. Since no relief is requested which could affect the future operation or enforcement of a statute (as would be the case when a statute is challenged on its face), the injury must derive solely from the imminence of the single prosecution. The possibility of future arrests, under color of any state statutes, is irrelevant to proof of injury from the challenged prosecution. It will be the rare case, indeed, where a single prosecution provides the quantum of harm that will justify interference. On the other hand, in the case of an attack on the facial constitutionality of a statute, the likely prospect of multiple prosecutions, brought also in bad faith and without hope of conviction, for the violation of the same statute which formed the basis for the pending prosecutions of the federal court plaintiff, might well constitute a sufficient showing of harm to justify a federal court's decision to reach the constitutionality of the statute.
72
A special problem in proof of Younger injury arises with the union: shall the union be permitted to aggregate the injuries which all its members will reasonably suffer under the operation of statutes, or must the injury test be satisfied independently by one person who was and is a member of the union? For the reason expressed above as to why prosecutions of union members should be attributed to the union for Younger purposes—that any other rule would allow of easy and unfair circumvention of Younger—the necessary injury must be confronted by any single member.11 If no single member faces Younger injury, then the union, which operates through its members, cannot realistically be said to face such injury.
73
With these principles in mind it is appropriate to turn to the facts in the instant case. The District Court assumed that Younger was applicable, and held, on the basis of the facts that it found, that the requirements of Younger had been met. The District Court then proceeded to the constitutional merits of each of the challenged statutes. The District Court's Younger holding was in error.
74
There is no reason for deferring review of the District Court's legal conclusion that Younger was satisfied, although the Court would, apparently, allow appellees to have a second chance at proving this element of their case. Although the trial of this action took place in 1968, the District Court's decision had not been handed down by the time Younger was issued in 1971. In September 1971, the parties were requested by the District Court to file supplemental briefs on the impact of Younger on this cause. In their briefs, appellants argued that the federal court was required under Younger to abstain, while appellees argued that Younger did not apply to the instant case, and, alternatively, that if Younger did apply the test of Younger had been met. Appellees did not request hearings to adduce further proof relating to Younger bad faith and harassment. There is, therefore, no basis for reopening the matter on remand, and taking up valuable judicial time relitigating an issue as to which both sides have had their day in court. Failure to decide now whether appellees have met the Younger requirements with respect to challenges to the five statutes whose validity remains in issue would cause needless delay in a lawsuit already far removed in time from the events which precipitated it. With respect to the three repealed statutes, if the action is not moot appellees will be met with a Younger burden they have been unable to satisfy. With respect to the two extant statutes, the action will be moot, appellees will have failed to satisfy Younger, or appellees will not have had to satisfy Younger, only having been threatened with prosecutions. In any case, resolution of the Younger issues in this case at this time by the Court will expedite proceedings on remand and remove from this suit controverted matters ripe for judicial determination.
75
Appellees can, of course, seek to further amend their amended complaint to make further allegations of fact regarding the events which took place during the one-year strike, and the District Court will then have to judge whether after nearly seven years 'justice so requires' the amendment. Fed.Rule Cov.Proc. 15(a).
76
The findings of fact by the District Court do not justify the legal conclusion that any of the appellees were in danger of suffering harm that was great, immediate, and irreparable, and constituted harassment, with respect to any one of the statutes. Such a showing must be made by each appellee separately regarding each statute. I now turn to an analysis of the facts, first on the injuryharassment issue, and then to determine whether there was bad faith.
77
The only persons found to have been arrested for violating Tex.Penal Code, Art. 439 (unlawful assembly), were the two leaders of the January 26, 1967, prayer vigil. For five months thereafter no arrests took place under this statute. At the end of May 1967, 14 other persons12 were arrested for trespassing, and later charged with unlawful assembly. These latter charges were pending only for three days before being dropped and replaced with charges of secondary picketing and boycotting. The evidence relating to Art. 439 is clearly insufficient to sustain any inference that any appellee, including the union, faced the prospect of repeated arrests in the future under this statute. There is no showing that having to defend the state criminal actions instituted as a result of the arrests that were made under the statute would be in any manner unusually onerous and seriously damaging to any of the arrestees. They were traditional arrests with traditional burdens of defending against charges.
78
On two occasions arrests were made for violating Tex. Penal Code, Art. 474 (breach of the peace): of Raymond Chandler on October 12, 1966, and of nine persons (apparently not including Mr. Chandler13) on February 1, 1967. Thereafter, to June 1967, no arrests were made and no charges were filed for violations of this provision. No inference can be made that any person faces the likelihood of repeated and unwarranted arrests under this statute. There is nothing in the findings to suggest and no reason to believe that the few prosecutions resulting from enforcement of this statute will result in any extraordinary hardship differing from that ordinarily associated with the usual defense of a criminal action.
79
It appears that five members of the Union were arrested for violating Tex. Penal Code, Art. 482 (abusive language) on January 26, 1967, about midway through the strike.14 The absence of Younger injury is even clearer in the challenge to this statute.
80
Another example of a single instance of enforcement of a statute is the arrest of 13 persons, on one occasion, May 31, 1967, for violating Tex.Rev.Civ.Stat., Art. 5154d (mass picketing). The facts are totally insufficient for a finding of the serious injury required under Younger.
81
Fourteen persons who were arrested for trespassing on May 26, 1967, were later charged with unlawful assembly, but those charges were pending only for three days, at the end of which time the 14 were charged with violating Tex.Rev.Civ.Stat., Art. 5154f, the secondary picketing and boycott provision. The only other time persons were charged with violating Art. 5154f was on November 9, 1966, when a complaint was filed against 10 persons for illegal picketing on November 3, 1966. The District Court does not challenge the grounds for issuing the complaint, but questions only the manner of the custody following the arrest of one of the 10, but that objectionable action had nothing whatever to do with the offense for which the individual was arrested. As with the four other statutes found unconstitutional, the test of serious injury under Younger is not met by such an inadequate showing of future harm.
82
Appellees also failed to prove that any prosecutions which might have resulted from these arrests were brought in bad faith. Very nearly all the evidence of bad faith found by the District Court relates to activities of the Texas Rangers and the Starr County Sheriff's Office, not of the prosecutors. Evidence bearing on the allegations of prosecutorial bad faith is restricted to three items: first, the District Court is mildly critical of an investigation, apparently inadequate, made by the County Attorney of Starr County into the shoving incident of May 11, 1967, and the subsequent decision not to go forward with the complaint which had been filed by the two men who had been shoved; second, a prosecutor conceivably could have had something to do with the excessively high bond set after Raymond Chandler's arrest on October 12, 1966, but there is no finding on this point; third, those arrested on February 1, 1967, for disturbing the peace were informed by the Justice of the Peace, on instructions from the County Attorney, that if they ever appeared in that court again under the same charge they would have to post bond.15 The record does not contain a finding that prosecutions were brought and then promptly dropped; in one instance persons arrested for violating an unchallenged statute on May 26, 1967, were later charged first with violating Tex. Penal Code, Art. 439, a challenged statute, and subsequently with violating Tex.Rev.Civ.Stat., Art. 5154f, also a challenged statute.
83
Nor can the isolated instances of police misconduct by Texas Rangers and Starr County Sheriff's deputies found by the District Court turn a series of prosecutions, apparently instituted in good faith (even assuming that all persons who were arrested are or were facing prosecutions as a result of their arrests), into a campaign of terror against the union which could only be remedied by recourse to the federal courts. Excluding the distribution of the antiunion newspaper, which activity could hardly be said to have a direct and immediate disruptive effect on daily picketing and other organizational efforts of the Union, the District Court found only 12 days during this long controversy in which law enforcement or judicial officers of Texas acted in an improper fashion in dealing with strikers or strike sympathizers; this is an average of one per month. One of the 'abuses' found by the District Court was the shoving of two persons. On another occasion, May 26, 1967, a camera was confiscated, two men were held near a passing train, and four persons were 'roughly handled,' 347 F.Supp., at 615, after their arrest by the Texas Rangers. All that happened on May 11, 1967, was that Captain Allee16 of the Texas Rangers told picketing strikers that he could get them all jobs at the Union-demanded wage. '(P)icketing occurred every day,' of the strike with the exception of Sundays, id., at 612, yet no allegedly harassing action was taken against the strikers after June 8, 1966, to October 12, 1966, a period of over four months, or after February 1, 1967, to May 11, 1967, a period of over three months. Finally, it is not surprising that the Texas Rangers and Sheriff's deputies would have found occasions to enforce laws governing picketing, assembly, and the peace of the community, against persons who sought to attain their goals by picketing, assembling, and otherwise making themselves and their cause heard in Starr County. Judging by the infrequency of occasions of enforcement of such laws the strike did not become an object of obsessive interest with the law enforcement personnel in Starr County.
84
In sum, the findings cannot be read as showing either bad faith or the requisite injury with respect to the operation and enforcement of any of the five challenged statutes. Appellees have totally failed to satisfy the demands of Youner v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).
IV
85
The District Court not only declared five Texas statutes unconstitutional and enjoined their enforcement, but also issued an injunction against what I shall term 'police misconduct.' The injunction against police misconduct is issued on behalf of the named plaintiffs and the class they represent,
86
'to-wit, the members of Plaintiff United Farm Workers Organizing Committee, AFL—CIO, and all other persons who because of their sympathy for or voluntary support of the aims of said Plaintiff union have engaged in, are engaging in, or may hereafter engage in peaceful picketing, peaceful assembly, or other organizational activities of or in support of said Plaintiff union or who may engage in concert of action with one or more of Plaintiffs for the solicitation of agricultural workers or others to join or make common cause with them in matters pertaining to the work and labor of agricultural workers.'
87
The injunction itself appears as paragraph 16 of the District Court's Final Judgment. This remarkable injunction reads in full as follows:
88
'16. It is further ordered, adjudged and decreed by the Court that Defendants, their successors, agents and employees, and persons acting in concert with them, are permanently enjoined and restrained from any of the following acts or conduct directed toward or applied to Plaintiffs and the persons they represent, to-wit:
89
'A. Using in any manner Defendants' authority as peace officers for the purpose of preventing or discouraging peaceful organizational activities without adequate cause.
90
'B. Interfering by stopping, dispersing, arresting, or imprisoning any person, or by any other means, with picketing, assembling, solicitation, or organizational effort without adequate cause.
91
'C. Arresting any person without warrant or without probable cause which probable cause is accompanied by intention to present appropriate written complaint to a court of competent jurisdiction.
92
'D. Stopping, dispersing, arresting or imprisoning any person without adequate cause because of the arrest of some other person.
93
'E. As used in this Paragraph 16, Subparagraphs A, B and D above, the term 'adequate cause' shall mean (1) actual obstruction of a public or private passway, road, street, or entrance which actually causes unreasonable interference with ingress, egress, or flow of traffic; or (2) force or violence, or the threat of force or violence, actually committed by any person by his own conduct or by actually aiding, abetting, or participating in such conduct by another person; or (3) probable cause which may cause a Defendant to believe in good faith that one or more particular persons did violate a criminal law of the State of Texas other than those specific laws herein declared unconstitutional, or a municipal ordinance.'
94
This Court lacks jurisdiction to review this injunction on direct appeal from the District Court; but assuming this Court has jurisdiction over this portion of the final judgment, it should be remanded to the District Court along with the remainder of its judgment. For my part, if I were to rule on the merits of the injunction against police misconduct I would reverse.
95
(A)
96
The Court does not have jurisdiction on appeal over paragraph 16 of the Final Judgment. The proper course is to vacate and remand this portion of the District Court judgment for entry of a fresh judgment from which timely appeal can be taken to the Court of Appeals for the Fifth Circuit. See Edelman v. Townsend, 412 U.S. 914, 915, 93 S.Ct. 2733, 37 L.Ed.2d 141 (1973).
This Court may hear on appeal
97
'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.' 28 U.S.C. § 1253.
98
Congress has provided, by 28 U.S.C. § 2281 that no interlocutory or permanent injunction against the enforcement, operation, or execution of a state statute may be granted on the ground of unconstitutionality unless the application for the injunction is heard and determined by a three-judge district court.
99
'This Court has more than once stated that its jurisdiction under the Three-Judge Court Act is to be narrowly construed since 'any loose construction of the requirements of (the Act) would defeat the purposes of Congress . . . to keep within narrow confines our appellate docket.' Phillips v. United States, (312 U.S. 246, 250, 61 S.Ct. 480, 483, 85 L.Ed. 800).' Goldstein v. Cox, 396 U.S. 471, 478, 90 S.Ct. 671, 675, 24 L.Ed.2d 663 (1970). In consonance with that philosophy in Public Service Comm'n v. Brashear Freight Lones, 312 U.S. 621, 61 S.Ct. 784, 85 L.Ed. 1083 (1941), the Court, in a unanimous opinion written by Mr. Justice Black, held that following the denial by a three-judge District Court of the application for an injunction against an allegedly unconstitutional state statute, a single District Judge should have heard the motion to assess damages arising out of the temporary restraining order granted by a single District Judge pending the hearing by the three-judge court on the injunction application.
100
'The limited statutory duties of the specially constituted three judge District Court had been fully performed before the motion for assessment of damages was filed. For section 266 of the Judicial Code provides for a hearing by three judges, instead of one district judge, only in connection with adjudication of a very narrow type of controversy applications for temporary and permanent injunctions restraining state officials from enforcing state laws or orders made pursuant thereto upon the ground that the state statutes are repugnant to the Federal Constitution. The motion for damages raised questions not within the statutory purpose for which the two additional judges had been called. Those questions were therefore for the consideration of the District Court in the exercise of its ordinary jurisdiction, and the three judge requirement of section 266 had no application.' Id., at 625, 61 S.Ct., at 787 (footnotes omitted).
101
The Court was careful to state that a three-judge court 'has jurisdiction to determine every question involved in the litigation pertaining to the prayer for an injunction, in order that a single lawsuit may afford final and authoritative decision of the controversy between the parties.' Id., at 625 n. 5, 61 S.Ct., at 787.
102
We reaffirmed our Brashear holding In Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971). In Perez the appellees were charged in informations filed in state court with violations of a Louisiana statute and a local parish ordinance. The three-judge Federal District Court 'held' the state statute to be facially constitutional,17 but ruled that arrests and seizures of materials were invalid and entered a suppression order and required the return of the seized materials to the appellees. The District Court also expressed its view that the parish ordinance was invalid. The District Judge who initially referred the action to the three-judge court adopted that court's view and declared the ordinance invalid. We refused to review the decision concerning the local ordinance, stating:
103
'Even if an order granting a declaratory judgment against the ordinance had been entered by the three-judge court below (which it had not), that court would have been acting in the capacity of a single-judge court. We held in Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1967), that a three-judge court was not properly convened to consider the constitutionality of a statute of only local application similar to a local ordinance. Under 28 U.S.C. § 1253 we have jurisdiction to consider on direct appeal only those civil actions 'required . . . to be heard and determined' by a three-judge court. Since the constitutionality of this parish ordinance was not 'required . . . to be heard and determined' by a three-judge panel, there is no jurisdiction in this Court to review that question.
104
'The fact that a three-judge court was properly convened in this case to consider the injunctive relief requested against the enforcement of the state statute, does not give this Court jurisdiction on direct appeal over other controversies where there is no independent jurisdictional base. Even where a three-judge court is properly convened to consider one controversy between two parties, the parties are not necessarily entitled to a three-judge court and a direct appeal on other controversies that may exist between them. See Public Service Comm'n v. Brashear Freight Lines, 306 U.S. 204, 59 S.Ct. 480, 83 L.Ed. 608 (1939).' 401 U.S., at 86—87, 91 S.Ct., at 677.18 (Footnote omitted.)
105
Brashear Freight Lines and Perez are authority for the proposition that a three-judge district court convened under s 2281 must restrict itself narrowly to the adjudication of those matters which bear directly on the grant or denial of injunctive relief against state statutes. So long as the constitutional claim is not insubstantial the three-judge court may consider nonconstitutional claims urged alternatively in support of the injunctive relief, and we have jurisdiction to review such nonconstitutional portions of the district court's decision. Florida Lime & Avocado Growers v. Jacobsen, 362 U.S. 73, 80 S.Ct. 568, 4 L.Ed.2d 568 (1960).19 Indeed, a three-judge district court would be required to give priority to consideration of a statutory claim over a constitutional claim. Rosado v. Wyman, 397 U.S. 397, 402, 90 S.Ct. 1207, 1212, 25 L.Ed.2d 442 (1970). However, in ruling on nonconstitutional challenges to the operation of state statutes, the district court remains concerned with the same form of relief—injunctive—directed at the same state statutes, as it would if it were ruling on the constitutional claim, and is not, therefore, involved in solving any 'other controversy' between the parties. Perez, supra. Similarly, the only noninjunctive relief regularly granted by three-judge district courts is a declaratory judgment of unconstitutionality. Not only is a finding of unconstitutionality a necessary concomitant to the enjoining of the operation and enforcement of a state statute on constitutional grounds, but a declaration of unconstitutionality does not reach in its effect beyond the same state statutes which are subject to the injunction.
106
A three-judge district court should not venture beyond these two narrow and necessary exceptions to the general rule that a three-judge court is not required to hear any matters beyond the constitutional challenge to the statute which led to its convening. For example, a three-judge court should not retain jurisdiction to assess damages, Brashear Freight Lines, supra, or to insure enforcement of a decree which it entered adjudging the statute unconstitutional. Cf. Hamilton v. Nakai, 453 F.2d 152, 160 161 (CA9 1971), cert. denied, 406 U.S. 945, 92 S.Ct. 2044, 32 L.Ed.2d 332 (1972).
Any other rule would
107
'encumber the district court, at a time when district court calendars are overburdened, by consuming the time of three federal judges in a matter that was not required to be determined by a three-judge court.' Rosado v. Wyman, supra, 397 U.S., at 403, 90 S.Ct., at 1213.
108
And any other rule would burden this Court through the unnecessary expansion of our jurisdiction on direct appeal. The District Court's broad injunction against police misconduct in this case without even a semblance of reasoned analysis provides a compelling example of the need for a review by an intermediate appellate tribunal to sort out the facts and issues necessary for review here, should that occur. This case presents a glaring example of an undue burden placed on this Court: to wrestle with difficult legal issues on the basis of a record inadequately digested and analyzed by the District Court and untouched by the scrutiny of the Court of Appeals. From its findings of fact the District Court has drawn almost impressionistic conclusions regarding the scope and impact of the perceived abuses of the Texas law enforcement authorities. It is as if the District Court viewed the conduct of the police and prosecutors as directed against one individual, rather than many, over a brief period of time, rather than a year. This is an instance where the remoteness of intervening appellate review would have provided a salutary perspective on the factually complex and impassioned debate waged in the trial court.
109
Even if the general rule were other than that no ancillary relief in aid of injunctive relief should issue from a three-judge court, the injunction against police misconduct in this case could not be considered to be ancillary to the primary relief so as to confer jurisdiction upon this Court on direct appeal. Enjoining enforcement of state statutes is a far different enterprise from enjoining specific police misconduct; a separate review of the first by this Court and the second by a court of appeals would not result in a fragmented appeal. In the application of the Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), test of 'bad faith and harassment' a court would look to certain specific types of police and prosecutorial misconduct as a predicate for reaching the merits of the constitutional attack against state statutes for the violation of which persons are being subject to prosecution. A finding of police harassment necessary for the issuance of an injunction against police misconduct is not quasi-jurisdictional as with Younger, but is a determination on the merits. Under Younger a court is concerned principally with police and prosecutorial misconduct which denies to a person subject to the state laws a fair opportunity to have his challenges to those laws heard by the state courts, whereas, in weighing whether to issue an injunction against police misconduct, a court would likely be concerned solely with police misconduct which itself denies persons their constitutional rights. While there may be some overlap of facts possibly relevant to the quasi-jurisdictional Younger v. Harris determination and to the merits of whether to grant an injunction against police misconduct, there would be no identity of proof, the legal standards to apply to the facts would not be the same, and the nature and object of each determination would be different.
110
Thus, an injunction against police misconduct would not be so related to injunctive relief against the operation of unconstitutional state statutes as to require a three-judge district court, even if Brashear and Perez did not apply to foreclose our consideration of paragraph 16 of the District Court's judgment. Upon the issuance of the declaratory and injunctive relief against the five Texas statutes the three-judge District Court should have dissolved itself and referred the case to the single District Judge to whom the case was originally assigned for whatever further proceedings were necessary.
111
(B)
112
Assuming, arguendo, that this Court has jurisdiction to review the injunction against police misconduct, the proper course would be to vacate and remand that portion of the District Court's judgment.
113
The injunction against police misconduct was entered by the District Court without benefit of independent analysis in its findings or opinion. The penultimate paragraph in the opinion of the District Court is the sole discussion provided regarding the injunction that was later entered:
114
'In addition, plaintiffs are also entitled to a permanent injunction restraining the defendants not only from any future acts enforcing the statutes here declared void, but also restraining them from any future interference with the civil rights of plaintiffs and the class they represent. Hairston v. Hutzler, 334 F.Supp. 251 (W.D.Pa.1971).' 347 F.Supp., at 634.
115
The District Court's catch-all discussion of the facts appears to have been made solely with a view of overcoming the Younger barrier to adjudication of appellees' claims and not to establish any legal rationale for the injunction against police misconduct. The injunction's crucial term 'adequate cause' is defined, in part, by reference to the declarations of unconstitutionality of the five Texas statutes. Evidently, the District Court's purpose in including this further injunctive relief against police misconduct in its judgment was to protect the integrity and aid in the enforcement of the primary declaratory and injunctive relief ordered by the Court. If the Court now remands to the District Court that part of the judgment which encompasses the primary relief, it would seem logical to also send back for reconsideration the relief which the District Court apparently premised on the existence of the primary relief. Since it is possible that following the remand the District Court will conclude that no relief directed against the operation or enforcement of the challenged statutes should be entered, the District Court should have the opportunity to consider whether the injunction against police misconduct would any longer be appropriate.
116
(C)
117
Finally, I am satisfied the District Court abused its discretion when it granted this injunction against police misconduct.
118
The injunction as entered would allow review by the federal court, by way of contempt proceedings, of claims which would, at the same time, be sub judice in ongoing state criminal proceedings. For example, assume a deputy sheriff made an arrest without a warrant and incident to that arrest seized evidence relevant to proof of a criminal offense. The arrestee can seek to suppress the evidence in his state criminal trial on the ground that the arrest which preceded the seizure was not based upon probable cause. The injunction against police misconduct would permit a trial of the same claim in federal court. Final Judgment, par. 16(C). Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971), and Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), would require a Younger showing before any contempt citation could issue in such a situation. An injunction which contemplates this type of interference in state criminal proceedings is invalid on its face. 'A federal court should not intervene to establish the basis for future intervention that would be so intrusive and unworkable.' O'Shea v. Littleton, 414 U.S., at 500, 94 S.Ct., at 678. Although O'Shea dealt with the propriety of an injunction which would purport to punish as contempt actions of judicial officers taken during the course of state criminal proceedings, the potential for disruption of state criminal proceedings, which was a principal concern in our analysis in O'Shea, is just as real a possibility in the case of the District Court's injunction against police misconduct. However accomplished
119
'Such a major continuing intrusion of the equitable power of the federal courts into the daily conduct of state criminal proceedings is in sharp conflict with the principles of equitable restraint which this Court has recognized . . ..' Id., at 502, 94 S.Ct., at 679.
120
The injunction, in its paragraph 16 (B), appears to leave no room for temporary restraint for investigation of suspicious activities premised on less than probable cause which this Court has held to be constitutional. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
121
The problems created by this injunction against police misconduct are manifold. In the enforcement of the injunction, the District Court will likely place itself on a collision course with our holdings in Younger and O'Shea. The fact that the law enforcement officers in Starr County and, indeed, in the whole State of Texas will be compelled to enforce the law only under threat of criminal contempt proceedings in the United States District Court of the Southern District of Texas, illustrates the reckless course of action embarked upon by the District Court in issuing this injunction. Federal district courts were not meant to be super-police chiefs, disciplining individual law enforcement officers for infractions of the rules for arrests and searches and seizures. A district court which improperly intrudes upon local police functions 'can undermine the important values of police self-restraint and self-respect.' Long v. District of Columbia, 152 U.S.App.D.C. 187, 194, 469 F.2d 927, 934 (1972) (Wright, J., concurring).
122
For all the problems that this injunction is likely to create, I find no reason to believe that it will provide meaningful relief for appellees. Comment, The Federal Injunction as a Remedy for Unconstitutional Police Conduct, 78 Yale L.J. 143 (1969).20
123
The District Court, here, has entered an injunction which is ineffective in providing relief to appellees and likely to provoke extreme resentment among those the injunction restrains21 and genuine concern among all those who still adhere to the proposition that state and federal relations should be governed by notions of comity.
124
In any event, I believe that the facts which were found by the District Court22 do not support the granting of a prohibitory or mandatory injunction against police conduct.
125
'(R)ecognition of the need for a proper balance in the concurrent operation of federal and state courts counsels restraint against the issuance of injunctions against state officers engaged in the administration of the State's criminal laws in the absence of a showing of irreparable injury which is "both great and immediate." (Younger v. Harris, 401 U.S. 37, 46, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).)' O'Shea v. Littleton, 414 U.S., at 499, 94 S.Ct., at 678.
126
Injunctions against police misconduct should be issued, if at all, in only the most extreme cases, see, e.g., Lankford v. Gelston, 364 F.2d 197 (CA4 1966), and then only to the extent that the relief granted would not 'unnecessarily involve the courts in police matters and dictate action in situations in which discretion and flexibility are most important. In order for a court to grant an injunction, there should be a showing that there is a substantial risk that future violations will occur.' Long v. District of Columbia, supra, 152 U.S.App.D.C., at 192, 469 F.2d, at 932. The acts of police misconduct were few and scattered. There was no basis for the issuance of an injunction against police misconduct.
1
Jurisdiction in the District Court was based upon 28 U.S.C. § 1343, and a three-judge court was properly convened under 28 U.S.C. § 2281.
2
Named in the caption were Francisco Medrano, Kathy Baker, David Lopez, Gilbert Padilla, Magdaleno Dimas, and Benjamin Rodriguez. Other individual plaintiffs were named in the body of the complaint.
3
The judgment was also rendered for all members of the plaintiff United Farmworkers Organizing Committee, AFL-CIO, and 'all other persons who because of their sympathy for or voluntary support of the aims of said Plaintiff union have engaged in, are engaging in, or may hereafter engage in peaceful picketing, peaceful assembly, or other organizational activities of or in support of said Plaintiff union or who may engage in concert of action with one or more of Plaintiffs for the solicitation of agricultural workers or others to join or make common cause with them in matters pertaining to the work and labor of agricultural workers.'
4
This was not the only abuse of the bonding process. Later when Eugene Nelson was arrested for threatening the life of a Texas Ranger, see infra, at 807, the deputy sheriff rejected for no valid reason a bond he knew was good.
5
Deputy Paul Pena filed these charges against Reynaldo De La Cruz although Pena had never seen the offense, which was wearing a badge around the union hall. The badge in question was of the shield type, while those worn by the officers were of the star type, and Pena conceded that he knew that De La Cruz and Dimas had worn similar badges when directing traffic at union functions. 347 F.Supp., at 616.
6
La Casita Farms, Inc. v. United Farm Workers Organizing Comm., Dist. Ct. of Starr County, Texas, No. 3809, July 11, 1967. Appellants' exhibit D—1 in the District Court.
7
'It is further ordered, adjudged and decreed by the Court that Defendants, their successors, agents and employees, and persons acting in concert with them, are permanently enjoined and restrained from any of the following acts or conduct directed toward or applied to Plaintiffs and the persons they represent, to-wit:
'A. Using in any manner Defendants' authority as peace officers for the purpose of preventing or discouraging peaceful organizational activities without adequate cause.
'B. Interfering by stopping, dispersing, arresting, or imprisoning any person, or by any other means, with picketing, assembling, solicitation, or organizational effort without adequate cause.
'C. arresting any person without warrant or without probable cause which probable cause is accompanied by intention to present appropriate written complaint to a court of competent jurisdiction.
'D. Stopping, dispersing, arresting or imprisoning any person without adequate cause because of the arrest of some other person.
'E. As used in this Paragraph 16, Subparagraphs A, B and D above, the term 'adequate cause' shall mean (1) actual obstruction of a public or private passway, road, street, or entrance which actually causes unreasonable interference with ingress, egress, or flow of traffic; or (2) force or violence, or the threat of force or violence, actually committed by any person by his own conduct or by actually aiding, abetting, or participating in such conduct by another person; or (3) probable cause which may cause a Defendant to believe in good faith that one or more particular persons did violate a criminal
law of the State of Texas other than those specific laws herein declared unconstitutional, or a municipal ordinance.'
8
It is argued that Public Service Comm'n v. Brasher Freight Lines, 312 U.S. 621, 61 S.Ct. 784, 85 L.Ed. 1083, holds that there is no ancillary jurisdiction in three-judge courts. In Brashear the plaintiffs refused to pay fees assessed under the statute challenged in their suit; when their attack on the statute failed the defendants sought damages, and the Court held that the damages action should have been heard by a single district judge. This was not a proper exercise of ancillary jurisdiction because the defendants' claim was completely unrelated to the basis on which the three-judge court was convened, and there was no purpose of be served by having it determined by the same tribunal. But we have held that '(o)nce (a three-judge court is) convened the case can be disposed of below or here on any ground, whether or not it would have justified the calling of a three-judge court.' United States v. Georgia Public Service Comm'n, 371 U.S. 285, 287—288, 83 S.Ct. 397, 399, 9 L.Ed.2d 317. Indeed, the three-judge court is required to hear the nonconstitutional attack upon the statute, Florida Lime & Avocado Growers v. Jacobsen, 362
U.S. 73, 85, 80 S.Ct. 568, 575, 4 L.Ed.2d 568; Rosado v. Wyman, 397 U.S. 397, 402, 90 S.Ct. 1207, 1212, 25 L.Ed.2d 442. The instant case is nearly identical to Milky Way Productions, Inc. v. Leary, 397 U.S. 98, 90 S.Ct. 817, 25 L.Ed.2d 78, in which we considered and summarily affirmed the judgment of a three-judge court regarding the assertedly illegal application of a New York statute which was concededly constitutional; this decision was rendered in the exercise of ancillary jurisdiction acquired as a result of a facial attack on a different but related state statute. D.C., 305 F.Supp. 288, 296 (SDNY). The part of the decree enjoining police misconduct is intimately bound up with and ancillary to the remainder of the court's judgment, and even Brashear held that the court has jurisdiction to hear every question pertaining to the prayer for the injunction 'in order that a single lawsuit may afford final and authoritative decision of the controversy between the parties.' 312 U.S., at 625 n. 5, 61 S.Ct., at 787.
This view was followed in Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701, in which a three-judge District Court had sustained a state obscenity statute against the federal constitutional attack that provided the basis for convening it. But the District Court went on to determine that the arrests of the plaintiffs and the seizures incident thereto were unconstitutional because no prior adversary hearing had been held, 304 F.Supp. 662, 667 (ED La.), and therefore issued an order suppressing the evidence in the state court case. We reviewed that order on the merits, assuming it was properly before us as an appeal 'from an order granting or denying . . . an interlocutory or permanent injunction in any civil' action required to be heard by a three-judge court. See 401 U.S., at 89, 91 S.Ct., at 679 (Stewart, J., concurring). The basis for ancillary jurisdiction here is at least as compelling.
It is true that we also held in Perez that an order striking down a local parish ordinance was not properly before us. But that was an attack on a wholly different enactment not involving detailed factual inquries common with an ancillary to the constitutional challenge on the state law supporting the three-judge court's jurisdiction. And central to our determination was the finding that the order regarding the parish ordinance 'was not issued by a three-judge court, but rather by Judge Boyle, acting as a single district judge.' Id., at 87, 91 S.Ct., at 678. That is obviously not the case here.
9
In NAACP v. Thompson, 357 F.2d 831 (CA5), the Court of Appeals reversed the denial of relief by the District Court, concluding that defendants believed that plaintiffs' demonstrations 'must be suppressed and that, in order to do so, they intend to take advantage of any law or ordinance, however inapplicable or however slight the transgression, and to continue to harass and intimidate (the) plaintiffs.' Id., at 838. The findings here show at least that much. In Lankford v. Gelston, 364 F.2d 197 (CA4) (en banc), the court ordered the police enjoined from making searches without probable cause after concluding that the 'raids were not isolated instances undertaken by individual police officers.' Id., at 202. See also Wolin v. Port of New York Authority, 392 F.2d 83 (CA2).
10
There was no challenge here to the District Court's conclusion that this was a proper class action, see n. 14, infra. Moreover as, to this portion of the decree, directed at police misconduct generally rather than to any particular state statute, named plaintiffs intimidated by misconduct may represent all others in the class of those similarly abused, without regard to the asserted state statutory basis fro the police actions.
11
The decree is not directed at any state prosecutors or state judges with the exception of one justice of the peace whose involvement apparently consisted of issuing warrants without proper basis. Moreover it does not in terms restrain any prosecutions, but only the 'arresting, imprisoning, filing criminal charges, threatening to arrest, or ordering or advising or suggesting that (appellees) disperse under authority of any portion of' the statutes struck down. A reading of the complaint suggests that no injunctive relief against pending prosecutions was ever requested. As to whether there in fact were pending prosecutions, our only guidance from the District Court is a passing reference that 'plaintiffs (are) now facing charges in the Texas courts . . .,' 347 F.Supp., at 620, but it is impossible to determine against whom any charges might be pending. Indeed, in light of the District Court's failure to treat the statutes separately in their findings of harassment, we cannot be certain that their reference to pending charges here is a finding that there are charges pending under each of the statutes. And if there are state charges pending, we could do no more than speculate as to why trial never commenced during the five-year pendency of the federal suit. This may be the result of an informal agreement with the federal court, or it may indicate that the State has abandoned any intention to bring these cases to trial. Indeed it may be that state law would bar prosecutions now after such a delay. See Vernon's Ann.St.Tex.Const., Art. I, § 10, and Vernon's Ann.Tex.Code Crim.Proc., Art. 32.01. It is therefore appropriate to remand to the District Court for further findings on this question.
12
In the federal system an appellate court determines mootness as of the time it considers the case, not as of the time it was filed. Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 713, 35 L.Ed.2d 147.
13
If there are pending prosecutions against members of the class not named in the action, the District Court must find that the class was properly represented. Appellants stipulated in District Court that 'plaintiffs are properly representative of the class they purport to represent.' Document 33, 2, Record on Appeal. In this regard we note that the union was itself a named plaintiff, and the judgment was issued on behalf of all of its members.
In this case the union has standing as a named plaintiff to raise any of the claims that a member of the union would have standing to raise. Unions may sue under 42 U.S.C. § 1983 as persons deprived of their rights secured by the Constitution and laws, American Fed. of State, Co., & Mun. Emp. v. Woodward, 406 F.2d 137 (CA8), and it has been implicitly recognized that protected First Amendment rights flow to unions as well as to their members and organizers. Carpenters and Joiners Union v. Ritter's Cafe, 315 U.S. 722, 62 S.Ct. 807, 86 L.Ed. 1143; cf. NAACP v. Button, 371 U.S. 415, 428, 83 S.Ct. 328, 335, 9 L.Ed.2d 405. If, as alleged by the union in its complaint, its members were subject to unlawful arrests and intimidation for engaging in union organizational activity protected by the First Amendment, the union's capacity to communicate is unlawfully impeded, since the union can act only through its members. The union then has standing to complaint of the arrests and intimidation and bring this action.
14
See Dombrowski v. Pfister, 380 U.S. 479, 490, 85 S.Ct. 1116, 1123, 14 L.Ed.2d 22: '(A)ppellants have attacked the good faith of the appellees in enforcing the statutes, claiming that they have invoked, and threaten to continue to invoke, criminal process without any hope of ultimate success, but only to discourage appellants' civil rights activities.' See also Cameron v. Johnson, 390 U.S. 611, 619—620, 88 S.Ct. 1335, 1339—1340, 20 L.Ed.2d 182 and Perez v. Ledesma, 401 U.S. 82, 118 n. 11, 91 S.Ct. 674, 693, 27 L.Ed.2d 701 (separate opinion of Brennan, J.).
15
We do not reach the question reserved in Steffel as to whether a Younger showing is necessary to obtain injunctive relief against threatened prosecutions. See generally Note, Federal Relief Against Threatened State Prosecutions: The Implications of Younger, Lake Carriers and Roe, 48 N.Y.U.L.Rev. 965 (1973).
1
Francisco Medrano, Kathy Baker, David Lopez, Gilbert Padilla, Magdaleno Dimas, and Benjamin Rodriguez.
2
Jurisdiction is alleged under 28 U.S.C. §§ 1343, 2201, 2202, 2281, and 2284, and 42 U.S.C. §§ 1983 and 1985.
3
Tex.Penal Code, Arts. 439 (unlawful assembly), 474 (breach of the peace), and 482 (abusive language) (1952), and Tex.Rev.Civ.Stat., Arts. 5154d (mass picketing) and 5154f (secondary picketing and boycotting) (1971).
4
The Court states that 'the District Court must find that the class was properly represented.' Ante, at 819 n. 13. I take this to mean that the named plaintiff must be an appropriate representative for the class; the named plaintiff must have suffered the same injury as the class purportly represented, and that injury must be sufficient to accord the named plaintiff standing to sue in his own right. Bailey v. Patterson, 369 U.S. 31, 32—33, 82 S.Ct. 549, 550—551, 7 L.Ed.2d 512 (1962); Long v. District of Columbia, 152 U.S.App.D.C. 187, 190, 469 F.2d 927, 930 (1972).
5
See Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 1368, 31 L.Ed.2d 636 (1972); NAACP v. Button, 371 U.S. 415, 428, 83 S.Ct. 328, 335, 9 L.Ed.2d 405 (1963).
6
The union may, of course, be directly subject to criminal prosecution. A union prosecuted or threatened with prosecution qua union would be in the same position as an individual litigant with regard to standing and Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The special rules outlined in this opinion are designed for the more common situation where the union is not injured by being where the against directly in the operation of the criminal laws, but, rather, is injured derivatively from prosecutions and threats of prosecutions of its members.
7
See n. 6, supra.
8
There is no need now to attempt to further define those situations in which it would be proper to impute the state criminal prosecution of one who is not a federal plaintiff to one who is. The association of the state criminal defendant and the federal plaintiff necessary for imputation will depend upon facts of joint activity and common interest.
9
The relief open to the District Court on remand is limited by the repeal of three of the statutes. Since the statutes no longer exist, they can have no conceivable further 'chilling effect' on others in the exercise of their constitutionally protected rights. The justification has disappeared, then, for permitting a litigant to challenge a statute, not because of the unconstitutional application of the statute as to his conduct, but rather because the statute might as to other persons be applied in an unconstitutional manner. By repealing the statutes, the State has 'remove(d) the seeming threat or deterrence to constitutionally protected expression,' and the District Court should not apply the 'strong medicine' of the overbreadth doctrine, which 'has been employed by the Court sparingly and only as a last resort' to hold statutes unconstitutional on their face. Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973).
10
But see n. 18, infra.
11
Proof that other union members have been subject to bad-faith arrests and prosecutions under a statute may be relevant to a claim that a union member faces injury from a substantial likelihood of being arrested and prosecuted in bad faith in the future under color of the same statute. See supra, at 838.
12
See 7.20 of the amended complaint, and 347 F.Supp. 605, 615 (SD Tex.1972).
13
See 7.13 of the amended complaint, and 347 S.Supp., at 614.
14
See 7.11 of the amended complaint, and 347 F.Supp., at 613.
15
I can find nothing improper with this warning. A second offense, under the same statute is usually looked on more seriously than a first.
16
Captain Allee is, apparently, no longer in active service having retired from the Texas Rangers. According to appellees he is no longer a member of the Texas Department of Public Safety. Defendants' Supplemental District Court Brief 6 (filed Oct. 26, 1971). If appellees no longer have an active controversy with Captain Allee the suit should be dismissed as moot as to him.
17
See n. 18, infra.
18
The Court would rely on Milky Way Productions, Inc. v. Leary, 397 U.S. 98, 90 S.Ct. 817, 25 L.Ed.2d 78 (1970), for the contrary proposition: that this Court has jurisdiction to review by way of direct appeal ancillary matters decided by a three-judge district court in the exercise of its primary three-judge court review of the constitutional validity of state statutes. The precedential value of our summary affirmance in this case is somewhat diminished by the fact that the Brashear problem was not raised in any of appellees' briefs. In fact, one of the appellees, contrary to Brashear, appears to concede that this Court possesses jurisdiction to review ancillary matters decided by a properly convened three-judge court. Motion to Dismiss or Affirm of Appellee Frank S. Hogan 9 (No. 992, O.T.1969). It should be noted, further, that Perez v. Ledesma, which included a full analysis of ancillary jurisdiction on direct appeal from a three-judge court, was decided after Milky Way was summarily affirmed.
Although the District Court in Perez stated that it held the state statute to be facially constitutional, the decision of the District Court there that the arrests and seizures were unconstitutional appears in fact to have derived from a broad condemnation of obscenity statutes, including the state statute dealt with in that case, without provisions incorporated therein protecting against criminal liability for acts occurring prior to an adversary judicial determination of obscenity. 304 F.Supp. 662, 667 (ED La.1969). In effect, then, the District Court in Perez acted broadly to render a nullity the Louisiana statute, see id., at 673 (Rubin, J., dissenting), and we, therefore, properly had jurisdiction over the appeal and we properly ruled on the question of whether the District Court could have interfered with state court criminal proceedings by invalidating arrests and seizures made without any prior adversary hearing.
19
The Court in Jacobsen reasoned that '(t)o hold to the contrary would be to permit one federal district judge to enjoin enforcement of a state statute on the ground of federal unconstitutionality whenever a nonconstitutional ground of attack was also alleged, and this might well defeat the purpose of § 2281.' 362 U.S., at 80, 80 S.Ct., at 573. (Emphasis in original.)
To hold that a three-judge district court is not required to hear matters unrelated to the determination of whether to enjoin the enforcement of state statutes would pose no similar risk.
20
The author of the Comment wrote:
'For tolerated constitutional violations, a prohibitory injunction which only ordered high police officials to refrain from unconstitutional conduct would be useless—the problem lies not in what such officials are doing but in what they are not doing. Purely prohibitory injunctions would have to be directed against the subordinate policemen who were acting illegally. But courts would be unable to enforce such injunctions unless they were willing to take over the task of disciplining individual policemen. Such an approach would be highly inefficient since the court's only means of enforcing its orders directly against policemen—a contempt proceeding—would be far too cumbersome and heavy-handed to deal effectively with large numbers of alleged violations.
'If the injunction is to have any utility as a remedy for tolerated police abuse, it must require affirmative action by the officials responsible for police conduct.' 78 Yale L.J., at 147. (Emphasis in original; footnote omitted.)
21
The injunction may run against all the judicial officers in Texas. A Justice of the Peace is a named defendant. The injunction enjoins 'Defendants, their successors, agents and employees, and persons acting in concert with them.' O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), would seem plainly to forbid anticipatory interference by an injunction in the official activities of state judicial officers.
22
See Parts I and III, supra.
| 89
|
417 U.S. 21
94 S.Ct. 2098
40 L.Ed.2d 628
Stanley BLACKLEDGE, Warden, et al., Petitioners,v.Jimmy Seth PERRY.
No. 72—1660.
Argued Feb. 19, 1974.
Decided May 20, 1974.
Syllabus.
Respondent, a North Carolina prison inmate, had an altercation with another prisoner, and was charged with the misdemeanor of assault with a deadly weapon, of which he was convicted in the State District Court. While respondent's subsequent appeal was pending in the Superior Court, where he had the right to a trial de novo, the prosecutor obtained an indictment covering the same conduct for the felony offense of assault with a deadly weapon with intent to kill and inflict serious bodily injury, to which respondent pleaded guilty. Thereafter, respondent applied for a writ of habeas corpus in Federal District Court, claiming, inter alia, that the felony indictment deprived him of due process. The District Court granted the writ, and the Court of Appeals affirmed. Held:
1. The indictment on the felony charge contravened the Due Process Clause of the Fourteenth Amendment, since a person convicted of a misdemeanor in North Carolina is entitled to pursue his right under state law to a trial de novo without apprehension that the State will retaliate by substituting a more serious charge for the original one and thus subject him to a significantly increased potential period of incarceration. Cf. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656. Pp. 24—29.
2. Since North Carolina, having chosen originally to proceed against respondent on the misdemeanor charge in the State District Court, was precluded by the Due Process Clause from even prosecuting respondent for the more serious charge in the Superior Court, respondent's guilty plea to the felony charge did not bar him from raising his constitutional claim in the federal habeas corpus proceeding. Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235, distinguished. Pp. 29—31.
Affirmed.
Richard N. League, Raleigh, N.C., for petitioners.
James E. Keenan, Durham, N.C., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
While serving a term of imprisonment in a North Carolina penitentiary, the respondent Perry became involved in an altercation with another inmate. A warrant issued, charging Perry with the misdemeanor of assault with a deadly weapon, N.C.Gen.Stat. § 14—33(b)(1) (1969). Under North Carolina law, the District Court Division of the General Court of Justice has exclusive jurisdiction for the trial of misdemeanors. N.C.Gen.Stat. § 7A—272. Following a trial without a jury in the District Court of Northampton County, Perry was convicted of this misdemeanor and given a six-month sentence, to be served after completion of the prison term he was then serving.
2
Perry then filed a notice of appeal to the Northampton County Superior Court. Under North Carolina law, a person convicted in the District Court has a right to a trial de novo in the Superior Court. N.C.Gen.Stat. §§ 7A—290, 15—177.1. The right to trial de novo is absolute, there being no need for the appellant to allege error in the original proceeding. When an appeal is taken, the statutory scheme provides that the slate is wiped clean; the prior conviction is annulled, and the prosecution and the defense begin anew in the Superior Court.1
3
After the filing of the notice of appeal, but prior to the respondent's appearance for trial de novo in the Superior Court, the prosecutor obtained an indictment from a grand jury, charging Perry with the felony of assault with a deadly weapon with intent to kill and inflict serious bodily injury, N.C.Gen.Stat. § 14 32(a) (1969). The indictment covered the same conduct for which Perry had been tried and convicted in the District Court. Perry entered a plea of guilty to the indictment in the Superior Court, and was sentenced to a term of five to seven years in the penitentiary, to be served concurrently with the identical prison sentence he was then serving.2
4
A number of months later, the respondent filed an application for a writ of habeas corpus in the United States District Court for the Eastern District of North Carolina. He claimed that the indictment on the felony charge in the Superior Court constituted double jeopardy and also deprived him of due process of law. In an unreported opinion, the District Court dismissed the petition for failure to exhaust available state remedies. The United States Court of Appeals for the Fourth Circuit reversed, holding that resort to the state courts would be futile, because the Supreme Court of North Carolina had consistently rejected the constitutional claims presented by Perry in his petition. 453 F.2d 856.3 The case was remanded to the District Court for further proceedings.
5
On remand, the District Court granted the writ. It held that the bringing of the felony charge after the filing of the appeal violated Perry's rights under the Double Jeopardy Clause of the Fifth Amendment, made applicable to the States through the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707. The District Court further held that the respondent had not, by his guilty plea in the Superior Court, waived his right to raise his constitutional claims in the federal habeas corpus proceeding. The Court of Appeals affirmed the judgment in a brief per curiam opinion. We granted certiorari, 414 U.S. 908, 94 S.Ct. 218, 38 L.Ed.2d 145, to consider the seemingly important issues presented by this case.
6
* As in the District Court, Perry directs two independent constitutional attacks upon the conduct of the State in haling him into court on the felony charge after he took an appeal from the misdemeanor conviction. First, he contends that the felony indictment in the Superior Court placed him in double jeopardy, since he had already been convicted on the lesser included misdemeanor charge in the District Court. Second, he urges that the indictment on the felony charge constituted a penalty for his exercising his statutory right to appeal, and thus contravened the Due Process Clause of the Fourteenth Amendment.4 We find it necessary to reach only the latter claim.
7
Perry's due process arguments are derived substantially from North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, and its progeny. In Pearce, the Court considered the constitutional problems presented when, following a successful appeal and reconviction, a criminal defendant was subjected to a greater punishment than that imposed at the first trial. While we concluded that such a harsher sentence was not absolutely precluded by either the Double Jeopardy or Due Process Clause, we emphasized that 'imposition of a penalty upon the defendant for having successfully pursued a statutory right of appeal or collateral remedy would be . . . a violation of due process of law.' Id., at 724, 89 S.Ct. at 2080. Because 'vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial,' id., at 725, 89 S.Ct. at 2080, we held that an increased sentence could not be imposed upon retrial unless the sentencing judge placed certain specified findings on the record.
8
In Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584, the Court was called upon to decide the applicability of the Pearce holding to Kentucky's two-tiered system of criminal adjudication. Kentucky, like North Carolina, allows a misdemeanor defendant convicted in an inferior trial court to seek a trial de novo in a court of general jurisdiction.5 The appellant in Colten claimed that the Constitution prevented the court of general jurisdiction, after trial de novo, from imposing a sentence in excess of that imposed in the court of original trial. This Court rejected the Pearce analogy. Emphasizing that Pearce was directed at insuring the absence of 'vindictiveness' against a criminal defendant who attacked his initial conviction on appeal, the Court found such dangers greatly minimized on the facts presented in Colten. In contrast to Pearce, the court that imposed the increased sentence after retrial in Colten was not the one whose original judgment had prompted an appellate reversal; thus, there was little possibility that an increased sentence on trial de novo could have been motivated by personal vindictiveness on the part of the sentencing judge. Hence, the Court thought the prophylactic rule of Pearce unnecessary in the de novo trial and sentencing context of Colten.
9
The Pearce decision was again interpreted by this Court last Term in Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714, in the setting of Georgia's system under which sentencing responsibility is entrusted to the jury. Upon retrial following the reversal of his original conviction, the defendant in Chaffin was reconvicted and sentenced to a greater term than had been imposed by the initial jury. Concentrating again on the issue of vindictiveness, the Court found no violation of the Pearce rule. It was noted that the second jury was completely unaware of the original sentence, and thus could hardly have sought to 'punish' Chaffin for his successful appeal. Moreover, the jury, unlike a judge who had been reversed on appeal, could hardly have a stake in the prior conviction or any motivation to discourage criminal defendants from seeking appellate review. Hence, it was concluded that the danger of vindictiveness under the circumstances of the case was 'de minimis,' id., 412 U.S. at 26, 93 S.Ct. at 1982, and did not require adoption of the constitutional rule set out in Pearce.
10
The lesson that emerges from Pearce, Colten, and Chaffin is that the Due Process Clause is not offended by all possibilities of increased punishment upon retrial after appeal, but only by those that pose a realistic likelihood of 'vindictiveness.' Unlike the circumstances presented by those cases, however, in the situation here the central figure is not the judge or the jury, but the prosecutor. The question is whether the opportunities for vindictiveness in this situation are such as to impel the conclusion that due process of law requires a rule analogous to that of the Pearce case. We conclude that the answer must be in the affirmative.
11
A prosecutor clearly has a considerable stake in discouraging convicted misdemeanants from appealing and thus obtaining a trial de novo in the Superior Court, since such an appeal will clearly require increased expenditures of prosecutorial resources before the defendant's conviction becomes final, and may even result in a formerly convicted defendant's going free. And, if the prosecutor has the means readily at hand to discourage such appeals—by 'upping the ante' through a felony indictment whenever a convicted misdemeant pursues his statutory appellate remedy—the State can insure that only the most hardy defendants will brave the hazards of a de novo trial.
12
There is, of course, no evidence that the prosecutor in this case acted in bad faith or maliciously in seeking a felony indictment against Perry. The rationale of our judgment in the Pearce case, however, was not grounded upon the proposition that actual retaliatory motivation must inevitably exist. Rather, we emphasized that 'since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.' 395 U.S., at 725, 89 S.Ct. at 2080. We think it clear that the same considerations apply here. A person convicted of an offense is entitled to pursue his statutory right to a trial de novo, without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration.6 Cf. United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138.
13
Due process of law requires that such a potential for vindictiveness must not enter into North Carolina's two-tiered appellate process. We hold, therefore, that it was not constitutionally permissible for the State to respond to Perry's invocation of his statutory right to appeal by bringing a more serious charge against him prior to the trial de novo.7
II
14
The remaining question is whether, because of his guilty plea to the felony charge in the Superior Court, Perry is precluded from raising his constitutional claims in this federal habeas corpus proceeding. In contending that such is the case, petitioners rely chiefly on this Court's decision last Term in Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235.
15
The precise issue presented in Tollett was 'whether a state prisoner, pleading guilty with the advice of counsel, may later obtain release through federal habeas corpus by proving only that the indictment to which he pleaded was returned by an unconstitutionally selected grand jury.' Id., at 260, 93 S.Ct. at 1604. The Court answered that question in the negative. Relying primarily on the guilty-plea trilogy of Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747; McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763, and Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785, the Court characterized the guilty plea as 'a break in the chain of events which has preceded it in the criminal process.' Id., 411 U.S., at 267, 93 S.Ct., at 1608. Accordingly, the Court held that when a criminal defendant enters a guilty plea, 'he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.' Ibid. Rather, a person complaining of such 'antecedent constitutional violations,' Id., 411 U.S. at 266, 93 S.Ct. at 1607, is limited in a federal habeas corpus proceeding to attacks on the voluntary and intelligent nature of the guilty plea, through proof that the advice received from counsel was not 'within the range of competence demanded of attorneys in criminal cases.' See McMann, supra, 397 U.S. at 771, 90 S.Ct. at 1449.
16
While petitioners' reliance upon the Tollett opinion is understandable, there is a fundamental distinction between this case and that one. Although the underlying claims presented in Tollett and the Brady trilogy were of constitutional dimension, none went to the very power of the State to bring the defendant into court to answer the charge brought against him. The defendants in McMann v. Richardson, for example, could surely have been brought to trial without the use of the allegedly coerced confessions, and even a tainted indictment of the sort alleged in Tollett could have been 'cured' through a new indictment by a properly selected grand jury. In the case at hand, by contrast, the nature of the underlying constitutional infirmity is markedly different. Having chosen originally to proceed on the misdemeanor charge in the District Court, the State of North Carolina was, under the facts of this case, simply precluded by the Due Process Clause from calling upon the respondent to answer to the more serious charge in the Superior Court. Unlike the defendant in Tollett, Perry is not complaining of 'antecedent constitutional violations' or of a 'deprivation of constitutional rights that occurred prior to the entry of the guilty plea.' 411 U.S., at 266, 267, 93 S.Ct., at 1607, 1608. Rather, the right that he asserts and that we today accept is the right not to be haled into court at all upon the felony charge. The very initiation of the proceedings against him in the Superior Court thus operated to deny him due process of law.
17
Last Term in Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29, in explaining why the Double Jeopardy Clause is distinctive, the Court noted that 'its practical result is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of a trial.' Id., at 509, 93 S.Ct., at 878. While our judgment today is not based upon the Double Jeopardy Clause, we think that the quoted language aptly describes the due process right upon which our judgment is based. The 'practical result' dictated by the Due Process Clause in this case is that North Carolina simply could not permissibly require Perry to answer to the felony charge. That being so, it follows that his guilty plea did not foreclose him from attacking his conviction in the Superior Court proceedings through a federal writ of habeas corpus.8
18
Accordingly, the judgment of the Court of Appeals for the Fourth Circuit is affirmed.
19
It is so ordered.
20
Mr. Justice REHNQUIST, dissenting.
21
I would find it more difficult than the Court apparently does in Part I of its opinion to conclude that the very bringing of more serious charges against respondent following his request for a trial de novo violated due process as defined in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Still more importantly, I believe the Court's conclusion that respondent may assert the Court's new-found Pearce claim in this federal habeas action, despite his plea of guilty to the charges brought after his invocation of his statutory right to a trial de novo, marks an unwarranted departure from the principles we have recently enunciated in Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), and the Brady 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).
22
* As the Court notes, in addition to his claim based on Pearce, respondent contends that his felony indictment in the Superior Court violated his rights under the Double Jeopardy Clause of the Fifth Amendment, made applicable to the States through the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Presumably because we have earlier held that 'the jeopardy incident to' a trial does 'not extent to an offense beyond (the trial court's) jurisdiction,' Diaz v. United States, 223 U.S. 442, 449, 32 S.Ct. 250, 251, 56 L.Ed. 500 (1912), the Court rests its decision instead on the Fourteenth Amendment due process doctrine of Pearce. In so doing, I think the Court too readily equates the role of the prosecutor, who is a natural adversary of the defendant and who, we observed in Chaffin v. Stynchcombe, 412 U.S. 17, 27 n. 13, 93 S.Ct. 1977, 1983, 36 L.Ed.2d 714 (1973), 'often request(s) more than (he) can reasonably expect to get,' with that of the sentencing judge in Pearce. I also think the Court passes too lightly over the reasoning of Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), in which we held that imposition of the prophylactic rule of Pearce was not necessary in Kentucky's two-tier system for de novo appeals from justice court convictions, even though the judge at retrial might impose a more severe sentence than had been imposed by the justice court after the original trial.
23
The concurring opinion in Pearce, 395 U.S. 711, 726, 89 S.Ct. 2072, 2081, 23 L.Ed.2d 656, took the position that the imposition of a penalty after retrial which exceeded the penalty imposed after the first trial violated the guarantee against double jeopardy. But the opinion of the Court, relying on cases such as United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), and Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919), specifically rejected such an approach to the case. The Court went on to hold 'that neither the double jeopardy provision nor the Equal Protection Clause imposes an absolute bar to a more severe sentence upon reconviction.' 395 U.S., at 723, 89 S.Ct., at 2079. The Court concluded by holding that due process crequires 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. And since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.' Id., at 725, 89 S.Ct., at 2080. To make certain that those requirements of due process were met, the Court laid down the rule 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. Thus the avowed purpose of the remedy fashioned in Pearce was to prevent judicial vindictiveness from resulting in longer sentences after a retrial following successful appeal.
24
Since in theory if not in practice the second sentence in the Pearce situation might be expected to be the same as the first unless influenced by vindictiveness or by intervening conduct of the defendant, in theory at least the remedy mandated there reached no further than the identified wrong. The same cannot be said here. For while indictment on more serious charges after a successful appeal would present a problem closely analogous to that in Pearce in this respect, the bringing of more serious charges after a defendant's exercise of his absolute right to a trial de novo in North Carolina's two-tier system does not. The prosecutor here elected to proceed initially in the State District Court where felony charges could not be prosecuted, for reasons which may well have been unrelated to whether he believed respondent was guilty of and could be convicted of the felony with which he was later charged. Both prosecutor and defendant stand to benefit from an initial prosecution in the District Court, the prosecutor at least from its less burdensome procedures and the defendant from the opportunity for an initial acquittal and the limited penalties. With the countervailing reasons for proceeding only on the misdemeanor charge in the District Court no longer applicable once the defendant has invoked his statutory right to a trial de novo, a prosecutor need not be vindictive to seek to indict and convict a defendant of the more serious of the two crimes of which he believes him guilty. Thus even if one accepts the Court's equation of prosecutorial vindictiveness with judicial vindictiveness, here, unlike Pearce, the Court's remedy reaches far beyond the wrong it identifies.
25
Indeed, it is not a little puzzling that the Court's remedy is the same that would follow upon a conclusion that the bringing of the new charges violated respondent's rights under the Double Jeopardy Clause. And the Court's conclusion that '(t)he very initiation of the proceedings against (respondent) in the Superior Court thus operated to deny him due process of law' surely sounds in the language of double jeopardy, however, it may be dressed in due process garb.
II
26
If the Court is correct in stating the consequences of upholding respondent's constitutional claim here, and indeed the State lacked the very power to bring him to trial, I believe this case is governed by cases culminating in Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). In that case the State no doubt lacked 'power' to bring Henderson to trial without a valid grand jury indictment; yet that constitutional disability was held by us to be merged in the guilty plea. I do not see why a constitutional claim the consequences of which make it the identical twin of double jeopardy may not, like double jeopardy, be waived by the person for whose benefit it is accorded. Kepner v. United States, 195 U.S. 100, 131, 24 S.Ct. 797, 805, 49 L.Ed. 114 (1904); Harris v. United States, 237 F.2d 274, 277 (CA8 1956); Kistner v. United States, 332 F.2d 978, 980 (CA8 1964).
27
In Tollett v. Henderson, supra, we held that 'just as the guilty pleas in the Brady trilogy were found to foreclose direct inquiry into the merits of claimed antecedent constitutional violations there . . . respondent's guilty plea here alike forecloses independent inquiry into the claim of discrimination in the selection of the grand jury.' 411 U.S., at 266, 93 S.Ct., at 1607. Surely the due process violation found by the Court today is no less 'antecedent' than the constitutional violations claimed to make the grand jury indictment invalid in Tollett v. Henderson, the confession inadmissible in McMann, or the exercise of the right to a jury trial impermissibly burdened in Brady and Parker. As the Court notes, we reaffirmed in Tollett v. Henderson the principle of the Brady trilogy that 'a guilty plea represents a break in the chain of events which has preceded it in the criminal process.' 411 U.S., at 267, 93 S.Ct., at 1608. We went on to say there:
28
'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.' Ibid.
29
The assertion by the Court that this reasoning is somehow inapplicable here because the claim goes 'to the very power of the State to bring the defendant into court to answer the charge brought against him' is little other than a conclusion. Any difference between the issue resolved the other way in Tollett v. Henderson and the issue before us today is at most semantic. But the Court's 'test' not only fails to distinguish Henderson; it also fails to provide any reasoned basis on which to approach such questions as whether a speedy trial claim is merged in a guilty plea. I believe the Court's departure today from the principles of Henderson and the cases preceding it must be recognized as a potentially major breach in the wall of certainty surrounding guilty pleas for which we have found constitutional sanction in those cases.
30
There is no indication in this record that respondent's guilty plea was the result of an agreement with the prosecutor. But the Court's basis for distinguishing the Henderson and Brady cases seems so insubstantial as to permit the doctrine of this case to apply to guilty pleas which have been obtained as a result of 'plea bargains.' In that event it will be not merely the State which stands to lose, but the accused defendant in the position of the respondent as well. Since the great majority of criminal cases are resolved by plea bargaining, defendants as a class have at least as great an interest in the finality of voluntary guilty pleas as do prosecutors. If that finality may be swept aside with the ease exhibited by the Court's approach today, prosecutors will have a reduced incentive to bargain, to the detriment of the many defendants for whom plea bargaining offers the only hope for ameliorating the consequences to them of a serious criminal charge.
III
31
But, if, as I believe, a proper analysis of respondent's constitutional claim produces at most a violation of the standards laid down in North Carolina v. Pearce, supra, I agree with the Court, though not for the reasons it gives, that respondent's claim was not merged in his guilty plea. Imposition of sentence in violation of Pearce is not an 'antecedent constitutional violation,' since sentence is customarily imposed after a plea of guilty, and is a separate legal event from the determination by the Court that the defendant is in fact guilty of the offense with which he is charged.
32
If respondent's claim is properly analyzed in terms of Pearce, I would think that a result quite different from that mandated in the Court's opinion would obtain. Pearce and the decisions following it have made it clear that the wrong lies in the increased sentence, not in the judgment of conviction, and that the remedy for a Pearce defect is a remand for sentencing consistent with due process. North Carolina v. Rice, 404 U.S. 244, 247—248, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971). In Rice we concluded that the Court of Appeals had erred in ruling that Pearce authorized the expunging of Rice's conviction after his trial de novo in North Carolina:
33
'It could not be clearer . . . that Pearce does not invalidate the conviction that resulted from Rice's second trial . . .. Pearce, in short, requires only resentencing; the conviction is not ipso facto set aside and a new trial required. Even if the higher sentence imposed after Rice's trial de novo was vulnerable under Pearce, Rice was entitled neither to have his conviction erased nor to avoid the collateral consequences flowing from that conviction and a proper sentence.' Ibid.
34
Since Rice had completely served his sentence, rather than reaching the merits of Rice's Pearce claim, we remanded for a determination whether any collateral consequences flowed from his service of the longer sentence imposed after retrial, or whether the case was moot.
35
Here, while respondent faced the prospect of a more severe sentence at the conclusion of his felony trial in the Superior Court of North Carolina, it was by no means self-evident that this would be the result. The maximum sentence which he could receive on the misdemeanor court was one and one-half years, but nothing in the record indicates that the Superior Court judge might not impose a lesser penalty than that, or even grant probation. Nor is there any indication in the habeas record, which contains only a fragment of the state court proceedings, that the Superior Court judge might not at the conclusion of the trial and after a verdict of guilty have before him for sentencing purposes information which would support an augmented sentence under Pearce. In fact, the habeas court found that the sentence actually imposed was more severe than that which could have been imposed under the misdemeanor charge. But the remedy for that violation should be a direction to the state court to resentence in accordance with Pearce, rather than an order completely annulling the conviction. Respondent was originally convicted of assaulting a fellow inmate with a deadly weapon, and later pleaded guilty to a charge of assaulting the inmate with a deadly weapon with intent to kill him. But in spite of both a verdict of guilty on one charge and a plea of guilty to the other, the Court's decision may well, as a practical matter, assure that no penalty whatever will be imposed on him.
36
Mr. Justice POWELL joins in Part II of this opinion.
1
See generally State v. Spencer, 276 N.C. 535, 173 S.E.2d 765; State v. Sparrow, 276 N.C. 499, 173 S.E.2d 897.
2
The respondent's guilty plea was apparently premised on the expectation that any sentence he received in the Superior Court would be served concurrently with the sentence he was then serving, as contrasted with the consecutive sentence imposed in the District Court. That expectation was fulfilled, but it turned out that the guilty plea resulted in increasing the respondent's potential term of incarceration. Under applicable North Carolina law, the five- to seven-year assault sentence did not commence until the date of the guilty plea, October 29, 1969. By that time, Perry had already served some 17 months of the sentence he was serving at the time of the five- to seven-year Thus, the effect of the five- to seven-year concurrent sentence on the assault charge was to increase his potential period of confinement by these 17 months, as opposed to the six-month increase envisaged by the District Court's consecutive sentence.
3
The Court of Appeals further instructed the District Court to await the ruling of this Court in Rice v. North Carolina, 434 F.2d 297 (CA4), cert. granted, 401 U.S. 1008, 91 S.Ct. 1256, 28 L.Ed.2d 544. Rice involved a challenge to the constitutionality of an enhanced penalty received after a criminal defendant had sought a trial de novo under North Carolina's two-tiered misdemeanor adjudication system. This Court did not reach the merits of this issue in Rice, instead vacating and remanding to the Court of Appeals for consideration as to whether the case had become moot. 404 U.S. 244, 92 S.Ct. 402, 30 L.Ed.2d 413.
Subsequently, in Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584, we dealt with the merits of this issue, and held that the imposition of an increased sentence on trial de novo did not violate either the Due Process or the Double Jeopardy Clause. The District Court in the present case had the benefit of the Colten decision before issuing its opinion granting habeas corpus relief.
4
This Court has never held that the States are constitutionally required to establish avenues of appellate review of criminal convictions. Nonetheless, 'it is now fundamental that, once established, these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts.' Rinaldi v. Yeager, 384 U.S. 305, 310, 86 S.Ct. 1497, 1500, 16 L.Ed.2d 577. See also Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892; Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899; North Carolina v. Pearce, 395 U.S. 711, 724 725, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656; Chaffin v. Stynchcombe, 412 U.S. 17, 24 n. 11, 93 S.Ct. 1977, 1981, 36 L.Ed.2d 714.
5
For a more exhaustive list of States employing similar two-tiered procedures, see Colten, supra, 407 U.S. at 112 n. 4, 92 S.Ct. at 1958.
6
Moreover, even putting to one side the potentiality of increased incarceration, conviction of a 'felony' often entails more serious collateral consequences than those incurred through a misdemeanor conviction. See generally Special Project, The Collateral Consequences of a Criminal Conviction, 23 Vand.L.Rev. 929, 955—960; Note, Civil Disabilities of Felons, 53 Va.L.Rev. 403, 406—408. Cf. O'Brien v. Skinner, 414 U.S. 524, 94 S.Ct. 740, 38 L.Ed.2d 702 (involving New York law under which convicted misdemeanants retain the right to vote).
7
This would clearly be a different case if the State had shown that it was impossible to proceed on the more serious charge at the outset, as in Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500. In that case the defendant was originally tried and convicted for assault and battery. Subsequent to the original trial, the assault victim died, and the defendant was then tried and convicted for homicide. Obviously, it would not have been possible for the authorities in Diaz to have originally proceeded against the defendant on the more serious charge, since the crime of homicide was not complete until after the victim's death.
8
Contrary to the dissenting opinion, our decision today does not 'assure that no penalty whatever will be imposed' on respondent. Post, at 39. While the Due Process Clause of the Fourteenth Amendment bars trial of Perry on the felony assault charges in the Superior Court, North Carolina is wholly free to conduct a trial de novo in the Superior Court on the original misdemeanor assault charge. Indeed, this is precisely the course that Perry has invited, by filing an appeal from the original judgment of the District Court.
The dissenting opinion also seems to misconceive the nature of the due process right at stake here. If this were a case involving simply an increased sentence violative of the Pearce rule, a remand for resentencing would be in order. Our holding today, however, is not that Perry was denied due process by the length of the sentence imposed by the Superior Court, but rather by the very institution of the felony indictment against him. While we reach this conclusion in partial reliance on the analogy of Pearce and its progeny, the due process violation here is not the same as was involved in those cases, and cannot be remedied solely through a resentencing procedure in the Superior Court. Cf. n. 6, supra.
| 01
|
416 U.S. 861
94 S.Ct. 2114
40 L.Ed.2d 607
AIR POLLUTION VARIANCE BOARD OF the State of COLORADO, Petitioner,v.WESTERN ALFALFA CORPORATION.
No. 73—690.
Argued April 25, 1974.
Decided May 20, 1974.
Syllabus
A state health inspector entered respondent's outdoor premises in the daylight without its knowledge or consent and without a warrant, to make an opacity test of smoke being emitted from respondent's chimneys. In a hearing requested by respondent, the Colorado Air Pollution Variance Board on the basis of such test found the emissions violated the state act, denied respondent a variance, and entered a cease-and-desist order. The County District Court set aside the Board's decision, and the Colorado Court of Appeals affirmed, holding that the test constituted an unreasonable search within the meaning of the Fourth Amendment. Held: The Fourth Amendment, made applicable to the States by the Fourteenth, does not extend to sights seen in 'the open fields,' Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898, such as here where the inspector did not enter the respondent's plant or offices but had sighted what anyone who was near the plant could see in the sky. Pp. 864—865.
510 P.2d 907, reversed and remanded.
William E. Tucker, Denver, Colo., for petitioner.
Edmund W. Kitch, Chicago, Ill., for the United States, as amicus curiae, by special leave of Court.
Donald D. Cawelti, Denver, Colo., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
An inspector of a division of the Colorado Department of Health entered the outdoor premises of respondent without its knowledge or consent. It was daylight
2
[Amicus Curiae Information from pages 862-863 intentionally omitted] and the inspector entered the yard to make a Ringelmann test1 of plumes of smoke being emitted from respondent's chimneys. Since that time Colorado has adopted a requirement for a search warrant for violations of air quality standards.2 At the time of the instant inspection the state law required no warrant and none was sought. Indeed, the inspector entered no part of respondent's plant to make the inspection.
3
A federal Act under the administration of the Environmental Protection Agency (EPA) sets certain air quality standards, 81 Stat. 485, 42 U.S.C. § 1857 et seq. The States have the primary responsibility to assure the maintenance of air quality standards, 42 U.S.C. § 1857c—2(a). Yet if the EPA has approved or promulgated 'an applicable implementation' plan, a State may not adopt or enforce a 'less stringent' one, 42 U.S.C. § 1857d—1. There is no conflict between a federal standard and state action, the sole question presented being whether Colorado has violated federal constitutional procedures in making the inspection in the manner described.
4
Respondent requested a hearing before Colorado's Air Pollution Variance Board. The Board held a hearing and found that respondent's emissions were in violation of the state Act.3 While the test challenged here was made on June 4, 1969, the Board after noting that Colorado's Health Department had been in conference with respondent 'in regard to its air pollution violations since September, 1967,' after approving the readings made by the field inspector on the day in question, and after holding that tests submitted in rebuttal by respondent were not acceptable, denied a variance and entered a cease-and-desist order. Respondent sought review in the District Court for Weld County which set aside the Board's decision. The Colorado Court of Appeals affirmed, 510 P.2d 907; and the Supreme Court denied certiorari.
5
The petition for certiorari which we granted, 414 U.S. 1156, 94 S.Ct. 913, 39 L.Ed.2d 108, raised three questions, presenting in differing postures questions under the Fourth Amendment, made applicable to the States by the Fourteenth. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.
6
The main thrust of the opinion of the Court of Appeals is directed at the Fourth Amendment problem. It held that under Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930, and See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943, the act of conducting the tests on the premises of respondent without either a warrant or the consent of anyone from respondent constituted an unreasonable search within the meaning of the Fourth Amendment. We adhere to Camara and See but we think they are not applicable here. The field inspector did not enter the plant or offices. He was not inspecting stacks.4 boilers, scrubbers, flues, grates, or furnaces; nor was his inspection related to respondent's files or papers. He had sighted what anyone in the city who was near the plant could see in the sky—plumes of smoke. The Court in Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898, speaking through Mr. Justice Holmes, refused to extend the Fourth Amendment to sights seen in 'the open fields.' The field inspector was on respondent's property but we are not advised that he was on premises from which the public was excluded. Under the Noise Control Act of 1972, 86 Stat. 1234, 42 U.S.C. § 4901 et seq. (1970 ed., Supp. II), an inspector may enter a railroad right-of-way to determine whether noise standards are being violated. The invasion of privacy in either that case or the present one, if it can be said to exist, is abstract and theoretical. The EPA regulation for conducting an opacity test requires the inspecotr to stand at a distance equivalent to approximately two stack heights away but not more than a quarter of a mile from the base of the stack with the sun to his back from a vantage point perpendicular to the plume; and he must take at least 25 readings, recording the data at 15- to 30-second intervals. Depending upon the layout of the plant, the inspector may operate within or without the premises but in either case he is well within the 'open fields' exception to the Fourth Amendment approved in Hester.
7
The Court of Appeals went on to say that since respondent was not aware that the inspector had been on the premises until the cease-and-desist notice, the hearing it received 'lacked the fundamental elements of due process of law, since the secret nature of the investigation foreclosed Western from putting on any rebuttal evidence.'5
8
Whether the Court referred to Colorado 'due process' or Fourteenth Amendment 'due process' is not clear.6 If it is the former, the question is a matter of state law beyond our purview. Since we are unsure of the grounds of that ruling we intimate no opinion on that issue. But on our remand we leave open that7 and any other questions that may be lurking in the case.
9
Reversed and remanded.
1
This test is prescribed by Colo.Rev.Stat.Ann. § 66—29—5 (Supp.1967). It requires a trained inspector to stand in a position where he has an unobstructed view of the smoke plume, observe the smoke, and rate it according to the opacity scale of the Ringelmann chart. The person using the chart matches the color and density of the smoke plume with the numbered example on the chart. The Ringelmann test is generally sanctioned for use in measuring air pollution. See cases collected in Portland v. Fry Roofing Co., 3 Or.App. 352, 355—358, 472 P.2d 826, 827—829.
2
Colo.Rev.Stat.Ann. § 66—29—8(2)(d) (Supp.1969).
3
The Air Pollution Variance Board, after the Division of Administration, Colorado Department of Health, had issued a cease-and-desist order, received a request from respondent for a hearing which was granted and held September 11, 1969.
4
EPA studies indicate that tests of stacks are expensive and may require 300 man-hours of skilled work. 39 Fed.Reg. 9309. And see Schulze, The Economics of Environmental Quality Measurement, 23 J. Air Poll. Control Assn. 671 (1973); 40 CFR § 60.85, Method 9.
5
510 P.2d, at 909.
6
In the District Court's opinion it is said that one challenge to the hearing before the Variance Board was 'whether or not due process of law and equal protection of the law contrary to the 14th Amendment of the Constitution of the United States and Section 25, Article 2 of the Constitution of the State of Colorado was denied' by the Board. App. 136.
7
See California v. Krivda, 409 U.S. 33, 93 S.Ct. 32, 34 L.Ed.2d 45; Department of Mental Hygiene v. Kirchner, 380 U.S. 194, 85 S.Ct. 871, 13 L.Ed.2d 753; Minnesota v. National Tea Co., 309 U.S. 551, 60 S.Ct. 676, 84 L.Ed. 920.
| 01
|
417 U.S. 40
94 S.Ct. 2116
40 L.Ed.2d 642
Prince Eric FULLER, Petitioner,v.State of OREGON.
No. 73—5280.
Argued March 26, 1974.
Decided May 20, 1974.
Syllabus
Petitioner, who pleaded guilty to a crime and was given a probationary sentence, conditioned upon his complying with a jail work-release program permitting him to attend college and also upon his reimbursing the county for the fees and expenses of an attorney and investigator whose services had been provided him because of his indigency, attacks the constitutionality of Oregon's recoupment statute, which was upheld on appeal. That law requires convicted defendants who are indigent at the time of the criminal proceedings against them but who subsequently acquire the financial means to do so, to repay the costs of their legal defense. Defendants with no likelihood of having the means to repay are not even conditionally obligated to do so, and those thus obligated are not subjected to collection procedures until their indigency has ended and no manifest hardship will result. Held:
1. The Oregon recoupment scheme does not violate the Equal Protection Clause of the Fourteenth Amendment. Pp. 46—50.
(a) The statute retains all the exemptions accorded to other judgment debtors, in addition to the opportunity to show that recovery of legal defense costs will impose 'manifest hardship.' James v. Strange, 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600, distinguished. Pp. 46—48.
(b) The statutory distinction between those who are convicted, on the one hand, and those who are not or whose convictions are reversed, on the other, is not an invidious classification, since the legislative decision not to impose a repayment obligation on a defendant forced to submit to criminal prosecution that does not end in conviction is objectively rational. Pp. 48—50.
2. The Oregon law does not infringe upon a defendant's right to counsel since the knowledge that he may ultimately have to repay the costs of legal services does not affect his ability to obtain such services. The challenged statute is thus not similar to a provision that 'chill(s) the assertion of constitutional rights by penalizing those who choose to exercise them,' United States v. Jackson, 390 U.S. 570, 581, 88 S.Ct. 1209, 1216, 20 L.Ed.2d 138. Pp. 51—54.
12 Or.App. 152, 504 P.2d 1393, affirmed.
J. Marvin Kuhn, Salem, Or., for petitioner.
W. Michael Gillette, Salem, Or., for respondents.
Mr. Justice STEWART delivered the opinion of the Court.
1
In this case we are called upon to determine whether Oregon may constitutionally require a person convicted of a criminal offense to repay to the State the costs of providing him with effective representation of counsel, when he is indigent at the time of the criminal proceedings but subsequently acquires the means to bear the costs of his legal defense.
2
The petitioner Fuller pleaded guilty, on July 20, 1972, to an information charging him with sodomy in the third degree.1 At the hearing on the plea and in other court proceedings he was represented by a local member of the bar appointed by the court upon the petitioner's representation that he was indigent and unable to hire a lawyer. Fuller's counsel in turn hired an investigator to aid in gathering facts for his defense, and the investigator's fees were also assumed by the State. Fuller was subsequently sentenced to five years of probation, conditioned upon his satisfactorily complying with the requirements of a work-release program at the county jail that would permit him to attend college, and also upon his reimbursement to the county of the fees and expenses of the attorney and investigator whose services had been provided him because of his indigent status. On appeal to the Oregon Court of Appeals, his principal contention was that the State could not constitutionally condition his probation on the repayment of these expenses.2 With one judge dissenting, the imposition of his sentence was affirmed, 12 Or.App. 152, 504 P.2d 1393, and the Supreme Court of Oregon subsequently denied Fuller's petition for review. Because of the importance of the question presented and the conflict of opinion on the constitutional issue involved,3 we granted certiorari, 414 U.S. 1111, 94 S.Ct. 840, 38 L.Ed.2d 737.
3
* We begin with consideration of the plan and operation of the challenged statute. By force of interpretation of the State's Constitution and comprehensive legislation, Oregon mandates that every defendant in a criminal case must be assigned a lawyer at state expense if '(i)t appears to the court that the defendant is without means and is unable to obtain counsel.' Or.Rev.Stat. § 135.050(1)(d) (1973).4 As part of a recoupment statute passed in 1971, Oregon requires that in some cases all or part of the 'expenses specially incurred by the state in prosecuting the defendant,' § 161.665(2), be repaid to the State, and that when a convicted person is placed on probation repayment of such expenses may be made a condition of probation.5 These expenses include the costs of the convicted person's legal defense.6
4
As the Oregon appellate court noted in its opinion in this case, however, the requirement of repayment 'is never mandatory.' 12 Or.App., at 156, 504 P.2d, at 1395. Rather, several conditions must be satisfied before a person may be required to repay the costs of his legal defense. First, a requirement of repayment may be imposed only upon a convicted defendant; those who are acquitted, whose trials end in mistrial or dismissal, and those whose convictions are overturned upon appeal face no possibility of being required to pay. Ore.Rev.Stat. § 161.665(1). Second, a court may not order a convicted person to pay these expenses unless he 'is or will be able to pay them.' § 161.665(3). The sentencing court must 'take account of the financial resources of the defendant and the nature of the burden that payment of costs will impose.' Ibid. As the Oregon court put the matter in this case, no requirement to repay may be imposed if it appears at the time of sentencing that 'there is no likelihood that a defendant's indigency will end . . ..' 12 Or.App., at 159, 504 P.2d, at 1397. Third, a convicted person under an obligation to repay 'may at any time petition the court which sentenced him for remission of the payment of costs or of any unpaid portion thereof.' Ore.Rev.Stat. § 161.665(4). The court is empowered to remit if payment 'will impose manifest hardship on the defendant or his immediate family . . ..' Ibid. Finally, no convicted person may be held in contempt for failure to repay if he shows that 'his default was not attributable to an intentional refusal to obey the order of the court or to a failure on his part to make a good faith effort to make the payment . . ..' § 161.685(2).
5
Thus, the recoupment statute is quite clearly directed only at those convicted defendants who are indigent at the time of the criminal proceedings against them but who subsequently gain the ability to pay the expenses of legal representation. Defendants with no likelihood of having the means to repay are not put under even a conditional obligation to do so, and those upon whom a conditional obligation is imposed are not subjected to collection procedures until their indigency has ended and no 'manifest hardship' will result. The contrast with appointment-of-counsel procedures in States without recoupment requirements7 is thus relatively small: a lawyer is provided at the expense of the State to all defendants who are unable, even momentarily, to hire one, and the obligation to repay the State accrues only to those who later acquire the means to do so without hardship.
II
6
The petitioner's first contention is that Oregon's recoupment system violates the Equal Protection Clause of the Fourteenth Amendment because of various classifications explicitly or implicitly drawn by the legislative provisions. He calls attention to our decision in James v. Strange, 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600, which had invalid under the Equal Protection Clause a law enacted by Kansas that was somewhat similar to the legislation now before us. But the offending aspect of the Kansas statute was its provision that in an action to compel repayment of counsel fees '(n)one of the exemptions provided for in the code of civil procedure (for collection of other judgment debts) shall apply to any such judgment . . .,' Kan.Stat.Ann. § 22—4513(a) (Supp.1971), a provision which 'strip(ped) from indigent defendants the array of protective exemptions Kansas has erected for other civil judgment debtors . . ..' 407 U.S., at 135, 92 S.Ct., at 2031.8 The Court found that the elimination of the exemptions normally available to judgment debtors 'embodie(d) elements of punitiveness and discrimination which violate the rights of citizens to equal treatment under the law.' Id., at 142, 92 S.Ct., at 2035.
7
The Oregon statute under consideration here suffers from no such infirmity. As the Oregon Court of Appeals observed, '(n)o denial of the exemptions from execution afforded to other judgment debtors is included in the Oregon statutes.' 12 Or.App., at 159, 504 P.2d, at 1397. Indeed, a separate provision directs that '(a) judgment that the defendant pay money, either as a fine or as costs and disbursements of the action, or both, shall be docketed as a judgment in a civil action and with like effect . . ..' Ore.Rev.Stat. § 137.180. The convicted person from whom recoupment is sought thus retains all the exemptions accorded other judgment debtors, in addition to the opportunity to show at any time that recovery of the costs of his legal defense will impose 'manifest hardship,' § 161.665(4). The legislation before us, therefore, is wholly free of the kind of discrimination that was held in James v. Strange to violate the Equal Protection Clause.9
8
The petitioner contends further, however, that the Oregon statute denies equal protection of the laws in another way—by discriminating between defendants who are convicted, on the one hand, and those who are not convicted or whose convictions are reversed, on the other. Our review of this distinction, of course, is a limited one. As the Court stated in James v. Strange: 'We do not inquire whether this statute is wise or desirable . . .. Misguided laws may nonetheless by constitutional.' 407 U.S., at 133, 92 S.Ct., at 2031. Our task is merely to determine whether there is 'some rationality in the nature of the class singled out.' Rinaldi v. Yeager, 384 U.S. 305, 308, 309, 86 S.Ct. 1497, 1499, 16 L.Ed.2d 577. See also McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282; McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393. In Rinaldi the Court found impermissible New Jersey's decision to single out prisoners confined to state institutions for imposition of an obligation to repay to the State costs incurred in providing free transcripts of trial court proceedings required by this Court's decision in Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891. The legislative decision to tax those confined to prison but not those also convicted but given a suspended sentence, probation, or a fine without imprisonment was found to be invidiously discriminatory and thus violative of the requirements of the Equal Protection Clause. In the case before us, however, the sole distinction is between those who are ultimately convicted and those who are not.10
9
We conclude that this classification is wholly noninvidious. A defendant whose trial ends without conviction or whose conviction is overturned on appeal has been seriously imposed upon by society without any conclusive demonstration that he is criminally culpable. His life has been interrupted and subjected to great stress, and he may have incurred financial hardship through loss of job or potential working hours. His reputation may have been greatly damaged. The imposition of such dislocations and hardships without an ultimate conviction is, of course, unavoidable in a legal system that requires proof of guilt beyond a reasonable doubt and guarantees important procedural protections to every defendant in a criminal trial. But Oregon could surely decide with objective rationality that when a defendant has been forced to submit to a criminal prosecution that does not end in conviction, he will be freed of any potential liability to reimburse the State for the costs of his defense. This legislative decision reflects no more than an effort to achieve elemental fairness and is a far cry from the kind of invidious discrimination that the Equal Protection Clause condemns.11
III
10
The petitioner's second basic contention is that Oregon's recoupment statute infringes upon his constitutional right to have counsel provided by the State when he is unable because of indigency to hire a lawyer. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530. The argument is not that the legal representation actually provided in this case was ineffective or insufficient. Nor does the petitioner claim that the fees and expenses he may have to repay constitute unreasonable compensation for the defense provided him. Rather, he asserts that a defendant's knowledge that he may remain under an obligation to repay the expenses incurred in providing him legal representation might impel him to decline the services of an appointed attorney and thus 'chill' his constitutional right to counsel.
11
This view was articulated by the Supreme Court of California, is a case invalidating California's recoupment legislation, in the following terms:
12
'(W)e believe that as knowledge of (the recoupment) practice has grown and continues to grow many indigent defendants will come to realize that the judge's offer to supply counsel is not the gratuitous offer of assistance that it might appear to be; that, in the event the case results in a grant of probation, one of the conditions might well be the reimbursement of the county for the expense involved. This knowledge is quite likely to deter or discourage many defendants from accepting the offer of counsel despite the gravity of the need for such representation as emphasized by the (Supreme) (C) ourt in Gideon . . ..' In re Allen, 71 Cal.2d 388, 391, 78 Cal.Rptr. 207, 208, 455 P.2d 143, 144.
13
We have concluded that this reasoning is wide of the constitutional mark.
14
The focal point of this Court's decisions securing the right to state-appointed counsel for indigents was the 'noble ideal' that every criminal defendant be assured not only 'procedural and substantive safeguards designed to assure fair trials before importial tribunals in which every defendant stands equal before the law,' but also the expert advice necessary to recognize and take advantage of those safeguards. Gideon v. Wainwright, supra, 372 U.S., at 344, 83 S.Ct., at 796. In the now familiar words of the Court's seminal opinion in Powell v. Alabama, 287 U.S. 45, 68 69, 53 S.Ct. 55, 64, 77 L.Ed. 158, quoted in Gideon, 372 U.S., at 344—345, 83 S.Ct., at 796—797:
15
'The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.'
16
Oregon's system for providing counsel quite clearly does not deprive any defendant of the legal assistance necessary to meet these needs. As the State Court of Appeals observed in this case, an indigent is entitled to free counsel 'when he needs it'—that is, during every stage of the criminal proceedings against him. 12 Or.App., at 158—159, 504 P.2d, at 1396. The fact that an indigent who accepts state-appointed legal representation knows that he might someday be required to repay the costs of these services in no way affects his eligibility to obtain counsel. The Oregon statute is carefully designed to insure that only those who actually become capable of repaying the State will ever be obliged to do so.12 Those who remain indigent or for whom repayment would work 'manifest hardship' are forever exempt from any obligation to repay.
17
We live in a society where the distribution of legal assistance, like the distribution of all goods and services, is generally regulated by the dynamics of private enterprise. A defendant in a criminal case who is just above the line separating the indigent from the nonindigent must borrow money, sell off his meager assets, or call upon his family or friends in order to hire a lawyer. We cannot say that the Constitution requires that those only slightly poorer must remain forever immune from any obligation to shoulder the expenses of their legal defense, even when they are able to pay without hardship.
18
This case is fundamentally different from our decisions relied on by the petitioner which have invalidated state and federal laws that placed a penalty on the exercise of a constitutional right. See Uniformed Sanitation Men Ass'n v. Commissioner of Sanitation, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089; Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082; United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138. Unlike the statutes found invalid in those cases, where the provisions 'had no other purpose or effect than to chill the assertion of constitutional rights by penalizing those who choose to exercise them,' id., at 581, 88 S.Ct., at 1216, Oregon's recoupment statute merely provides that a convicted person who later becomes able to pay for his counsel may be required to do so. Oregon's legislation is tailored to impose an obligation only upon those with a foreseeable ability to meet it, and to enforce that obligation only against those who actually become able to meet it without hardship.
19
The judgment of the Court of Appeals of Oregon is affirmed.
20
It is so ordered.
21
Affirmed.
22
Mr. Justice DOUGLAS, concurring in the judgment.
23
The petitioner in this case, charged with a felony, received court-appointed counsel, which is available in Oregon to a defendant who executes a statement that he is unable to obtain counsel, when it appears to the court that the defendant is without means. Ore.Rev.Stat. § 135.050(1)(c), (d) (1973). Petitioner was convicted, and sentenced to five years' probation. One of the conditions of probation was that petitioner reimburse the county for the cost of his appointed attorney's fees and for the expenses of a defense investigator.1 These costs were assessed pursuant to the Oregon recoupment statute, §§ 161.665 161.685, which authorizes the sentencing court to require a convicted defendant to pay certain costs2 and to condition probation on such payment.
24
Although a defendant might have been indigent at the time of trial, the Oregon statutory scheme recognizes that at some point after trial a defendant may escape from indigency. As noted, the recoupment statute thus allows the court to require a convicted defendant to pay costs. § 161.665(1). Payment of the costs may be made a condition of probation. § 161.675(2). But it forbids the court to impose such a requirement at the time of sentencing unless the defendant at that time 'is or will be able to' pay those costs and requires the court to consider the 'nature of the burden that payment of costs will impose' on the defendant. § 161.665(3). Under the statute, a court which has sentenced a defendant to pay costs may remit the payment of the amount due, or modify the method of payment, if it appears that the payment will impose manifest hardship on the defendant or his immediate family. § 161.665(4).
25
The Court of Appeals of Oregon construed the statutory scheme in this case to limit sharply the discretion of the trial court to require the repayment of costs. 12 Or.App. 152, 504 P.2d 1393. As the court interpreted the statute, a defendant can be required to repay appointed counsel's fee 'only if and when he is no longer indigent.' Id., at 159, 504 P.2d, at 1397 (emphasis added). While payment of costs may be made a condition of probation, probation can be revoked only if the court specifically finds that '(1) the defendant has the present financial ability to repay the costs involved (either all or by installments) without hardship to himself or his family . . . and (2) the defendant's failure to repay . . . is an intentional, contumacious default . . ..' Ibid. Revocation is improper if both of these elements are not established.
26
The narrow construction of the Oregon recoupment statute in this case disposes of petitioner's claim that the statute 'chills' the exercise of the right to counsel. Repayment cannot be required until a defendant is able to pay the costs, and probation cannot be revoked for nonpayment unless there is a specific finding that payment would not work hardship on a defendant or his family. Under these circumstances, the 'chill' on the exercise of the right to counsel is no greater than that imposed on a non-indigent defendant without great sums of money. Even though such a defendant can afford counsel, he might well be more ready to accept free appointed counsel than to retain counsel himself. Yet a State is not therefore required by the Federal Constitution to provide appointed counsel for nonindigent defendants.3
27
Nor is it a denial of equal protection to assess costs only against those defendants who are convicted. The acquitted defendant has prevailed at trial in defending against the charge brought by the State. It is rational that the State not recover costs from such a defendant while recovering costs from a defendant who has been found guilty beyond a reasonable doubt of the crime that necessitated the trial. Similarly, too, it is rational not to assess defendants against whom charges have been dismissed, since the State has not proved its charges against them.4
28
My Brother MARSHALL argues that the Oregon recoupment statute denies indigent defendants equal protection of the laws in that it contemplates revocation of probation and subsequent imprisonment for nonpayment of counsel fees. He notes that Art. 1, § 19, of the Oregon Constitution provides that '(t)here shall be no imprisonment for debt, except in case of fraud or absconding debtors,' and argues that a defendant who failed to pay a bill to his retained counsel could not be imprisoned.
29
I do not believe that this claim was properly preserved below or is properly before this Court. Petitioner did argue that the possibility of imprisonment for debts owed the State under the recoupment statute denied him equal protection, but there is no indication that the Oregon Court of Appeals was alerted to the problems posed by Art. 1, § 19. Petitioner did not even mention the section in his brief before this Court.5 Yet there is, as my Brother MARSHALL notes, an apparent inconsistency between Art. 1, § 19, and the recoupment statute. It may be, therefore, that the Oregon courts would strike down the statutes as being inconsistent with the constitutional provision if they faced the issue. But on the record of this case, they have not made that determination of state law. Nor can we assume that the Oregon courts have in fact implicitly rejected the applicability of Art. 1, § 19, in upholding the recoupment statute in this case; there is no evidence that an Oregon court must, or even may, sua sponte, consider arguments not argued or briefed to it.
30
While this Court may at times adopt theories different from those urged by counsel or urged before the state courts when resolving a particular question, see Dewey v. Des Moines, 173 U.S. 193, 198, 19 S.Ct. 379, 380, 43 L.Ed. 665; cf. Stanley v. Illinois, 405 U.S. 645, 658 n. 10, 92 S.Ct. 1208, 1216, 31 L.Ed.2d 551, it will not pass on questions substantively different from those presented to the state courts, even when the federal claim is nominally based on the same federal constitutional clause relied on before the state courts, see Wilson v. Cook, 327 U.S. 474, 483—484, 66 S.Ct. 663, 667—668, 90 L.Ed. 793. More cruically, the federal Equal Protection Clause could be violated in this case only if a particular construction of state law were to be adopted by the state courts. That construction was not adopted on the record before us, and we cannot simply assume that the state court would so rule and strike down the state statute on the basis of that assumption.
31
For these reasons, I do not reach the merits of the equal protection question presented by the dissent. And since that question is not properly before us, I believe that the Court errs in rendering an advisory opinion on the merits, an error compounded by the absence of any record below amplifying those merits. The Court not only renders an advisory opinion; it renders it in a vacuum. The proper construction of state law, and the proper resolution of the dependent equal protection claim, would properly be raised by another litigant or by petitioner by way of collateral attack.
32
In view of the manner in which the application of the recoupment statute has been stringently narrowed by the Court of Appeals of Oregon and because the claim urged by the dissent is not properly before the Court, I concur in the judgment of the Court.
33
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
34
In my view, the Oregon recoupment statute at issue in this case discriminates against indigent defendants in violation of the Equal Protection Clause and the principles established by this Court in James v. Strange, 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600 (1972). In that case we held unconstitutional under the Equal Protection Clause a Kansas recoupment statute because it failed to provide equal treatment between indigent defendants and other civil judgment debtors. We relied on the fact that indigent defendants were not entitled to the protective exemptions Kansas had erected for other civil judgment debtors.
35
The Oregon recoupment statute at issue here similarly provides unequal treatment between indigent defendants and other civil judgment debtors. The majority obfuscates the issue in this case by focusing solely on the question whether the Oregon statute affords an indigent defendant the same protective exemptions provided other civil debtors. True, as construed by the Oregon Court of Appeals, the statute does not discriminate in this regard. But the treatment it affords indigent defendants remains unequal in another, even more fundamental, respect. The important fact which the majority ignores is that under Oregon law, the repayment of the indigent defendant's debt to the State can be made a condition of his probation, as it was in this case. Petitioner's failure to pay his debt can result in his being sent to prison. In this respect the indigent defendant in Oregon, like the indigent defendant in James v. Strange, is treated quite differently from other civil judgment debtors.
36
Petitioner's 'predicament under this statute comes into sharper focus when compared with that of one who has hired counsel in his defense.' 407 U.S., at 136, 92 S.Ct. at 2032. Article 1, § 19, of the Oregon Constitution provides that '(t)here shall be no imprisonment for debt, except in case of fraud or absconding debtors.' Hence, the nonindigent defendant in a criminal case in Oregon who does not pay his privately retained counsel, even after he obtains the means to do so, cannot be imprisoned for such failure. The lawyer in that instance must enforce his judgment through the normal routes available to a creditor—by attachment, lien, garnishment, or the like. Petitioner, on the other hand, faces five years behind bars if he fails to pay his 'debt' arising out of the appointment of counsel.
37
Article 1, § 19, of the Oregon Constitution is representative of a fundamental state policy consistent with the modern rejection of the practice of imprisonment for debt as unnecessarily cruel and essentially counterproductive. Since Oregon chooses not to provide imprisonment for debt for well-heeled defendants who do not pay their retained counsel, I do not believe it can, consistent with the Equal Protection Clause, imprison an indigent defendant for his failure to pay the costs of his appointed counsel.1 For as we held in James v. Strange, a State may not 'impose unduly harsh or discriminatory terms merely because the obligation is to the public treasury rather than to a private creditor.' 407 U.S., at 138, 92 S.Ct., at 2033.
38
I would therefore hold the Oregon recoupment the Equal Protection Clause insofar as the Equal Protection Clause insofar say it permits payment of the indigent defendant's debt to be made a condition of his probation.2 I respectfully dissent.
1
Other charges contained in the information against Fuller were dismissed when his guilty plea was accepted.
2
In addition, Fuller argued that the section of the Oregon recoupment statute authorizing an obligation to repay 'expenses specially incurred by the state in prosecuting the defendant,' Ore.Rev.Stat. § 161.665(2), see n. 5, infra, was not intended by the state legislature to include counsel fees. This issue of state law was resolved against the petitioner in the state court, and properly is not raised here, Murdock v. City of Memphis, 20 Wall. 590, 22 L.Ed. 429.
3
Courts of some other States, in reviewing legislation similar to that in question here, have expressed views on the constitutionality of the recoupment of defense costs inconsistent with the decision of the Oregon Court of Appeals in this case. In re Allen, 71 Cal.2d 388, 78 Cal.Rptr. 207, 455 P.2d 143; Opinion of the Justices, 109 N.H. 508, 256 A.2d 500; State ex rel. Brundage v. Eide, 83 Wash.2d 676, 521 P.2d 706. Cf. Strange v. James, 323 F.Supp. 1230 (D.C.Kan.), aff'd on other grounds, 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600. See generally American Bar Association Project on Standards for Criminal Justice, Providing Defense Services § 6.4, pp. 58—59 (Approved Draft 1968); Comment, Reimbursement of Defense Costs as a Condition of Probation for Indigents, 67 Mich.L.Rev. 1404 (1969); Comment, Charging Costs of Prosecution to the Defendant, 59 Geo.L.J. 991 (1971).
4
Ore.Rev.Stat. § 135.050(3)(a) (1973) directs that counsel be appointed for an indigent defendant when he is '(c)harged with a crime.'
5
Ore.Rev.Stat. § 161.665 provides:
'(1) The court may require a convicted defendant to pay costs.
'(2) Costs shall be limited to expenses specially incurred by the state in prosecuting the defendant. They cannot include expenses inherent in providing a constitutionally guaranteed jury trial or expenditures in connection with the maintenance and operation of government agencies that must be made by the public irrespective of specific violations of law.
'(3) The court shall not sentence a defendant to pay costs unless the defendant is or will be able to pay them. In determining the amount and method of payment of costs, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of costs will impose.
'(4) A defendant who has been sentenced to pay costs and who is not in contumacious default in the payment thereof may at any time petition the court which sentenced him for remission of the payment of costs or of any unpaid portion thereof. If it appears to the satisfaction of the court that payment of the amount due will
impose manifest hardship on the defendant or his immediate family, the court may remit all or part of the amount due in costs, or modify the method of payment under ORS 161.675.'
Ore.Rev.Stat. § 161.675 provides:
'(1) When a defendant is sentenced to pay a fine or costs, the court may grant permission for payment to be made within a specified period of time or in specified instalments. If no such permission is included in the sentence the fine shall be payable forthwith.
'(2) When a defendant sentenced to pay a fine or costs is also placed on probation or imposition or execution of sentence is suspended, the court may make payment of the fine or costs a condition of probation or suspension of sentence.'
Ore.Rev.Stat. § 161.685 provides:
'(1) When a defendant sentenced to pay a fine defaults in the payment thereof or of any instalment, the court on motion of the district attorney or upon its own motion may require him to show cause why his default should not be treated as contempt of court, and may issue a show cause citation or a warrant of arrest for his appearance.
'(2) Unless the defendant shows that his default was not attributable to an intentional refusal to obey the order of the court or to a failure on his part to make a good faith effort to make the payment, the court may find that his default constitutes contempt and may order him committed until the fine, or a specified part thereof, is paid.
'(3) When a fine is imposed on a corporation or unincorporated association, it is the duty of the person authorized to make disbursement from the assets of the corporation or association to pay the fine from those assets, and his failure to do so may be held to be contempt unless he makes the showing required in subsection (2) of this section.
'(4) The term of imprisonment for contempt for nonpayment of fines shall be set forth in the commitment order, and shall not exceed one day for each $25 of the fine, 30 days if the fine was imposed upon conviction of a violation or misdemeanor, or one year in any other case, whichever is the shorter period. A person committed for non-
payment of a fine shall be given credit toward payment for each day of imprisonment at the rate specified in the commitment order.
'(5) If it appears to the satisfaction of the court that the default in the payment of a fine is not contempt, the court may enter an order allowing the defendant additional time for payment, reducing the amount thereof or of each instalment or revoking the fine or the unpaid portion thereof in whole or in part.
'(6) A default in the payment of a fine or costs or any instalment thereof may be collected by any means authorized by law for the enforcement of a judgment. The levy of execution for the collection of a fine shall not discharge a defendant committed to imprisonment for contempt until the amount of the fine has actually been collected.'
6
See n. 2, supra.
7
The recoupment provisions of other States are set out in the Court's opinion in James v. Strange, 407 U.S. 128, 132—133, and n. 8, 92 S.Ct. 2027, 2030—2031. The federal reimbursement provision is found in 18 U.S.C. § 3006A(f).
8
The Kansas statute allowed only one exception from the blanket denial of exemptions usually available to judgment debtors, permitting debtors upon whom judgments for costs of legal defense were executed to maintain their homesteads intact. 407 U.S., at 135, 92 S.Ct., at 2031.
9
The dissenting opinion today argues that Fuller's conditional obligation to repay constitutes an impermissible discrimination based on wealth in violation of the Equal Protection Clause. More precisely, the argument is made that, unlike a nonindigent defendant, an indigent defendant's 'failure to pay his debt can result in his being sent to prison.' Post, at 60. This contention was not made in the petitioner's brief or oral argument before this Court, and appears not to have been raised in the Oregon courts. It is, therefore, not properly before us. See n. 11, infra. Furthermore, insofar as the dissent deals with Art. 1, § 19, of the Oregon Constitution which forbids 'imprisonment for debt,' the dissent purports to resolve questions of state law that this Court does not have power to decide. Murdock v. City of Memphis, 20 Wall. 590, 22 L.Ed. 429.
More fundamentally, the imposition of a repayment requirement upon those for whom counsel was appointed but not upon those who hired their own counsel simply does not constitute indivious discrimination against the poor. Indeed, the entire thrust of Oregon's appointment-of-counsel plan is to insure an indigent effective representation of counsel at all significant steps of the criminal process. Those who are indigent may be conditionally required to repay because only they, in contrast to nonindigents, were provided counsel by the State in the first place. Moreover, the fact that a conditional requirement to repay may be made a condition of probation does not mean that the State 'impose(s) unduly harsh or discriminatory terms merely because the obligation is to the public treasury rather than to a private creditor.' James v. Strange, 407 U.S., at 138, 92 S.Ct., at 2033. Under Oregon's recoupment statute revocation of probation is not a collection device used by the State to enforce debts to it, but is a sanction imposed for 'an intentional refusal to obey the order of the court,' Ore.Rev.Stat. § 161.685(2). Since an order to repay can be entered only when a convicted person is financially able but unwilling to reimburse the State, the constitutional invalidity found in James v. Strange simply does not exist.
10
The petitioner also claims in his brief that a requirement to repay legal defense expenses has been imposed only on convicted defendants placed on probation, and 'has not been applied to those convicted indigents who were sentenced to terms of imprisonment.' While this distinction might well be justified on the ground that those released on probation are more likely than those incarcerated to have the ability to earn money to repay, we need not reach this issue since the statute itself makes no such distinction, and the petitioner has not demonstrated on this record that the State has engaged in any pattern or practice embracing it.
11
The petitioner's brief also raises, without extended discussion, various due process claims that imposition of the conditional obligation to repay was made without sufficient notice or hearing. Since these contentions appear not to have been raised in the state courts, and were not discussed by the Oregon Court of Appeals, we need not reach them here. '(T)his Court has stated that when . . . the highest state court has failed to pass upon a federal question, it will be assumed that the omission was due to want of proper presentation in the state courts, unless the aggrieved party in this Court can affirmatively show the contrary.' Street v. New York, 394 U.S. 576, 582, 89 S.Ct. 1354, 1360, 22 L.Ed.2d 572. We note in passing, however, that the recoupment statutes, including a schedule of fees, were published in the Oregon Revised Statutes at the time of the petitioner's plea, and further that both Oregon's judgment execution statute and its parole revocation procedures provide for a hearing before execution can be levied or probation revoked.
12
The limitation of the obligation to repay to those who are found able to do so also disposes of the argument, presented by an amicus curiae, that revocation of probation for failure to pay constitutes an impermissible discrimination based on wealth. See Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130; Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586. As the Court stated in Tate v. Short: 'We emphasize that our holding today does not suggest any constitutional infirmity in imprisonment of a defendant with the means to pay a fine who refuses or neglects to do so.' 401 U.S., at 400, 91 S.Ct., at 672.
Similarly, the wording of Oregon's statute makes it clear that a determination that an indigent 'will be able' to make subsequent repayment is a condition necessary for the initial imposition of the obligation to make repayment, but is not itself a condition for granting probation, or even a factor to be considered in determining whether problem should be granted.
1
In this case, the petitioner's father apparently paid the costs, and petitioner will repay his father.
2
The costs which can be assessed are limited by statute to those 'specially incurred' by the State in prosecuting a defendant. Ore.Rev.Stat. § 161.665(2). The Oregon Court of Appeals found that most costs on the prosecution side of the case could not be charged to a defendant, including police investigations, district attorneys' salaries, and sheriffs' salaries. 12 Or.App. 152, 157, 504 P.2d 1393, 1396. Also, jury fees and the costs of summoning jurors cannot be charged to the defendant. Ibid.; see Ore.Rev.Stat. § 161.665(2). The costs which can be charged appear limited to those incurred for a defendant's benefit, such as defense counsel, defense investigators, and so on, which would be borne by a nonindigent defendant in a criminal trial. In addition, the Oregon statutory scheme places limits on the fees which an appointed counsel can receive, except in 'extraordinary circumstances,' thus limiting the eventual responsibility of a defendant under the recoupment statute. § 135.055.
3
Indeed, while a defendant who is not indigent at the time of trial must pay counsel fees even if acquitted, the Oregon recoupment statutes do not permit the assessment of costs against a defendant who is not convicted.
4
Petitioner, relying on James v. Strange, 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600, also claims that the recoupment statute is impermissible because it fails to provide the same exemptions from execution provided other Oregon debtors. The Oregon Court of Appeals in this case held that all exemptions provided other debtors also apply under the recoupment statute. 12 Or.App., at 159, 504 P.2d, at 1397. Petitioner's claim that the statute deprives him of due process was not raised below and hence is not before this Court.
5
The opinion of the Oregon Court of Appeals, including the dissent, does not mention Art. 1, § 19. Petitoner's equal protection argument here was based on claims that the recoupment statute did not provide the same statutory exemptions granted other Oregon debtors, discriminated against convicted defendants as opposed to acquitted defendants and defendants who had charges dismissed, and favored defendants who were sentenced to the penitentiary. The Art. 1, § 19, problem was brought to the attention of the Court only by the amicus curiae brief of the National Legal Aid and Defender Association.
1
The majority argues that we have recognized no constitutional infirmity in imprisoning a defendant with the means to pay a fine who refuses or neglects to do so. Ante, at 53 n. 12. This case does not involve a fine, however, but rather enforcement of a debt for legal services. The fact remains that Oregon imprisons a defendant with appointed counsel who refuses or neglects to pay his debt for legal services even though able to pay, but does not imprison a defendant with retained counsel in the same circumstances.
2
In light of my disposition of the equal protection claim, I have no occasion to consider petitioner's contention that some other defendant's knowledge that he may have to reimburse the State for providing him legal representation might impel him to decline the services of an appointed attorney and thus chill his Sixth Amendment right to counsel. In any event, in my view such a claim could more appropriately be considered by this Court in the context of an actual case involving a defendant who, unlike petitioner, had refused appointed counsel and contended that his refusal was not a knowing and voluntary waiver of his Sixth Amendment rights because it was based upon his fear of bearing the burden of a debt for appointed counsel or upon his failure to understand the limitations the State imposes on such a debt.
| 12
|
417 U.S. 116
94 S.Ct. 2157
40 L.Ed.2d 703
F. D. RICH CO., INC., and Transamerica Insurance Co., Petitioners,v.UNITED STATES For the Use of INDUSTRIAL LUMBER COMPANY, INC.
No. 72—1382.
Argued Jan. 9, 1974.
Decided May 28, 1974.
Syllabus
Petitioner F. D. Rich Co., the prime contractor on a federal housing project in California, had two separate contracts for the project with Cerpac Co., one contract being for Cerpac to select, modify, detail, and install all custom millwork and the other being for Cerpac to supply all exterior plywood. Cerpac in turn ordered the lumber called for under the plywood contract from respondent. When Rich needed plywood for another project in South Carolina, one of the shipments called for by respondent's contract with Cerpac was diverted to South Carolina. When Cerpac defaulted on its payments to respondent for the plywood, including the South Carolina shipment, respondent gave notice to Rich and its surety of a Miller Act claim and thereafter brought suit in the Federal District Court for the Eastern District of California where the California project was located. Finding that Cerpac was a 'subcontractor' within the meaning of the Miller Act, rather than merely a materialman, that hence respondent could assert a Miller Act claim against Rich, and that venue for suit on the South Carolina as well as the California shipments properly lay, under 40 U.S.C. § 270b(b), in the Eastern District of California, the District Court granted judgment for respondent for the amount due on the unpaid invoices, but denied its claim for attorneys' fees. The Court of Appeals affirmed in large part, but held that attorneys' fees should be awarded respondent. Held:
1. Based on the substantiality and importance of its relationship with the prime contractor, MacEvoy Co. v. United States for Use and Benefit of Calvin Tomkins Co., 322 U.S. 102, 64 S.Ct. 890, 88 L.Ed. 1163, Cerpac was clearly a subcontractor for Miller Act purposes, considering not just its plywood contract but also its custom millwork contract on the California project. Moreover, Cerpac and Rich and closely interrelated management and financial structures, and their relationship on the California project was the same as on many other similar projects; hence it would have been easy for Rich to secure itself from loss as a result of Cerpac's default. Pp. 121—124.
2. Venue for suit on the South Carolina shipment properly lay in the Eastern District of California, since there was clearly a sufficient nexus for satisfaction of § 270b(b)'s venue requirements. The contract between Cerpac and respondent was executed in California, all materials thereunder to be delivered to the California worksite, California remained the site for performance of the original contract despite the diversion of one shipment to South Carolina. There was no showing of prejudice resulting from the case's being heard in California and considerations of judicial economy and convenience supported venue in the court where all of respondent's claims could be adjudicated in a single proceeding. Pp. 124—126.
3. Attorneys' fees were improperly awarded respondent. Pp. 126—131.
(a) The Court of Appeals erred in construing the Miller Act to require the award by reference to the 'public policy' of the State in which suit was brought, since the Act provides a federal cause of action and there is no evidence of any congressional intent to incorporate state law to govern such an important element of Miller Act litigation as liability for attorneys' fees. Pp. 127—128.
(b) The provision of the Miller Act in 40 U.S.C. § 270b(a) that claimants should recover the 'sums justly due,' does not require the award of attorneys' fees on the asserted ground that without such fee shifting, claimants would not be fully compensated. To hold otherwise would amount to judicial obviation of the 'American Rule' that attorneys' fees are not ordinarily recoverable in federal litigation in the absence of a statute or contract providing therefor, in the context of everyday commercial litigation, where the policies which underlie the limited judicially created departures from the rule are inapplicable. Pp. 128—131.
473 F.2d 720, affirmed in part and reversed in part.
Lawrence Gochberg, Stamford, Conn., for petitioners.
Dennis S. Harlowe, Tacoma, Wash., for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
The Miller Act, 49 Stat. 793, as amended, 80 Stat. 1139, 40 U.S.C. § 270a et seq., requires a Government contractor1 to post a surety bond 'for the protection of all persons supplying labor and material in the prosecution of the work provided for' in the contract. The Act further provides that any person who has so furnished labor or material and who has not been paid in full within 90 days after the last labor was performed or material supplied may bring suit on the payment bond for the unpaid balance. 40 U.S.C. § 270b(a). This case presents several unresolved issues of importance in the administration of the Act.
2
* Between 1961 and 1968, petitioner F. D. Rich Co. was the prime contractor on numerous federal housing projects. During the years 1963—1966, much if not all of the plywood and millwork for these projects was supplied by Cerpac Co. The Cerpac organization was closely intertwined with Rich. The principals of Rich held a substantial voting interest in Cerpac stock, supplied a major share of its working capital, and were thoroughly familiar with its operations and financial condition.
3
On October 18, 1965, Rich contracted with the United States to build 337 family housing units at Beale Air Force Base, California. Rich's Miller Act surety, petitioner Transmerica Insurance Co., posted the payment bond required by the Act. Rich then awarded Cerpac two contracts on the project, one to select, modify, detail, and install all custom millwork, and one merely to supply all standard exterior plywood, each contract incorporating by reference terms of the prime contract. A similar arrangement was employed by Rich and Cerpac on other projects during this period.
4
On February 22, 1966, Cerpac placed a single order with respondent Industrial Lumber Co. for all exterior plywood required under its plywood contract for the Beale project. Industrial is a broker, purchasing wood products and materials for resale. It acknowledged the complete Cerpac order, purchased the plywood from its own suppliers and arranged for deliveries at the Beale site to begin on March 10, 1966. Each shipment was receipted as it arrived on the site by a Rich representative.
5
Shortly after Industrial's shipments began, Rich informed Cerpac that more plywood was needed for another Government project being constructed in Charleston, South Carolina, for which Cerpac had also contracted to supply Rich with all exterior plywood. Rich and Cerpac decided to divert some of the Beale lumber to Charleston. Accordingly, Industrial was advised to supply a shipment of the plywood called for under its Beale contract with Cerpac to the South Carolina site. Industrial arranged for the wood to be shipped by one of its suppliers to a railhead near Charleston. The shipment diverted to South Carolina was one of 22 called for by Industrial's Beale Contract.2 There were several subsequent shipments to the California site under that contract.
6
During April and May 1966, Cerpac fell behind in its payments to Industrial, and on July 13, 1966, having not received payment on invoices for nine separate shipments, Industrial gave notice to Rich and its surety of a Miller Act claim and thereafter brought the instant action in the Federal District Court for the Eastern District of California.3 The District Court recognized that under our decision in MacEvoy Co. v. United States for Use and Benefit of Calvin Tomkins Co., 322 U.S. 102, 64 S.Ct. 890, 88 L.Ed. 1163 (1944), Rich's liability turned on whether Cerpac was a 'subcontractor' within the meaning of the Act or merely a materialman. The District Court found that Cerpac was a subcontractor; hence Industrial, as its supplier, could assert a Miller Act claim against Rich, the prime contractor on the project. The District Court also rejected Rich's claim that venue for suit on the South Carolina shipment was improper in the Eastern District of California. Accordingly, the District Court granted judgment for Industrial, holding Cerpac4 and Rich as primary obligees and Transamerica on its bond, jointly and severally liable for the amount of all nine unpaid invoices, $31,402.97, including the amoun due on the shipment diverted to South Carolina. The District Court, however, denied Industrial's claim for attorneys' fees.
7
Both Rich and Industrial appealed. The Court of Appeals affirmed the judgment against Rich in large part.5 On Industrial's cross-appeal, the court reversed, holding that attorney's fees should have been awarded to Industrial as a successful plaintiff under the Miller Act, and remanded to the District Court for consideration of the amount of attorneys' fees to be awarded. 473 F.2d 720 (CA9 1973). We granted certiorari.6 414 U.S. 816, 94 S.Ct. 41, 38 L.Ed.2d 48 (1973). We affirm the judgment below to the extent it holds that Cerpac was a 'subcontractor' for Miller Act purposes and that there was proper venue, but reverse as to the propriety of an award of attorney's fees.
II
8
Section 270a(a)(2) of the Miller Act establishes the general requirement of a payment bond to protect those who supply labor or materials to a contractor on a federal project. Ordinarily, a supplier of labor or materials on a private construction project can secure a mechanic's lien against the improved property under state law. But a lien cannot attach to Government property, see Illinois Surety Co. v. John Davis Co., 244 U.S. 376, 380, 37 S.Ct. 614, 616, 61 L.Ed. 1206 (1917), so suppliers on Government projects are deprived of their usual security interest. The Miller Act was intended to provide an alternative remedy to protect the rights of these suppliers.
9
The rights afforded by the Act are limited, however, by the proviso of § 270b(a). In MacEvoy Co. v. United States for Use and Benefit of Calvin Tomkins Co., supra, this Court construed § 270b(a) to limit the protection of a Miller Act bond to those who had a contractual agreement with the prime contractor or with a 'subcontractor.' Those in more remote relationships, including persons supplying labor or material to a mere materialman, were found not to be protected. 322 U.S., at 109—111, 64 S.Ct., at 894 895. Industrial was a supplier of materials to Cerpac. Thus, if Cerpac were a subcontractor for purposes of the Act, Industrial, having giventhe required statutory notice, could assert a Miller Act claim against Rich, the prime contractor. But, if Cerpac were merely a materialman, Industrial could not assert its Miller Act claim since it would be merely a supplier of materials to a materialman, a relationship found too remote in MacEvoy to enjoy the protections of the Act.
10
Petitioners assert that the courts below erred in finding Cerpac a subcontractor. Cerpac's role under the plywood contract alone was that of a broker receiving standard lumber supplied by Industrial and, in turn, supplying it without modification to Rich. Petitioners argue that the court should not have looked beyond the plywood contract to determine Cerpac's status under the Act.
11
In MacEvoy, supra, the Court adopted a functional rather than a technical definition for the term subcontractor, as used in the proviso. The Court noted that a subcontractor is 'one who performs for and takes from the prime contractor a specific part of the labor or material requirements of the original contract . . ..' 322 U.S., at 109, 64 S.Ct., at 894. The Court went on to explain the reason for the exclusion from the protections of the Act of suppliers of mere materialmen as opposed to those who supply subcontractors:
12
'The relatively few subcontractors who perform part of the original contract represent in a sense the prime contractor and are well known to him. It is easy for the prime contractor to secure himself against loss by requiring the subcontractors to give security by bond, or otherwise, for the payment of those who contract directly with the subcontractors. . . . But this method of protection is generally inadequate to cope with remote who may be a manufacturer, a wholesaler by an ordinary materialman, who may be a manfacturer, a wholesaler or a retailer.' Id., at 110, 64 S.Ct., at 895. (Emphasis added.)
13
The Court of Appeals properly construed our holding in MacEvoy to establish as a test for whether one is a subcontractor, the substantiality and importance of his relationship with the prime contractor.7 It is the substantiality of the relationship which will usually determine whether the prime contractor can protect himself, since he can easily require bond security or other protection from those few 'subcontractors' with whom he has a substantial relationship in the performance of the contract.
14
Measured against that test, Cerpac was clearly a subcontractor for the purposes of the Act. The Miller Act is 'highly remedial (and) entitled to a liberal construction and application in order properly to effectuate the Congressional intent to protect those whose labor and materials go into public projects.' MacEvoy, supra, 322 U.S., at 107, 64 S.Ct., at 893. It is consistent with that intent to look at the total relationship between Cerpac and Rich, not just the contract to supply exterior plywood, to determine whether Cerpac was a subcontractor.8 Cerpac had not only agreed to supply standard plywood but also had a separate contract to select, modify, detail, and install all custom millwork for the Beale project. Cerpac, in effect, took over a substantial part of the prime contract itself. Moreover, the management and financial structures of the two companies were closely interrelated and their relationship on the Beale project was the same as on many other similar Government projects during the same period. Cerpac was, as the Court of Appeals observed, 'in a special, integral, almost symbiotic relationship (with) Rich.' 473 F.2d, at 724. It would have been easy for Rich to secure itself from loss as a result of a default by Cerpac.
III
15
We also agree with the courts below that venue under the Miller Act for suit on the shipment diverted to South Carolina properly lay in the Eastern District of California. The Act provides:
16
'Every suit instituted under this section shall be brought in . . . the United States District Court for any district in which the contract was to be performed and executed and not elsewhere . . ..' 40 U.S.C. § 270b(b).
17
Petitioners argue that this provision bars a district court in California9 from adjudicating respondent's claims arising from the shipments of plywood delivered in South Carolina. But § 270b(b) is merely a venue requirement10 and there was clearly a sufficient nexus for its satisfaction. The 'Beale 647' contract between Cerpac and Industrial was executed in California, all of the materials described therein to be delivered to a worksite in that State. Although one of the 22 shipments made pursuant to the contract was later diverted to South Carolina for petitioner Rich's convenience, the site for performance of the original contract remained the same for Miller Act purposes.11 Several shipments to the Beale site were made after the South Carolina shipment. Moreover, petitioners have pointed to no prejudice resulting from the case's being heard in the California court and considerations of judicial economy and convenience clearly support venue in the District Court where all of respondent's claims arising from the 'Beale 647' contract could be adjudicated in a single proceeding.
IV
18
We turn now to the question of whether attorneys' fees were properly awarded respondent as a successful Miller Act plaintiff. The so-called 'American Rule' governing the award of attorneys' fees in litigation in the federal courts is that attorneys' fees 'are not ordinarily recoverable in the absence of a statute or enforceable contract providing therefor.' Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717, 87 S.Ct. 1404, 1407, 18 L.Ed.2d 475 (1967). There was no contractual provision concerning attorneys' fees in this case. Nor does the Miller Act explicitly provide for an award of attorneys' fees to a successful plaintiff. But the Court of Appeals construed the Act to require an award of attorneys' fees where the 'public policy' of the State in which suit was brought allows for the award of fees in similar contexts. The court reasoned that the Act provides remedies " in lieu of the lien upon land and buildings customary where property is owned by private persons' . . .. The federal remedy was intended to substitute for the unavailable state remedy of the lien. Therefore, if state (law) allows a supplier on private projects to recover such fees, there is no reason for a different rule to apply to federal projects . . ..'12 Looking to California law, the Court of Appeals found an award of attorneys' fees proper because Cal.Govt.Code § 4207 (1966) allowed for the recovery of attorneys' fees in state actions on the bonds of contractors for state and municipal public works projects.13
19
We think the Court of Appeals erred in its construction of the statute. The Miller Act provides a federal cause of action, and the scope of the remedy as well as the substance of the rights created thereby is a matter of federal not state law. Neither respondent nor the court below offers any evidence of congressional intent to incorporate state law to govern such an important element of Miller Act litigation as liability for attorneys' fees. Many federal contracts involve construction in more than one State, and often, as here, the parties to Miller Act litigation have little or no contact, other than the contract itself, with the State in which the federal project is located. The reasonable expectations of such potential litigants are better served by a rule of uniform national application.
20
A uniform rule also avoids many of the pitfalls which have already manifested themselves in using state law referents. For example, California law does not provide for awards of attorneys' fees in suits arising from private construction projects. And, a California court had held that the state statute providing for awards of attorneys' fees in suits on the bonds of state and municipal public works contractors is inapplicable to construction projects of the United States.14 The Court of Appeals nonetheless held that since federal law controls Miller Act recoveries, it was free to look to 'state policy' rather than state law and proceeded to find an award of attorneys' fees appropriate. Although the court below premised its decision on the theory that a Miller Act remedy is afforded "in lieu of the lien upon land and buildings customary where property is owned by private persons," it gave respondent more protection than California law affords litigants involved in disputes arising from private construction projects who are not entitled to an award of attorneys' fees. We think it better to extricate the federal courts from the morass of trying to divine a 'state policy' as to the award of attorneys' fees in suits on construction bonds.
21
Finally, the Court of Appeals intimates that in providing that Miller Act claimants should recover the 'sums justly due,' 40 U.S.C. § 270b(a), Congress must have intended to provide for the award of attorneys' fees because without such fee shifting, Miller Act claimants would not be fully compensated—the claimant's recovery would always be diminished by the cost of his legal representation. This argument merely restates one of the oft-repeated criticisms of the American Rule.15 Almost a half century ago, the Massachusetts Judicial Council pleaded for reform, asking, 'On what principle of justice can a plaintiff wrongfully run down on a public highway recover his doctor's bill but not his lawyer's bill?'16 We recognize that there is some force to the argument that a party who must bear the cost of his attorneys' fees out of his recovery is not made whole. But there are countervailing considerations as well. We have observed that 'one should not be penalized for merely defending or prosecuting a lawsuit, and that the poor might be unjustly discouraged from instituting actions to vindicate their rights if the penalty for losing included the fees of their opponents' counsel.' Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718, 87 S.Ct. 1404, 1407, 18 L.Ed.2d 475 (1967). Moreover, 'the time, expense, and difficulties of proof inherent in litigating the question of what constitutes reasonable attorney's fees,' ibid., has given us pause, even though courts have regularly engaged in that endeavor in the many contexts where fee shifting is mandated by statute, policy, or contract. Finally, there is the possibility of a threat being posed to the principle of independent advocacy by having the earnings of the attorney flow from the pen of the judge before whom he argues.
22
The American Rule has not served, however, as an absolute bar to the shifting of attorneys' fees even in the absence of statute or contract. The federal judiciary has recognized several exceptions to the general principle that each party should bear the costs of its own legal representation. We have long recognized that attorneys' fees may be awarded to a successful party when his opponent has acted in bad faith, vexatiously, wantonly, or for oppressive reasons,17 or where a successful litigant has conferred a substantial benefit on a class of persons and the court's shifting of fees operates to spread the cost proportionately among the members of the benefited class.18 The lower courts have also applied a rationale for fee shifting based on the premise that the expense of litigation may often be a formidable if not insurmountable obstacle to the private litigation necessary to enforce important public policies.19 This 'private attorney general' rationale has not been squarely before this Court and it is not so now; nor do we intend to imply any view either on the validity or scope of that doctrine. It is sufficient for our purposes here to observe that this case clearly does not fall within any of these exceptions.
23
Miller Act suits are plain and simple commercial litigation. In effect then, we are being asked to go the last mile in this case, to judicially obviate the American Rule in the context of everyday commercial litigation, where the policies which underlie the limited judicially created departures from the rule are inapplicable. This we are unprepared to do. The perspectives of the profession, the consumers of legal services, and other interested groups should be weighed in any decision to substantially undercut the application of the American Rule in such litigation. Congress is aware of the issue.20 Thus whatever the merit of arguments for a further departure from the American Rule in Miller Act commercial litigation, those arguments are properly addressed to Congress.
24
The judgment of the Court of Appeals is affirmed insofar as it holds that Cerpac is a subcontractor for Miller Act purposes and that there was proper venue for suit on the shipment diverted to South Carolina, but reversed insofar as it holds that an award of attorneys' fees to respondent Industrial is required by the Act.
25
It is so ordered.
26
Judgment of Court of Appeals affirmed in part and reversed in part.
27
Mr. Justice DOUGLAS, dissenting in part.
28
The Court, dealing with the Miller Act's predecessor, held in Illinois Surety Co. v. John Davis Co., 244 U.S. 376, 380, 37 S.Ct. 614, 616, 61 L.Ed. 1206 that the Heard Act 'must be construed liberally.' That same principle applies to the Miller Act. Fleisher Engineering and Construction Co. v. United States for Use and Benefit of Hallenbeck, 311 U.S. 15, 17—18, 61 S.Ct. 81, 82—83, 85 L.Ed. 12. The Act is silent as to attorneys' fees, saying only that the payment bond shall allow the supplier 'to prosecute said action to final execution and judgment for the sum or sums justly due him.' 40 U.S.C. § 270b(a).
29
The Miller Act is unlike the Lanham Act involved in Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 87 S.Ct. 1404, 18 L.Ed.2d 475. That Act itemized the components of the remedy which the Act afforded: injunctive relief, treble damages, and 'costs' (which by federal statute did not include attorneys' fees). Id., at 719—720, 87 S.Ct., at 1407—1408. Moreover, attempts to amend the Lanham Act to include attorneys' fees had never succeeded, id., at 721, 87 S.Ct., at 1408. Here there is no such legislative history; nor does the Miller Act itemize the components of the 'sum or sums justly due.'
30
The Court says that dependence on state law is inappropriate, for we deal with a federal standard that should be uniform. That takes great liberties with the Miller Act. Here the contract and law were made in California and were to be performed there. In Illinois Surety Co. v. John Davis Co., supra, the contract and law were made in Illinois and were to be performed there. 'Questions of liability for interest must therefore be determined by the law of that State,' said Mr. Justice Brandeis speaking for the Court, 244 U.S., at 381, 37 S.Ct., at 617. If state law would give the claimant interest, it should give him attorney's fees based on the purpose of the Miller Act. Judge Carter writing for the Court of Appeals pointed out that the Miller Act is the federal equivalent of state lien laws. See 473 F.2d 720, 727. The remedy in a federal suit is therefore properly composed of the same elements as would be available to lien claimants in a state court collecting for labor and materials furnished on nonfederal projects. One of the elements of recovery permitted in a California court is attorneys' fees. The 'sum or sums justly due' should as a matter of federal law be construed to be the same as that due a claimant whose remedy is based on a state statute, when the federal remedy was intended to be the equivalent of the state remedy.
31
What Mr. Justice Brandeis said of interest is equally applicable to attorneys' fees under the Miller Act.* Under the circumstances present here it would seem quite unjust not to include in the sum that is due the cost of collecting that sum.
1
Government contracts of less than $2,000 in value are excepted from the statute's coverage.
2
Shipments under the contract were invoiced by the truckload. The South Carolina shipment involved two such truckloads, while the other 21 shipments were each of only one truckload of lumber.
3
When Cerpac fell behind in its payments, Industrial indicated it would not deliver the final two truckloads of wood to the Beale project until it received satisfactory assurances of payment. Rich agreed to pay Industrial directly for the last two shipments, with Cerpac to receive its customary profit as a commission from Industrial. The last two shipments were made on May 18 and June 23, 1966, invoices being payable in full 30 days thereafter. The shipments were invoiced directly to Rich with copies to Cerpac, the invoices showing the shipments as being under the original 'Beale 647' contract between Industrial and Cerpac. Rich nonetheless refused to pay the full invoice price of the two final shipments. Rich has since conceded its obligation to pay Industrial's claim for these two shipments, so there is no longer any controversy in regard to the amounts due on those invoices.
4
Cerpac subsequently filed for discharge in bankruptcy and is no longer a party.
5
All invoices under the Beale contract between Industrial and Cerpac were payable within 30 days with interest at an annual rate of eight percent after the due date. The District Court awarded Industrial seven percent interest on all 'unliquidated claims.' The Court of Appeals, however, ruled that the amounts due under the terms of the contract were liquidated damages and should bear an interest rate of eight percent.
The District Court had also given judgment against Transamerica on its bond for the shipment which was sent to the South Carolina site. The Court of Appeals held that judgment should not have been rendered against Transamerica for material not delivered to the project for which it served as surety.
6
Petitioners also raised issues in their brief concerning the timeliness of the Miller Act notice and the amount of prejudgment interest awarded respondent. Those issues were not raised in the petition for certiorari, hence are not properly before the Court. See, e.g., Namet v. United States, 373 U.S. 179, 190, 83 S.Ct. 1151, 1156, 10 L.Ed.2d 278 (1963); Rule 23.1(c) of the Rules of this Court.
7
See, e.g., Aetna Casualty & Surety Co. v. United States for Use and Benefit of Gibson Steel Co., 382 F.2d 615, 617 (CA5 1967); Basich Bros. Construction Co. v. United States for Use of Turner, 159 F.2d 182 (CA9 1946); cf. United States for Use of Bryant v. Lembke Construction Co., 370 F.2d 293 (CA10 1966).
8
Travelers Indemnity Co. v. United States for Use and Benefit of Western Steel Co., 362 F.2d 896, 898 (CA9 1966); Wellman Engineering Co. v. MSI Corp., 350 F.2d 285, 286 (CA2 1965).
9
Beale Air Force Base is located in the jurisdiction of the Federal District Court for the Eastern District of California, hence respondent brought suit on the Beale contract in that court.
10
United States ex rel. Capolino Sons, Inc. v. Electronic & Missile Facilities, Inc., 364 F.2d 705 (CA2 1966); see cases collected, id., at 707.
11
The Court of Appeals reversed the judgment against Transamerica, on its bond, as to the shipment of wood diverted to South Carolina, because a Miller Act surety is liable only for material supplied for use on the bonded project. But, a decision on the ultimate question of the surety's liability involves different considerations from the questions of whether venue for suit on the bond is proper. Petitioner Rich's liability for the amount due on the South Carolina shipment was based on a pendent claim, the substance of which was not challenged in this Court or in the Court of Appeals.
12
473 F.2d 720, 727 (1973). The same analysis has been accepted in other cases; see Transamerica Insurance Co. v. Red Top Metal, Inc., 384 F.2d 752 (CA5 1967); United States for Use of White Masonry, Inc. v. F. D. Rich Co., 434 F.2d 855, 859 (CA9 1970); Arnold v. United States for Use of Bowman Mechanical Contractors, Inc., 470 F.2d 243, 245 (CA10 1972).
13
After the decision in the District Court, but prior to the Court of Appeals' opinion, Cal.Govt.Code § 4207 (1966) was replaced, and the effective provisions transferred to Cal.Civ.Code § 3250 (Supp.1974), by an act of the California Legislature, dated August 31, 1969, the took effect on January 1, 1971. Given our reasoning, however, the revision in language of the applicable California law is of no relevance to the result reached herein.
14
B. C. Richter Contracting Co. v. Continental Casualty Co., 230 Cal.App.2d 491, 41 Cal.Rptr. 98 (1964) (construing the former law, see n. 13, supra).
15
The American Rule has come under repeated criticism over the years. See generally Ehrenzweig, Reimbursement of Counsel Fees and the Great Society, 54 Cal.L.Rev. 792 (1966); Kuenzel, The Attorney's Fee: Why Not a Cost of Litigation?, 49 Iowa L.Rev. 75 (1963); McLaughlin, The Recovery of Attorneys' Fees: A New Method of Financing Legal Services, 40 Ford.L.Rev. 761 (1972); McCormick, Counsel Fees and Other Expenses of Litigation as an Element of Damages, 15 Minn.L.Rev. 619 (1931); Stoebuck, Counsel Fees Included in Costs: A Logical Development, 38 U.Colo.L.Rev. 202 (1966); Note, Attorney's Fees: Where Shall the Ultimate Burden Lie?, 20 Vand.L.Rev. 1216 (1967).
16
Judicial Council of Massachusetts, First Report, 11 Mass.L.Q. 1, 64 (1925).
17
See, e.g., Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962); McEnteggart v. Cataldo, 451 F.2d 1109 (CA1 1971); 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); 6 J. Moore, Federal Practice 54.77(2), p. 1709 (2d ed. 1974).
18
See, e.g., Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973); Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970); Natural Resources Defense Council v. EPA, 484 F.2d 1331 (CA1 1973); Callahan v. Wallace, 466 F.2d 59 (CA5 1972); Bright v. Philadelphia-Baltimore-Washington Stock Exchange, 327 F.Supp. 495, 506 (ED Pa.1971); cf. Nussbaum, Attorney's Fees in Public Interest Litigation, 48 N.Y.U.L.Rev. 301 (1973); Comment, The Allocation of Attorney's Fees After Mills v. Electric Auto-Lite Co., 38 U.Chi.L.Rev. 316 (1971).
19
See, e.g., Cooper v. Allen, 467 F.2d 836 (CA5 1972); Knight v. Auciello, 453 F.2d 852 (CA1 1972); Lee v. Southern Home Sites Corp., 444 F.2d 143 (CA5 1971); La Raza Unida v. Volpe, 57 F.R.D. 94 (N.D.Cal.1972); Ross v. Goshi, 351 F.Supp. 949 (Haw.1972); Sims v. Amos, 340 F.Supp. 691 (MD Ala.1972); cf. Bradley v. School Bd. of City of Richmond, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974); North-cross v. Memphis Bd. of Education, 412 U.S. 427, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973); Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968); Nussbaum, n. 18, supra; Note, Awarding Attorneys' Fees to the 'Private Attorney General': Judicial Green Light to Private Litigation in the Public Interest, 24 Hastings L.J. 733 (1973).
20
A congressional committee charged with making a broad-based inquiry about legal services is currently studying, inter alia, the general issue of attorneys' fees. Hearings on Legal Fees before the Subcommittee on Representation of Citizen Interests of the Senate Committee on the Judiciary, 93d Cong., 1st Sess. (1973); cf. S.Rep.No.93—146 (1973), accompanying S.Res.101.
*
The Court of Appeals for the Fifth Circuit awarded attorneys' fees under a Florida statute where suit was brought under the Miller Act, United States for Use and benefit of Weyerhaeuser Co. v. Bucon Construction Co., 430 F.2d 420, 425. And see United States for Use of White Masonry, Inc. v. F. D. Rich Co., 434 F.2d 855, 859, where the Court of Appeals for the Ninth Circuit followed Alaska law.
| 56
|
417 U.S. 72
94 S.Ct. 2167.
40 L.Ed.2d 668
Donald C. CASS, Petitioner,v.UNITED STATES. Francis A. ADAMS et al., Petitioners, v. SECRETARY OF the NAVY et al.
Nos. 73—604, 73—5661.
Argued April 16, 1974.
Decided May 28, 1974.**
Syllabus
Title 10 U.S.C. § 687(a) provides for readjustment pay for an Armed Forces Reservist who is involuntarily released from active duty and has completed, immediately before his release, 'at least five years of continuous active duty,' computed by multiplying his years of active service by two months' basic pay of his grade at the time of release, and further provides that '(f)or the purposes of this subsection—. . . (2) a part of a year that is six months or more is counted as a whole year, and a part of a year that is less than six months is disregarded . . ..' Held: the 'rounding' provision, as is clear from the statute's legislative history, applies only in computing the amount of readjustment pay, and not in determining eligibility therefor; hence, a reservist must serve a minimum of five full years of continuous active duty before his involuntary release in order to qualify for readjustment benefits. Pp. 75—84.
483 F.2d 220, affirmed.
Arthur B. Hanson, Washington, D.C., for petitioner in No. 73 604.
William A. Dougherty, Tustin, Cal., for petitioners in No. 73 5661.
William L. Patton, Boston, Mass., for respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
Congress has provided in 10 U.S.C. § 687(a)1 that an otherwise eligible member of a reserve component of the Armed Forces, who is involuntarily released from active duty, 'and who has completed, immediately before his release, at least five years of continuous active duty, is entitled to a readjustment payment computed by multiplying his years of active service . . . by two months' basic pay of the grade in which he is serving at the time of his release.' It is further provided that '(f)or the purposes of this subsection—. . . (2) a part of a year that is six months or more is counted as a whole year, and a part of a year that is less than six months is disregarded . . ..' We must decide whether the 'rounding' provision set forth in § 687(a)(2) is to be applied in determining eligibility for readjustment pay, as well as in computing the amount of readjustment pay to which an eligible reservist is entitled, so that involuntarily released reservists who have completed four years and six months or more, but less than five years, of continuous active duty prior to their release are nonetheless entitled to a readjustment payment. The Court of Appeals held that the rounding clause applied only to computation of readjustment payments, 483 F.2d 220 (CA9 1973), contrary to the earlier decision of the Court of Claims that the rounding provision is applicable in determining eligibility for, as well as computation of, readjustment payments under § 687, Schmid v. United States, 436 F.2d 987, 193 Ct.Cl. 780, cert. denied, 404 U.S. 951, 92 S.Ct. 283, 30 L.Ed.2d 268 (1971). We granted certiorari to resolve the conflict, 414 U.S. 1128, 94 S.Ct. 864, 38 L.Ed.2d 752 (1974), and now affirm the judgment of the Court of Appeals.
2
Each petitioner had served continuously for more than four years and six months, but less than five years, when notified that he would be honorably but involuntarily released from active duty in the Reserves. In No. 73—604, petitioner Cass, a captain in the Army Reserve, was in fact released from active duty before completing five years of service, and when the Army denied his request for readjustment pay, he brought suit in the United States District Court for the District of Montana, which granted relief on the authority of the Court of Claims' decision in Schmid, supra. In No. 73—5661, petitioners Adams, Steneman, and Youngquist, captains in the Marine Corps Reserve, brought separate actions in the Central District of California, prior to their release, seeking a modification of their release orders to provide for readjustment pay. The District Court subsequently held that they were entitled to readjustment pay based on active service of more than four and one-half years.2 The Government's appeals from the decisions of the two District Courts were consolidated, and the Court of Appeals reversed each, holding that the statute and its legislative history make clear that readjustment pay is not to be provided to reservists involuntarily released from active duty with less than five full years of continuous service.3
3
Petitioners assert to the contrary that the language of § 687(a) unambiguously establishes that four and one-half years of continuous active service qualifies an involuntarily released reservist for readjustment benefits, that the legislative history of the rounding provision should therefore not be considered in resolving the issue, and that even if the legislative history is considered, it supports the construction urged by petitioners as much as that contended for by the Government. We are unpersuaded by these arguments, however.
4
The statute sets out both the eligibility requirements for entitlement to readjustment pay and the method of computing the amount of the applicable payment in the same sentence. Entitlement is based, in part, on the completion, immediately before the involuntary release of a reservist, of 'at least five years of continuous active duty,' and the payment is to be computed by multiplying the reservist's 'years of active service' by two months' basic pay of the grade in which he is serving when released. Because the rounding provision expressly provides that it is to be applied for 'purposes of this subsection,' petitioners contend that the provision modifies the term 'year' whenever that term appears in the subsection, i.e., to determine whether a reservist has completed five years of service to be eligible for readjustment benefits, as well as to determine the number of years of service to use as a multiplier in computing the amount of readjustment pay owed. This is so plainly true, petitioners contend, that resort to legislative history is unnecessary and improper.4
5
Our view is to the contrary. The rounding provision is arguably subject to the interpretation given it by petitioners, but did Congress intend that provision to override its explicit requirement of 'at least' five years of service? We think the answer to that question is sufficiently doubtful to warrant our resort to extrinsic aids to determine the intent of Congress, which, of course, is the controlling consideration in resolving the issue before us.5 Moreover, the Court has previously stated that '(w)hen aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no 'rule of law' which forbids its use, however clear the words may appear on 'superficial examination," United States v. American Trucking Assns., Inc., 310 U.S. 534, 543—544, 60 S.Ct. 1059, 1064, 84 L.Ed. 1345 (1940); Harrison v. Northern Trust Co., 317 U.S. 476, 479, 63 S.Ct. 361, 362, 87 L.Ed. 407 (1943). Such aid is available in this case and we decline to ignore the clearly relevant history of § 687(a).
6
Certain reservists involuntarily released from active duty are granted lump-sum readjustment pay to help them readjust to civilian life and to encourage qualified reservists to remain on active duty for extended periods. Readjustment pay was first provided by the Act of July 9, 1956, 70 Stat. 517, which conditioned entitlement on the completion immediately prior to release of 'at least five years of continuous active duty.' It also provided that '(f)or the purposes of computing the amount of readjustment payment (1) a part of a year that is six months or more is counted as a whoe year, and a part of a year that is less than six months is disregarded . . ..' Ibid. As first introduced and passed by the House, however, the bill provided, as the codified version does now, that '(f)or the purposes of this subsection' the six-month rounding provision would apply. H.R.Rep.No.1960, 84th Cong., 2d Sess., 9 (1956); 102 Cong.Rec. 10120 (June 12, 1956). It was nonetheless made clear by the debate in the House prior to passage that five years was to be the minimum eligibility requirement.6 The Senate, focusing on a letter from the Comptroller General to the Chairman of the Armed Services Committee suggesting that the language be clarified to ensure that five years was to be the minimum period necessary to qualify for a readjustment payment, amended the bill to reflect this more clearly,7 id., at 11333 11334 (June 29, 1956), and the House readily concurred the same day in the Senate amendments to the bill as the final language of the 1956 Act, id., at 11503—11504.
7
The Act was amended in June 1962, primarily to raise the amount of readjustment benefits paid to involuntarily released reservists to equal the amount provided as severance pay to involuntarily released regular officers,8 but it retained the explicit language specifying the use of the rounding provision for 'purposes of computing the amount of the readjustment payment,' 76 Stat. 120, and there was no discussion in the congressional reports9 suggesting any modification of this language. Less than three months later, however, the present language was adopted as part of a measure codifying 'recent military laws.' Act of Sept. 7, 1962, 76 Stat. 506. The committee reports accompanying the codification proposal make plain that no change in the eligibility requirements for readjustment pay was intended by the enacted change in phraseology.10 The Senate Judiciary Committee Report explained the purpose of the proposal as follows:
8
'This bill, as amended, is not intended to make any substantive change in existing law. Its purpose is to bring up to date title 10 of the United States Code, by incorporating the provisions of a number of public laws that were passed while the bill to enact title 10 into law was still pending in the Contress, and to transfer to title 10, provisions now in other parts of the code.' S.Rep.No. 1876, 87th Cong., 2d Sess., 6 (1962), U.S.Code Cong. & Admin.News, p. 2456.
9
The same limited purpose was expressed by the House Judiciary Committee, which further explained that '(s)ome changes in style and form have been made to conform the provisions to the style and form of title 10, but these changes do not affect the substance.' H.R.Rep.No.1401, 87th Cong., 2d Sess., 1 (1962).
10
These congressional comments, combined with the fact that no consideration of any change in eligibility standards appears in either the cited committee reports or in the proceedings leading to adoption of the codification bill by the House, 108 Cong.Rec. 4435—4441 (1962), and by the Senate, 108 Cong.Rec. 17088—17089 (1962), conclusively demonstrate that Congress did not reduce the minimum period of qualifying service for entitlement to readjustment benefits from five to four and one-half years when it substituted the words in the codified version of § 687(a) for the unambiguous language of the prior substantive enactments. We are unpersuaded by petitioners' claim that the codified version is nevertheless to be accepted as correctly expressing the will of Congress and as a mere unexplained version of the language of prior law, see Continental Casualty Co. v. United States, 314 U.S. 527, 529—530, 62 S.Ct. 393, 394—395, 86 L.Ed. 426 (1942); United States v. Bowen, 100 U.S. 508, 513, 25 L.Ed. 631 (1880). Here the meaning of the predecessor statute is clear and quite different from the meaning petitioners would ascribe to the codified law; and the revisers expressly stated that changes in language resulting from the codification were to have no substantive effect. Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 227—228, 77 S.Ct. 787, 790—791, 1 L.Ed.2d 786 (1957); United States v. Cook, 384 U.S. 257, 260, 86 S.Ct. 1412, 1413, 16 L.Ed.2d 516 (1966); City of Greenwood v. Peacock, 384 U.S. 808, 815—816, 86 S.Ct. 1800, 1805—1806, 16 L.Ed.2d 944 (1966).
11
The Court of Claims in the Schmid case, 436 F.2d 987, 193 Ct.Cl. 780 (1971), thought that in codifying § 687(a), Congress restored the original language of the 1956 House bill, which it knew had been interpreted by the Comptroller General as reducing the minimum eligibility requirement to four years, six months. Id., at 991, 193 Ct.Cl., at 787. But the codification language was accompanied by no reference to the 1956 legislation or to the views then expressed by the Comptroller General.11 What is more, it is plain that the language of the original 1956 bill was itself not intended to set the minimum eligibility period at less than five years.12 The codification, if construed as petitioners would have it, would not represent a 'return' to the original intent of Congress. It is also significant that there is no hint of any consideration of what such a change would cost or how it would affect the goals of the readjustment pay provisions, contrary to the careful attention these matters received when benefits under the readjustment pay statute were raised in 1962. As Judge Nichols commented in dissenting from the decision in Schmid: 'In resolving ambiguity, we must allow ourselves some recognition of the existence of sheer inadvertence in the legislative process.' Id., at 992, 193 Ct.Cl., at 789. Finally, we cannot agree with the contention that a change in minimum eligibility from five to four and one-half years should not be considered a 'substantive change' because once a reservist must re-enlist beyond the initial enlistment term of four years, the purpose of the readjustment benefit scheme as an inducement to extended service is satisfied. Not only is the selection of the particular minimum term of eligibility a peculiarly legislative task dependent upon substantive judgment, but the very fact that such a change involves a substantially greater expenditure of funds places this sort of revision into the substantive realm.
12
We thus conclude that the rounding provision of § 687(a)(2) is applicable only in the determination of how much readjustment pay an otherwise qualified reservist is authorized, and that such a reservist must serve a minimum of five full years of continuous active duty before he is involuntarily released in other to be eligible for readjustment benefits. The judgment of the Court of Appeals is affirmed.
13
Affirmed.
14
Mr. Justice DOUGLAS, agreeing with the Court of Claims in Schmid v. United States, 436 F.2d 987, 193 Ct.Cl. 780, would reverse the judgment of the Court of Appeals.
**
Together with No. 73—5661, Adams et al. v. Secretary of the Navy et al., also on certiorari to the same court.
1
In full, 10 U.S.C. § 687(a) provides:
§ 687. Non-Regulars: readjustment payment upon involuntary release from active duty.
'(a) Except for members covered by subsection (b), a member of a reserve component or a member of the Army or the Air Force without component who is released from active duty involuntarily, or because he was not accepted for an additional tour of active duty for which he volunteered after he had completed a tour of active duty, and who has completed, immediately before his release, at least five years of continuous active duty, is entitled to a readjustment payment computed by multiplying his years of active service (other than in time of war or of national emergency declared by Congress after June 28, 1962), but not more than eighteen, by two months' basic pay of the grade in which he is serving at the time of his release. However, a member who is released from active duty because his performance of duty has fallen below standards prescribed by the Secretary concerned, or because his retention on active duty is not clearly consistent with the interests of national security, is entitled to a readjustment payment computed on the basis of one-half of one month's basic pay of the grade in which the member is serving at the time of his release from active duty. A person covered by this subsection may not be paid more than two years' basic pay of the grade in which he is serving at the time of his release or $15,000, whichever amount is the lesser. For the purposes of this subsection—
'(1) a period of active duty is continuous if it is not interrupted by a break in service of more than 30 days;
'(2) a part of a year that is six months or more is counted as a whole year, and a part of a year that is less than six months is disregarded; and
'(3) a period for which the member concerned has received readjustment pay under another provision of law may not be included.'
2
The District Court had earlier granted petitioners' motion for a preliminary injunction prohibiting their involuntary release without readjustment pay. As a result, these petitioners had each served more than five years on active duty by the time the decision awarding them readjustment benefits was rendered. In deciding they were entitled to readjustment pay, however, the District Court expressly disclaimed any reliance on the fact that they actually served more than five years, since they were permitted to do so only under the compulsion of the court's preliminary injunction. The injunction was dissolved as moot in the wake of the award of readjustment pay.
3
The Court of Appeals also held that the injunction granted in favor of petitioners in No. 73—5661, see n. 2, supra, was improperly issued and could not be relied upon to support eligibility for readjustment benefits. 483 F.2d 220, 222 (CA9 1973). That ruling is not challenged in this Court.
4
Petitioners rely on cases suggesting that recourse to legislative materials is unwarranted when the meaning of statutory language is clear and unequivocal. E.g., United States v. Oregon, 366 U.S. 643, 648, 81 S.Ct. 1278, 1280, 6 L.Ed.2d 575 (1961); Ex parte Collett, 337 U.S. 55, 61, 69 S.Ct. 944, 947, 93 L.Ed. 1207 (1949); Helvering v. City Bank Farmers Trust Co., 296 U.S. 85, 89, 56 S.Ct. 70, 72, 80 L.Ed. 62 (1935); United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 83, 53 S.Ct. 42, 44, 77 L.Ed. 175 (1932). In the first two of these cases, though finding the language to be construed this clear, the Court nonetheless did look at the legislative history of the statutory provisions to be interpreted.
5
A majority of the Court of Claims in Schmid v. United States, 436 F.2d 987, 193 Ct.Cl. 780 (1971), though they also examined the legislative history, found it clear from the language of § 687(a) that the rounding provision should apply to both eligibility and computation determinations, whereas the Court of Appeals in these cases thought it clear that the minimum five-year eligibility clause is 'not subject to the interpretation given it by the court in Schmid.' 483 F.2d, at 222. Obviously there is room for reasonable dispute over the construction of § 687(a) based on the statutory language alone.
Petitioners tender other arguments, apart from that founded on the consistent use of the word 'years,' to demonstrate that, read in its statutory context, the rounding provision in § 687(a) was plainly intended to establish the minimum qualifying term of service at four years, six months, but none of them overcomes the ambiguity created by the direct establishment of 'at least five years' of service as a qualification for readjustment benefits. Thus, it is argued that § 687(a)(3) excludes from the determination of both eligibility and the amount of benefits payable 'a period for which the member concerned has received readjustment pay under another provision of law,' and given the grammatical structure of § 687(a), n. 1, supra, that the rounding rule in subsection (2) must be applied for the same purposes as the 'prior period exclusion' rule of subsection (3). The Government asserts that the underlying premise that subsection (3) applies for both purposes is erroneous. As was the case with the rounding provision before codification, see text infra, the prior period exclusion was expressly to be applied only '(f)or the purposes of computing the amount of the readjustment payment.' Act of June 28, 1962, 76 Stat. 120. Furthermore, the current Department of Defense Military Pay and Allowances Entitlements Manual § 40414(b) (Jan. 1, 1967) still excludes such prior service only for
computing the amount of readjustment pay due, not for determining entitlement. The Government suggests, therefore, that if §§ 687(a) (2) and (3) are to be construed as applicable for the same purpose, that purpose is only for computation. Manifestly, the parties' dispute over the applicability of subsection (3) does not resolve the issue of when subsection (2) is to apply; it merely restates the problem.
Petitioners also rely on 10 U.S.C. § 6330, which expressly applies a like rounding rule both to determine eligibility for transfer to the Fleet Reserve and, thereby, for retainer pay, by enlisted members of the Navy and Marine Corps, and to compute the amount of retainer pay due. The pertinent portions of § 6330 provide as follows:
§ 6330. Enlisted members: transfer to Fleet Reserve and Fleet Marine Corps Reserve; retainer pay.
'(b) An enlisted member of the Regular Navy or the Naval Reserve who has completed 20 or more years of active service in the armed forces may, at his request, be transferred to the Fleet Reserve. An enlisted member of the Regular Marine Corps or the Marine Corps Reserve who has completed 20 or more years of active service in the armed forces may, at his request, be transferred to the Fleet Marine Corps Reserve.
'(c) Each member who is transferred to the Fleet Reserve or the Fleet Marine Corps Reserve under this section is entitled when not on active duty, to retainer pay at the rate of 2 1/2 percent of the basic pay that he received at the time of transfer multiplied by the number of years of active service in the armed forces . . ..
'(d) For the purposes of subsections (b) and (c), a part of a year that is six months or more is counted as a whole year and a part of a year that is less than six months is disregarded. A completed minority enlistment is counted as four years of active service, and an enlistment terminated within three months before the end of the term of enlistment is counted as active service for the full term.'
It is readily apparent that the rounding provision of § 687(a)(2), contains an ambiguity not present in the more explicit language of
§ 6330(d). Nor does the particular rounding provision in § 6330 indicate any legislative custom in this context that should control the construction of § 687(a). At most, § 6330 indicates that the construction of § 687(a) proffered by petitioners could fit within the structure of Title 10, not that the section must be so construed.
6
The sponsor of the legislation, Representative Brooks, engaged in the following dialogue and explanation:
'Mr. BROOKS of Louisiana. . . . We started with 5 years because we estimate that the average individual who stays 5 years in the service has in view making a career of that service. After he has
gone a long way toward making a career of the service and when we take that opportunity away from him and turn him back to civilian life, we feel that there should be some sort of readjustment.
'Mr. GROSS. The minimum, then, is 5 years; is that correct?
'Mr. BROOKS of Louisiana. That is correct. The reason for the 5 years, of course, is that a 3-year enlistment would require a reenlistment, or . . . a man who is in for 4 years will have to reenlist for an extended period. After he completes the first enlistment I think he intends to stay in the service and this encourages him to stay in the service as long as the service needs him.' 102 Cong.Rec. 10118—10119 (1956).
7
The Comptroller General's letter was contained in the Senate Report and provides in pertinent part as follows:
'Although the language of subsection (a) of the bill seems to indicate that a minimum of 5 years' continuous active duty as an officer or warrant officer is necessary to qualify for a readjustment payment, the last sentence of that subsection appears to reduce the minimum qualifying service to 4 years and 6 months. Presumably the provision authorizing the counting of 6 months or more as a whole year was intended to apply only for the purpose of computing the amount of a lump-sum payment and not the quantum of qualifying service. If so, the language should be clarified, perhaps somewhat as follows:
"For the purpose of computing the amount of the readjustment payment a fractional part of a year amounting to 6 months (or 183 days) or more shall be counted as a whole year and a shorter period shall be disregarded." S.Rep.No.2288, 84th Cong., 2d Sess., 11 (1956).
The Report itself explains that the amended provision in the bill was designed to limit the application of the rounding formula 'to years used in the computation of readjustment pay and not for years to establish the 5-year minimum of substantially continuous active duty that is required to qualify for readjustment payments.' Id., at 2.
8
See H.R.Rep.No.1007, 87th Cong., 1st Sess. (1961); S.Rep.No.1096, 87th Cong., 1st Sess. (1961).
9
N. 8, supra.
10
The codification bill had been referred in both the House and the Senate to the Judiciary Committees, unlike the earlier substantive consideration of the bills establishing and amending the readjustment pay provisions by the Armed Services Committees of the respective chambers of Congress.
11
See n. 7, supra.
12
See n. 6, supra.
| 12
|
417 U.S. 156
94 S.Ct. 2140
40 L.Ed.2d 732
Morton EISEN, etc., Petitioner,v.CARLISLE & JACQUELIN et al.
No. 73—203.
Argued Feb. 25, 1974.
Decided May 28, 1974.
Syllabus
Petitioner brought a class action under Fed.Rule Civ.Proc. 23 on behalf of himself and all odd-lot traders on the New York Stock Exchange for a certain four-year period, charging respondent brokerage firms, which handled 99% of the Exchange's odd-lot business, and respondent Exchange with violating the antitrust and securities laws. There followed a series of decisions by the District Court and the Court of Appeals. The District Court ultimately decided that the suit could be maintained as a class action, and, after finding that some two and a quarter million members of the prospective class could be identified by name and address with reasonable effort and that it would cost $225,000 to send individual notice to all of them, proposed a notification scheme providing for individual notice to only a limited number of prospective class members and notice by publication to the remainder. The District Court then held a preliminary hearing on the merits, and after finding that petitioner was 'more than likely' to prevail at trial, ruled that respondents should bear 90% of the costs of the notification scheme. The Court of Appeals reversed and ordered the suit dismissed as a class action, disapproving the District Court's partial reliance on publication notice. The Court of Appeals held that Rule 23(c)(2) required individual notice to all identifiable class members; that the District Court had no authority to hold a preliminary hearing on the merits for the purpose of allocating notice costs; that the entire notice expense should fall on petitioner; and that the proposed class action was unmanageable under Rule 23(b)(3)(D). Petitioner contends that the Court of Appeals had no jurisdiction to review the District Court's orders, and further, that the Court of Appeals decided the above issues incorrectly. Held:
1. The District Court's resolution of the notice problems constituted a 'final' decision within the meaning of 28 U.S.C. § 1291 and was therefore appealable as of right under that section. Pp. 169—172.
(a) Section 1291 does not limit appellate review to 'those final judgments which terminate an action . . .,' but rather the requirement of finality is to be given a 'practical rather than a technical construction.' Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545—546, 69 S.Ct. 1221, 1225—1226, 93 L.Ed. 1528. Pp. 170—172.
(b) The District Court's decision that respondents could lawfully be required to bear the costs of notice involved a collateral matter unrelated to the merits of petitioner's claims and was 'a final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it,' Cohen, supra, at 546—547, 69 S.Ct., at 1225—1226. P. 172.
2. The District Court's resolution of the notice problems failed to comply with the notice requirement of Rule 23(c)(2). Pp. 173—177.
(a) The express language and intent of Rule 23(c)(2) leave no doubt that individual notice must be sent to all class members who can be identified through reasonable effort, Here there was nothing to show that individual notice could not be mailed to each of the two and a quarter million class members whose names and addresses were easily ascertainable, and for these class members individual notice was clearly the 'best notice practicable' within the meaning of Rule 23(c)(2). Pp. 173—175.
(b) The facts that the cost of sending individual notices would be prohibitively high to petitioner, who has only a $70 stake in the matter, or that individual notice might be unnecessary because no prospective class member has a large enough stake to justify separate litigation of his individual claim, do not dispense with the individual-notice requirement, since individual notice to identificable class members is not a discretionary consideration to be waived in a particular case but an unambiguous requirement of Rule 23. Pp. 175—176.
(c) Adequate representation in itself does not satisfy Rule 23(c)(2), since the Rule speaks to notice as well as to adequacy of representation and requires that both be provided. Otherwise no notice at all, published or otherwise, would be required in this case. Pp. 176—177.
3. Petitioner must bear the cost of notice to the members of his class, and it was improper for the District Court to impose part of the cost on respondents. Pp. 177—179.
(a) There is nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action, and, indeed, such a procedure contravenes the Rule by allowing a representative plaintiff to secure the benefits of a class action without first satisfying the requirements of the Rule. Pp. 177—178.
(b) A preliminary determination of the merits may substantially prejudice a defendant, since it is unaccompanied by the traditional rules and procedures applicable to civil trials. P. 178.
(c) Where, as here, the relationship between the parties is truly adversary, the plaintiff must pay for the cost of notice as part of the ordinary burden of financing his own suit. Pp. 178 179.
479 F.2d 1005, vacated and remanded.
Aaron M. Fine, Philadelphia, Pa., for petitioner.
Devereux Milburn and William Eldred Jackson, New York City, for respondents.
Mr. Justice POWELL delivered the opinion of the Court.
1
On May 2, 1966, petitioner filed a class action on behalf of himself and all other odd-lot1 traders on the New York Stock Exchange (the Exchange). The complaint charged respondents with violations of the antitrust and securities laws and demanded damages for petitioner and his class. Eight years have elapsed, but there has been one trial on the merits of these claims. Both the parties and the courts are still wrestling with the complex questions surrounding petitioner's attempt to maintain his suit as a class action under Fed.Rule Civ.Proc. 23. We granted certiorari to resolve some of these difficulties. 414 U.S. 908, 94 S.Ct. 235, 38 L.Ed.2d 146 (1973).
2
* Petitioner brought this class action in the United States District Court for the Southern District of New York. Originally, he sued on behalf of all buyers and sellers of odd lots on the Exchange, but subsequently the class was limited to those who traded in odd lots during the period from May 1, 1962, through June 30, 1966. 52 F.R.D. 253, 261 (1971). Throughout this period odd-lot trading was not part of the Exchange's regular auction market but was handled exclusively by special odd-lot dealers, who bought and sold for their own accounts as principals. Respondent brokerage firms Carlisle & Jacquelin and DeCoppet & Doremus together handled 99% of the Exchange's odd-lot business. S.E.C., Report of Special Study of Securities Markets, H.R.Doc.No. 95, pt. 2, 88th Cong., 1st Sess., 172 (1963). They were compensated by the odd-lot differential, a surcharge imposed on the odd-lot investor in addition to the standard brokerage commission applicable to roundlot transactions. For the period in question the differential was 1/8 of a point (12 1/2¢) per share on stocks trading below $40 per share and 1/4 of a point (25¢) per share on stocks trading at or above $40 per share.2
3
Petitioner charged that respondent brokerage firms had monopolized odd-lot trading and set the differential at an excessive level in violation of §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2, and he demanded treble damages for the amount of the overcharge. Petitioner also demanded unspecified money damages from the Exchange for its alleged failure to regulate the differential for the protection of investors in violation of §§ 6 and 19 of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78f and 78s. Finally, he requested attorneys' fees and injunctive prohibition of future excessive charges.
4
A critical fact in this litigation is that petitioner's individual stake in the damages award he seeks is only $70. No competent attorney would undertake this complex antitrust action to recover so inconsequential an amount. Economic reality dictates that petitioner's suit proceed as a class action or not at all. Opposing counsel have therefore engaged in prolonged combat over the various requirements of Rule 23. The result has been an exceedingly complicated series of decisions by both the District Court and the Court of Appeals for the Second Circuit. To understand the labyrinthian history of this litigation, a preliminary overview of the decisions may prove useful.
5
In the beginning, the District Court determined that petitioner's suit was not maintainable as a class action. On appeal, the Court of Appeals issued two decisions known popularly as Eisen I and Eisen II. The first held that the District Court's decision was a final order and thus appealable. In the second the Court of Appeals intimated that petitioner's suit could satisfy the requirements of Rule 23, but it remanded the case to permit the District Court to consider the matter further. After conducting several evidentiary hearings on remand, the District Court decided that the suit could be maintained as a class action and entered orders intended to fulfill the notice requirements of Rule 23. Once again, the case was appealed. The Court of Appeals then issued its decision in Eisen III and ended the trilogy by denying class action status to petitioner's suit. We now review these developments in more detail.
Eisen I
6
As we have seen, petitioner began this action in May 1966. In September of that year the District Court dismissed the suit as a class action. 41 F.R.D. 147. Following denial of his motion for interlocutory review under 28 U.S.C. § 1292(b), petitioner took an appeal as of right under § 1291. Respondents then moved to dismiss on the ground that the order appealed from was not final. In Eisen I, the Court of Appeals held that the denial of class action status in this case was appealable as a final order under § 1291. 370 F.2d 119 (1966), cert. denied, 386 U.S. 1035, 87 S.Ct. 1487, 18 L.Ed.2d 598 (1967). This was so because, as a practical matter, the dismissal of the class action aspect of petitioner's suit was a 'death knell' for the entire action. The court thought this consequence rendered the order dismissing the class action appealable under Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949).
Eisen II
7
Nearly 18 months later the Court of Appeals reversed the dismissal of the class action in a decision known as Eisen II. 391 F.2d 555 (1968). In reaching this result the court undertook an exhaustive but ultimately inconclusive analysis of Rule 23. Subdivision (a) of the Rule sets forth four prerequisites to the maintenance of any suit as a class action: '(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.' The District Court had experienced little difficulty in finding that petitioner satisfied the first three prerequisites but had concluded that petitioner might not 'fairly and adequately protect the interests of the class' as required by Rule 23(a)(4). The Court of Appeals indicated its disagreement with the reasoning behind the latter conclusion and directed the District Court to reconsider the point.
8
In addition to meeting the four conjunctive requirements of 23(a), a class action must also qualify under one of the three subdivisions of 23(b).3 Petitioner argued that the suit was maintainable as a class action under all three subdivisions. The Court of Appeals held the first two subdivisions inapplicable to this suit4 and therefore turned its attention to the third subdivision, (b)(3). That subdivision requires a court to determine whether 'questions of law or fact common to the members of the class predominate over any questions affecting only individual members' and whether 'a class action is superior to other vailable methods for the fair and efficient adjudication of the controversy.' More specifically, it identifies four factors relevant to these inquiries. After a detailed review of these provisions, the Court of Appeals concluded that the only potential barrier to maintenance of this suit as a class action was the Rule 23(b)(3)(D) directive that a court evaluate 'the difficulties likely to be encountered in the management of a class action.' Commonly referred to as 'manageability,' this consideration encompasses the whole range of practical problems that may render the class action format inappropriate for a particular suit. With reference to this litigation, the Court of Appeals noted that the difficulties of distributing any ultimate recovery to the class members would be formidable, though not necessarily insuperable, and commented that it was 'reluctant to permit actions to proceed where they are not likely to benefit anyone but the lawyers who bring them.' 391 F.2d, at 567. The Court therefore directed the District Court to conduct 'a further inquiry . . . in order to consider the mechanics involved in the administration of the present action.' Ibid.
9
Finally, the Court of Appeals turned to the most imposing obstacle to this class action—the notice requirement of Rule 23(c)(2). The District Court had held that both the Rule and the Due Process Clause of the Fifth Amendment required individual notice to all class members who could be identified. 41 F.R.D., at 151. Petitioner objected that mailed notice to the entire class would be prohibitively expensive and argued that some form of publication notice would suffice. The Court of Appeals declined to settle this issue, noting that '(o)n the record before us we cannot arrive at any rational and satisfactory conclusion on the propriety of resorting to some form of publication as a means of giving the necessary notice to all members of the class on behalf of whom the action is stated to be commenced and maintained.' 391 F.2d, at 569.
10
The outcome of Eisen II was a remand for an evidentiary hearing on the questions of notice, manageability, adequacy of representation, and 'any other matters which the District Court may consider pertinent and proper.' Id., at 570. And in a ruling that aroused later controversy, the Court of Appeals expressly purported to retain appellate jurisdiction while the case was heard on remand.
Eisen III
11
After it held the evidentiary hearing on remand, which together with affidavits and stipulations provided the basis for extensive findings of fact, the District Court issued an opinion and order holding the suit maintainable as a class action. 52 F.R.D. 253 (1971). The court first noted that petitioner satisfied the criteria identified by the Court of Appeals for determining adequacy of representation under Rule 23(a)(4). Then it turned to the more difficult question of manageability. Under this general rubric the court dealt with problems of the computation of damages, the mechanics of administering this suit as a class action, and the distribution of any eventual recovery. The last-named problem had most troubled the Court of Appeals, prompting its remark that if 'class members are not likely ever to share in an eventual judgment, we would probably not permit the class action to continue.' 391 F.2d, at 567. The District Court attempted to resolve this difficulty by embracing the idea of a 'fluid class' recovery whereby damages would be distributed to future odd-lot traders rather than to the specific class members who were actually injured. The court suggested that 'a fund equivalent to the amount of unclaimed damages might be established and the odd-lot differential reduced in an amount determined reasonable by the court until such time as the fund is depleted.' 52 F.R.D., at 265. The need to resort to this expedient of recovery by the 'next best class' arose from the prohibitively high cost of computing and awarding multitudinous small damages claims on an individual basis.
12
Finally, the District Court took up the problem of notice. The court found that the prospective class included some six million individuals, institutions, and intermediaries of various sorts; that with reasonable effort some two million of these odd-lot investors could be identified by name and address;5 and that the names and addresses of an additional 250,000 persons who had participated in special investment programs involving odd-lot trading6 could also be identified with reasonable effort. Using the then current first-class postage rate of six cents, the court determined that stuffing and mailing each individual notice form would cost 10 cents. Thus individual notice to all identifiable class members would cost $225,000,7 and additional expense would be incurred for suitable publication notice designed to reach the other four million class members.
13
The District Court concluded, however, that neither Rule 23(c)(2) nor the Due Process Clause required so substantial an expenditure at the outset of this litigation. Instead, it proposed a notification scheme consisting of four elements: (1) individual notice to all member firms of the Exchange and to commercial banks with large trust departments; (2) individual notice to the approximately 2,000 identifiable class members with 10 or more odd-lot transactions during the relevant period; (3) individual notice to an additional 5,000 class members selected at random; and (4) prominent publication notice in the Wall Street Journal and in other newspapers in New York and California. The court calculated that this package would cost approximately $21,720.
14
The only issue not resolved by the District Court in its first opinion on remand from Eisen II was who should bear the cost of notice. Because petitioner understandably declined to pay $21,720 in order to litigate an action involving an individual stake of only $70, this question presented something of a dilemma:
15
'If the expense of notice is placed upon (petitioner), it would be the end of a possibly meritorious suit, frustrating both the policy behind private antitrust actions and the admonition that the new Rule 23 is to be given a liberal rather than a restrictive interpretation, Eisen II at 563. On the other hand, if costs were arbitrarily placed upon (respondents) at this point, the result might be the imposition of an unfair burden founded upon a groundless claim. In addition to the probability of encouraging frivolous class actions, such a step might also result in (respondents') passing on to their customers, including many of the class members in this case, the expenses of defending these actions.' 52 F.R.D., at 269.
16
Analogizing to the laws of preliminary injunctions, the court decided to impose the notice cost on respondents if petitioner could show a strong likelihood of success on the merits, and it scheduled a preliminary hearing on the merits to facilitate this determination. After this hearing the District Court issued an opinion and order ruling that petitioner was 'more than likely' to prevail at trial and that respondents should bear 90% of the cost of notice, or $19,548. 54 F.R.D. 565, 567 (1972).
17
Relying on the purported retention of jurisdiction by the Court of Appeals after Eisen II, respondents on May 1, 1972, obtained an order directing the clerk of the District Court to certify and transmit the record for appellate review. Subsequently, respondents also filed a notice of appeal under 28 U.S.C. § 1291. Petitioner's motion to dismiss on the ground that the appeal had not been taken from a final order was denied by the Court of Appeals on June 29, 1972.
18
On May 1, 1973, the Court of Appeals issued Eisen III. 479 F.2d 1005. The majority disapproved the District Court's partial reliance on publication notice, holding that Rule 23(c)(2) required individual notice to all identifiable class members. The majority further ruled that the District Court had no authority to conduct a preliminary hearing on the merits for the purpose of allocating costs and that the entire expense of notice necessarily fell on petitioner as representative plaintiff. Finally, the Court of Appeals rejected the expedient of a fluid-class recovery and concluded that the proposed class action was unmanageable under Rule 23(b)(3)(D). For all of these reasons the Court of Appeals ordered the suit dismissed as a class action. One judge concurred in the result solely on the ground that the District Court had erred in imposing 90% of the notice costs on respondents. Petitioner's requests for rehearing and rehearing en banc were denied. 479 F.2d, at 1020.
19
Thus, after six and one-half years and three published decisions, the Court of Appeals endorsed the conclusion reached by the District Court in its original order in 1966—that petitioner's suit could not proceed as a class action. In its procedural history, at least, this litigation has lived up to Judge Lumbard's characterization of it as a 'Frankenstein monster posing as a class action.' Eisen II, 391 F.2d., at 572.
II
20
At the outset we must decide whether the Court of Appeals in Eisen III had jurisdiction to review the District Court's orders permitting the suit to proceed as a class action and allocating the cost of notice. Petitioner contends that it did not. Respondents counter by asserting two independent bases for appellate jurisdiction: first, that the orders in question constituted a 'final' decision within the meaning of 28 U.S.C. § 12918 and were therefore appealable as of right under that section; and, second, that the Court of Appeals in Eisen II expressly retained jurisdiction pending further development of a factual record on remand and that consequently no new jurisdictional basis was required for the decision in Eisen III. Because we agree with the first ground asserted by respondents, we have no occasion to consider the second.
21
Restricting appellate review to 'final decisions' prevents the debilitating effect on judicial administration caused by piecemeal appellate disposition of what is, in practical consequence, but a single controversy. While the application of § 1291 in most cases is plain enough, determining the finality of a particular judicial order may pose a close question. No verbal formula yet devised can explain prior finality decisions with unerring accuracy or provide an utterly reliable guide for the future.9 We know, of course, that § 1291 does not limit appellate review to 'those final judgments which terminate an action . . .,' Cohen v. Beneficial Indus. Loan Corp., 337 U.S., at 545, 69 S.Ct., at 1225, but rather that the requirement of finality is to be given a 'practical rather than a technical construction.' Id., at 546, 69 S.Ct., at 1226. The inquiry requires some evaluation of the competing considerations underlying all questions of finality—'the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other.' Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511, 70 S.Ct. 322, 324, 94 L.Ed. 299 (1950) (footnote omitted).
22
We find the instant case controlled by our decision in Cohen v. Beneficial Indus. Loan Corp., supra. There the Court considered the applicability in a federal diversity action of a forum state statute making the plaintiff in a stockholder's derivative action liable for litigation expenses, if ultimately unsuccessful, and entitling the corporation to demand security in advance for their payment. The trial court ruled the statute inapplicable, and the corporation sought immediate appellate review over the stockholder's objection that the order appealed from was not final. This Court held the order appealable on two grounds. First, the District Court's finding was not 'tentative, informal or incomplete.' 337 U.S., at 546, 69 S.Ct., at 1225, but settled conclusively the corporation's claim that it was entitled by state law to require the shareholder to post security for costs. Second, the decision did not constitute merely a 'step toward final disposition of the merits of the case . . ..' Ibid. Rather, it concerned a collateral matter that could not be reviewed effectively on appeal from the final judgment. The Court summarized its conclusion in this way:
23
'This decision appears to fall in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.' Ibid.
24
Analysis of the instant case reveals that the District Court's order imposing 90% of the notice costs on respondents likewise falls within 'that small class.' It conclusively rejected respondents' contention that they could not lawfully be required to bear the expense of notice to the members of petitioner's proposed class. Moreover, it involved a collateral matter unrelated to the merits of petitioner's claims. Like the order in Cohen, the District Court's judgment on the allocation of notice costs was 'a final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it,' id., at 546—547, 69 S.Ct., at 1226, and it was similarly appealable as a 'final decision' under § 1291. In our view the Court of Appeals therefore had jurisdiction to review fully the District Court's resolution of the class action notice problems in this case, for that court's allocation of 90% of the notice costs to respondents was but one aspect of its effort to construe the requirements of Rule 23(c)(2) in a way that would permit petitioner's suit to proceed as a class action.10
III
25
Turning to the merits of the case, we find that the District Court's resolution of the notice problems was erroneous in two respects. First, it failed to comply with the notice requirements of Rule 23(c)(2), and second, it imposed part of the cost of notice on respondents.
A.
26
Rule 23(c)(2) provides that, in any class action maintained under subdivision (b)(3), each class member shall be advised that he has the right to exclude himself from the action on request or to enter an appearance through counsel, and further that the judgment, whether favorable or not, will bind all class members not requesting exclusion. To this end, the court is required to direct to class members 'the best notice practicable under the circumstances including individual notice to all members who can be identified through reasonable effort.'11 We think the import of this language is unmistakable. Individual notice must be sent to all class members whose names and addresses may be ascertained through reasonable effort.
27
The Advisory Committee's Note to Rule 23 reinforces this conclusion. See 28 U.S.C. App., p. 7765. The Advisory Committee described subdivision (c)(2) as 'not merely discretionary' and added that the 'mandatory notice pursuant to subdivision (c)(2) . . . is designed to fulfill requirements of due process to which the class action procedure is of course subject.' Id., at 7768. The Committee explicated its incorporation of due process standards by citation to Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), and like cases.
28
In Mullane the Court addressed the constitutional sufficiency of publication notice rather than mailed individual notice to known beneficiaries of a common trust fund as part of a judicial settlement of accounts. The Court observed that notice and an opportunity to be heard were fundamental requisites of the constitutional guarantee of procedural due process. It further stated that notice must be 'reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.' Id., at 314, 70 S.Ct., at 657. The Court continued:
29
'But when notice is a person's due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected.' Id., at 315, 70 S.Ct., at 657.
30
The Court then held that publication notice could not satisfy due process where the names and addresses of the beneficiaries were known.12 In such cases, 'the reasons disappear for resort to means less likely than the mails to apprise them of (an action's) pendency.' Id., at 318, 70 S.Ct., at 659.
31
In Schroeder v. City of New York, 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d 255 (1962), decided prior to the promulgation of amended Rule 23, the Court explained that Mullane required rejection of notice of publication where the name and address of the affected person were available. The Court stated that the 'general rule' is that 'notice by publication is not enough with respect to a person whose name and address are known or very easily ascertainable . . .' Id., at 212—213, 83 S.Ct., at 282. The Court also noted that notice by publication had long been recognized as a poor substitute for actual notice and that its justification was "difficult at best." Id., at 213, 83 S.Ct., at 283.
32
Viewed in this context, the express language and intent of Rule 23(c)(2) leave no doubt that individual notice must be provided to those class members who are identifiable through reasonable effort. In the present case, the names and addresses of 2,250,000 class members are easily ascertainable, and there is nothing to show that individual notice cannot be mailed to each. For these class members, individual notice is clearly the 'best notice practicable' within the meaning of Rule 23(c)(2) and our prior decisions.
33
Petitioner contends, however, that we should dispense with the requirement of individual notice in this case, and he advances two reasons for our doing so. First, the prohibitively high cost of providing individual notice to 2,250,000 class members would end this suit as a class action and effectively frustrate petitioner's attempt to vindicate the policies underlying the antitrust and securities laws. Second petitioner contends that individual notice is unnecessary in this case, because no prospective class member has a large enough stake in the matter to justify separate litigation of his individual claim. Hence, class members lack any incentive to opt out of the class action even if notified.
34
The short answer to these arguments is that individual notice to identifiable class members is not a discretionary consideration to be waived in a particular case. It is, rather, an unambiguous requirement of Rule 23. As the Advisory Committee's Note explained, the Rule was intended to insure that the judgment, whether favorable or not, would bind all class members who did not request exclusion from the suit, 28 U.S.C. App., pp. 7765, 7768. Accordingly, each class member who can be identified through reasonable effort must be notified that he may request exclusion from the action and thereby preserve his opportunity to press his claim separately or that he may remain in the class and perhaps participate in the management of the action. There is nothing in Rule 23 to suggest that the notice requirements can be tailored to fit the pocketbooks of particular plaintiffs.13
35
Petitioner further contends that adequate representation, rather than notice, is the touchstone of due process in a class action and therefore satisfies Rule 23. We think this view has little to commend it. To begin with, Rule 23 speaks to notice as well as to adequacy of representation and requires that both be provided. Moreover, petitioner's argument proves too much, for it quickly leads to the conclusion that no notice at all, published or otherwise, would be required in the present case. This cannot be so, for quite apart from what due process may require, the command of Rule 23 is clearly to the contrary. We therefore conclude that Rule 23(c)(2) requires that individual notice be sent to all class members who can be identified with reasonable effort.14
B
36
We also agree with the Court of Appeals that petitioner must bear the cost of notice to the members of his class. The District Court reached the contrary conclusion and imposed 90% of the notice cost on respondents. This decision was predicated on the court's finding, made after a preliminary hearing on the merits of the case, that petitioner was 'more than likely' to prevail on his claims. Apparently, that court interpreted Rule 23 to authorize such a hearing as part of the determination whether a suit may be maintained as a class action. We disagree.
37
We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action. Indeed, such a procedure contravenes the Rule by allowing a representative plaintiff to secure the benefits of a class action without first satisfying the requirements for it. He is thereby allowed to obtain a determination on the merits of the claims advanced on behalf of the class without any assurance that a class action may be maintained. This procedure is directly contrary to the command of subdivision (c)(1) that the court determine whether a suit denominated a class action may be maintained as such '(a)s soon as practicable after the commencement of (the) action . . ..' In short, we agree with Judge Wisdom's conclusion in Miller v. Mackey International, 452 F.2d 424 (CA5 1971), where the court rejected a preliminary inquiry into the merits of a proposed class action:
38
'In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.' Id., at 427.
39
Additionally, we might note that a preliminary determination of the merits may result in substantial prejudice to a defendant, since of necessity it is not accompanied by the traditional rules and procedures applicable to civil trials. The court's tentative findings, made in the absence of established safeguards, may color the subsequent proceedings and place an unfair burden on the defendant.
40
In the absence of any support under Rule 23, petitioner's effort to impose the cost of notice on respondents must fail. The usual rule is that a plaintiff must initially bear the cost of notice to the class. The exceptions cited by the District Court related to situations where a fiduciary duty pre-existed between the plaintiff and defendant, as in a shareholder derivative suit.15 Where, as here, the relationship between the parties is truly adversary, the plaintiff must pay for the cost of notice as part of the ordinary burden of financing his own suit.
41
Petitioner has consistently maintained, however, that he will not bear the cost of notice under subdivision (c)(2) to members of the class as defined in his original complaint. See 479 F.2d, at 1008; 52 F.R.D., at 269. We therefore remand the cause with instructions to dismiss the class action as so defined.16
42
The judgment of the Court of Appeals is vacated and the cause remanded for proceedings consistent with this opinion.
43
It is so ordered.
44
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL, concur, dissenting in part.
45
While I am in general agreement with the phases of this case touched on by the Court, I add a few words because its opinion does not fully explore the issues which will be dispositive of this case on remand to the District Court.
46
Federal Rule Civ.Proc. 23(c)(4) provides: 'When appropriate (A) an action may be brought or maintained as a class action with respect to particular issues, or (B) a class may be divided into subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly.' As Judge Oakes, speaking for himself and Judge Timbers, said below:
47
'The plaintiff class might, for example, be divided into much smaller subclasses . . . of odd lot buyers for particular periods, and one subclass treated as a test case, with the other subclasses held in abeyance. Individual notice at what would probably be a reasonable cost could then be given to all members of the particular small subclass who can be easily identified.' 479 F.2d 1005, 1023 (dissenting from denial of rehearing en banc).
48
Or a subclass might include those on monthly investment plans, or payroll deduction plans run by brokerage houses.1 The possibilities, though not infinite, are numerous.
49
The power to create a subclass is clear and unambiguous. Who should be included and how large it should be are questions that only the District Court should resolve. Notice to each member of the subclass would be essential under Rule 23(c)(2); and under Rule 23(c)(2)(A) any notified member may opt out. There would remain the question whether the subclass suit is manageable. But since the subclass could be chosen in light of the nonmanageability of the size of the class whose claims are presently before us, there is no apparent difficulty in that sense.
50
The statute of limitations, it is argued, has run or is about to run on many of these classes. We held in American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713, that the start of a class action prior to the running of the statute protects all members of the class. Whether that rule should obtain for the benefit of other members who could have been included in the subclass bringing suit, but for the manageability issue, is a question we have not decided.2 Moreover, if the subclass sues and wins or sues and loses, questions covering the rights of members of the larger class who are not parties would be raised. These are questions we have not answered.3 But the fact that unresolved questions of law would remain is not an insurmountable obstacle, and Rule 23(c)(4)(B) expressly authorizes subclasses to sue in lieu of a full class. Rule 23(c)(4)(B) may have had, as a forerunner, the proposal stated by Judge Weinstein in 1960:
51
'When there is a question of law or fact common to persons of a numerous class whose joinder is impracticable, one or more of them whose claims or defenses are representative of the claims or defenses of all and who will fairly and adequately protect the interests of all may sue or be sued on behalf of all.'4
In explanation he added:
52
'Such a rule would provide six requirements for a class action: (1) a class, (2) numerous members, (3) common question of law or fact, (4) impracticability of joinder, (5) representative claim or defense, (6) fair and adequate protection of absentees.
53
'Almost any 'bond of association' in an event or status out of which a legal dispute arose is sufficient to constitute a class. The class must be numerous but need not be so large that, in itself, this factor makes it impracticable to bring them all before the court. A number of members sufficient to satisfy present Section 195 (of the New York Civil Practice Act) would satisfy the proposed rule. Size, modesty of monetary interest, inability to locate members and difficulty of obtaining jurisdiction should all be considered in determining impracticability of joinder.'5
54
The Court permits Eisen to redefine his class either by amending his complaint pursuant to Fed.Rule Civ.Proc. 15, or by proceeding under Rule 23(c)(4). While Eisen may of course proceed by amending his complaint to define a subclass, it is clear that he need not do so.6 Definition of the subclass would properly be accomplished by order of the District Court, as permitted by Rules 23(c)(4) and 23(c)(1), without amendment of the complaint as filed. While the complaint alleges that Eisen sues on his behalf and on behalf of all purchasers and sellers of odd lots, it adds, 'Plaintiff will fairly insure the adequate representation of all such persons.' Problems of manageability covered by Rule 23(b)(3)(D) arise only after issues are joined and the District Court is engaged in shaping up the litigation for a trial on the merits. If it finds that a subclass would be more appropriate, no new action need be started nor any amended complaint filed.
55
Rule 23(c)(1) provides: 'As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits.'
56
It is as plain as words can make it that the court which decides that a full class action can be maintained can alter or amended its order 'before the decision on the merits.' One permissible way in which the court's order may be changed is to have it 'altered' as provided in Rule 23(c)(1) by reducing the larger class to a subclass as provided in the same subsection—Rule 23(c)(4) (B). The prerequisites of a class cause of action are described in Rule 23(a). In the instant case that hurdle has been passed and we are at the stage of notice requirements and manageability. Not an iota of change is made in the cause of action by restricting it to a subclass.
57
The purpose of Rule 23 is to provide flexibility in the management of class actions, with the trial court taking an active role in the conduct of the litigation. See Dolgow v. Anderson, 43 F.R.D. 472, 481—482 (EDNY); Green v. Wolf Corp., 406 F.2d 291, 298 (CA2), cert. denied, 395 U.S. 977, 89 S.Ct. 2131, 23 L.Ed.2d 766. Lower federal courts have recognized their discretion to define those subclasses proper to prosecute an action without being bound by the plaintiff's complaint. See, e.g., Dolgow v. Anderson, supra, 43 F.R.D. at 491 493; Philadelphia Elec. Co. v. Anaconda American Brass Co., 43 F.R.D. 452, 462—463 (ED Pa.). See generally 7A C. Wright & A. Miller, Federal Practice and Procedure § 1790, p. 187; 3B J. Moore, Federal Practice 23.65. And, as Rule 23(c)(1) clearly indicates, the courts retain both the power and the duty to realign classes during the conduct of an action when appropriate. See, e.g., Carr v. Conoco Plastics, Inc., 423 F.2d 57, 58 (CA5), cert. denied, 400 U.S. 951, 91 S.Ct. 241, 27 L.Ed.2d 257; Johnson v. ITT—Thompson Industries, Inc., 323 F.Supp. 1258, 1262 (ND Miss.); Ostapowicz v. Johnson Bronze Co., 54 F.R.D. 465, 466 (WD Pa.); Baxter v. Savannah Sugar Refining Corp., 46 F.R.D. 56, 60 (SD Ga.). That discretion can be fully retained only if the full-class complaint is preserved when a subclass is defined to prosecute the action. The bounds of the subclass can then be narrowed or widened by order of the District Court as provided in Rule 23(c)(1), without need to amend the complaint and without the constraints which might exist if the complaint had earlier been amended pursuant to Rule 15 to include only the subclass.
58
I agree with Professor Chafee that a class action serves not only the convenience of the parties but also prompt, efficient judicial administration.7 I think in our society that is growing in complexity there are bound to be innumerable people in common disasters, calamities, or ventures who would go begging for justice without the class action but who could with all regard to due process be protected by it. Some of these are consumers whose claims may seem de minimis but who alone have no practical recourse for either remuneration or injunctive relief. Some may be environmentalists who have no photographic development plant about to be ruined because of air pollution by radiation but who suffer perceptibly by smoke, noxious gases, or radiation. Or the unnamed individual may be only a ratepayer being excessively charged by a utility or a homeowner whose assessment is slowly rising beyond his ability to pay.
59
The class action is one of the few legal remedies the small claimant has against those who command the status quo.8 I would strengthen his hand with the view of creating a system of law that dispenses justice to the lowly as well as to those liberally endowed with power and wealth.
1
Odd lots are shares traded in lots of fewer than a hundred. Shares traded in units of a hundred or multiples thereof are round-lots.
2
On July 1, 1966, the $40 'breakpoint' was raised to $55.
3
'(b) Class Actions Maintainable.
'An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
'(1) the prosecution of separate actions by or against individual members of the class would create a risk of
'(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
'(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
'(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
'(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.'
4
Before the Court of Appeals, petitioner dropped the contention that the suit qualified under subdivision (b)(1)(B). The court held subdivision (b)(1) (A) inapplicable on the ground that the prospective class consisted entirely of small claimants, none of whom could afford to litigate this action in order to recover his individual claim and that consequently there was little chance of 'inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class . . ..' Subdivision (b)(2) was held to apply only to actions exclusively or predominantly for injunctive or declaratory relief. Advisory Committee's Note, Proposed Rules of Civil Procedure, 28 U.S.C. App., p. 7766.
5
These two million traders dealt with brokerage firms who transmitted their odd-lot transactions to respondents Carlisle & Jacquelin and DeCoppet & Doremus via teletype. By comparing the odd-lot firms' computerized records of these teletype transactions and the general-services brokerage firms' computerized records of all customer names and addresses, the names and addresses of these two million odd-lot traders can be obtained.
6
In the period from May 1962 through June 1968, 100,000 individuals had odd lot transactions through participation in the Monthly Investment Plan operated by the Exchange and 150,000 persons traded in odd-lots through participation in a number of payroll deduction plans operated by Merrill Lynch, Pierce, Fenner & Smith.
7
Adjusting this figure to reflect the subsequent 4 increase in first-class postage would yield a figure of $315,000.
8
Section 1291 provides:
'The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, except where a direct review may be had in the Supreme Court.'
9
As long ago as 1892 the Court complained: 'Probably no question of equity practice has been the subject of more frequent discussion in this court than the finality of decrees. . . . The cases, it must be conceded, are not altogether harmonious.' McGourkey v. Toledo & Ohio C.R. Co., 146 U.S. 536, 544—545, 13 S.Ct. 170, 172, 36 L.Ed. 1079. In the intervening years the difficulty of resolving such questions has not abated. As Mr. Justice Black commented in Gillespie v. U.S. Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 311, 13 L.Ed.2d 199 (1964), 'whether a ruling is 'final' within the meaning of § 1291 is frequently so close a question that decision of that issue either way can be supported with equally forceful arguments, and . . . it is impossible to devise a formula to resolve all marginal cases coming within what might well be called the 'twilight zone' of finality.'
10
As explained in Part III of this opinion, we find the notice requirements of Rule 23 to be dispositive of petitoner's attempt to maintain the class action as presently defined. We therefore have no occasion to consider whether the Court of Appeals correctly resolved the issues of manageability and fluid-class recovery, or indeed, whether those issues were properly before the Court of Appeals under the theory of retained jurisdiction.
11
Emphasis added. Subdivision (c)(2) provides in full:
'(2) In any class action maintained under subdivision (b)(3), the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that (A) the court will exclude him from the class if he so requests by a specified date; (B) the judgment, whether favorable or not, will include all members who do not request exclusion; and (C) any member who does not request exclusion may, if he desires, enter an appearance through his counsel.'
12
The Court's discussion of the inadequacies of published notice bears attention:
'It would be idle to pretend that publication alone, as prescribed here, is a reliabe means of acquainting interested parties of the fact that their rights are before the courts. . . . Chance alone brings to the attention of even a local resident an advertisement in small type inserted in the back pages of a newspaper, and if he makes his home outside the area of the newspaper's normal circulation the odds that the information will never reach him are large indeed. The chance of actual notice is further reduced when, as here, the notice required does not even name those whose attention it is supposed to attract, and does not inform acquaintances who might call it to attention.' 339 U.S., at 315, 70 S.Ct., at 658.
13
Petitioner also argues that class members will not opt out because the statute of limitations has long since run out on the claims of all class members other than petitioner. This contention is disposed of by our recent decision in American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), which established that commencement of a class action tolls the applicable statute of limitations as to all members of the class.
14
We are concerned here only with the notice requirements of subdivision (c)(2), which are applicable to class actions maintained under subdivision (b) (3). By its terms subdivision (c)(2) is inapplicable to class actions for injunctive or declaratory relief maintained under subdivision (b)(2). Petitioner's effort to qualify his suit as a class action under subdivisions (b)(1) and (b)(2) was rejected by the Court of Appeals. See n. 4, supra.
15
See, e.g., Dolgow v. Anderson, 43 F.R.D. 472, 498—500 (EDNY 1968). We, of course, express no opinion on the proper allocation of the cost of notice in such cases.
16
The record does not reveal whether a smaller class of odd-lot traders could be defined, and if so, whether petitioner would be willing to pay the cost of notice to members of such a class. We intimate no view on whether any such subclass would satisfy the requirements of Rule 23. We do note, however, that our dismissal of the class action as originally defined is without prejudice to any efforts petitioner may make to redefine his class either under Rule 23(c)(4) or Fed.Rule Civ.Proc. 15.
1
The parties and courts below concentrated on whether a class action could be sustained on behalf of all six million odd-lot investors, so that the record is limited in information bearing on what manageable subclasses could be created.
There is, nonetheless, indication that certain subclasses might be economically manageable. Counsel for respondent Carlisle & Jacquelin stated in oral argument before the Court of Appeals that 100,000 shareholders participate in his client's Monthly Investment Plan, and that Carlisle & Jacquelin corresponds with those investors, Merrill Lynch corresponds with 150,000 people participating in a payroll deduction investment plan. Whether Eisen or any other plaintiff who may come forward to intervene fits in such a subclass, we do not know. But if brokerage houses correspond regularly in the course of business with such odd-lot investors, the marginal cost of providing the individual notice required by Rule 23(c)(2) might be nothing more than printing and stuffing an additional sheet of paper in correspondence already being sent to the investor, or perhaps only programing a computer to type an additional paragraph at the bottom of monthly or quarterly statements regularly mailed by the brokers.
A subclass of those who had engaged in numerous transactions might also be defined, so that the recovery per class member might be large enough to justify the cost of notice and management of the action. A survey of only four of 14 wire firms revealed 2,000 customers with 10 or more transactions between 1962 and 1966. 52 F.R.D. 253, 259, 267, and n. 10.
By defining more definite subclasses such as those discussed, moreover, the problems inherent in distributing an eventual judgment would be reduced. Class members would be more readily identifiable, with more readily accessible transaction records and individually provable damages.
2
In this case, the entire class was defined in the original complaint, and the defendants were put on notice within the period of limitation of their potential liability, serving the purpose of the statute of limitations even if the substantive merits were eventually to be prosecuted in the form of a subclass action with the class action held in abeyance. 'Within the period set by the statute of limitations, the defendants have the essential information necessary to determine both the subject matter and size of the prospective litigation, whether the actual trial is conducted in the form of a class action, as a joint suit, or as a principal suit with additional intervenors.' American Pipe & Construction Co. v. Utah, 414 U.S. 538, 555, 94 S.Ct. 756, 767, 38 L.Ed.2d 713. And see Wheaton, Representative Suits Involving Numerous Litigants, 19 Cornell L.Q. 399, 423 (1934).
3
If the subclass lost, it is argued that other investors not members of that subclass could not be precluded from prosecuting successful suits of their own, since they had never had their day in court or necessarily even been apprised of the subclass' action. See Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22; F. James, Civil Procedure § 11.26 (1965); 1B J. Moore, Federal Practice 0.411(1) (1974). If the subclass won, strict application of the doctrine of mutuality of estoppel would limit the usefulness of that subclass victory in suits brought by investors not members of that subclass. See generally F. James, supra, § 11.31; 1B J. Moore, supra, 0.412(1) (and Supp.1973); and cases cited therein. And see Vestal, Preclusion/Res Judicata Variables; Parties, 50 Iowa L.Rev. 27, 55—59 (1964); Note, 35 Geo.Wash.L.Rev. 1010 (1967); Currie, Mutuality of Collateral Estoppel: Limits of the Bernhard Doctrine, 9 Stan.L.Rev. 281 (1957).
4
Weinstein, Revision of Procedure: Some Problems in Class Actions, 9 Buffalso L.Rev. 433, 458.
5
Id., at 458—459 (footnotes omitted).
6
Were Eisen to be remitted to an individual action, as he would be if he refused to pay the cost of notice even to a subclass, amendment of the complaint might be called for by the District Court. Under Rule 23(d)(4), the District Court may in some instances require that pleadings be amended to eliminate class allegations. The Advisory Committee Notes indicate that this provision is to be applied only when a suit must proceed as a nonclass, individual action, not when, as here, an appropriate class exists and the action must be prosecuted in the first instance by a subclass only because of problems of manageability. See 28 U.S.C. App., p. 7767.
7
Z. Chafee, Some Problems of Equity 149 (1950).
8
Judge Weinstein writing in the N.Y. Law Journal, May 2, 1972, p. 4, col. 3, said:
'Where, however, public authorities are remiss in performance of this responsibility for reason of inadequate legal authority, excessive workloads or simple indifference, class actions may provide a necessary temporary measure until desirable corrections have occurred. The existence of class action litigation may also play a substantial role in bringing about more efficient administrative enforcement and in inducing legislative action.
'The matter touches on the issue of the credibility of our judicial system. Either we are committed to make reasonable efforts to provide a forum for adjudication of disputes involving all our citizens—including those deprived of human rights, consumers who overpay for products because of antitrust violations and investors who are victimized by insider trading or misleading information—or we are not. There are those who will not ignore the irony of courts ready to imprison a man who steals some goods in interstate commerce while unwilling to grant a civil remedy against the corporation which has benefited, to the extent of many millions of dollars, from collusive, illegal pricing of its goods to the public.
'When the organization of a modern society, such as ours, affords the possibility of illegal behavior accompanied by widespread, diffuse consequences, some procedural means must exist to remedy—or at least to deter—that conduct.'
| 89
|
40 L.Ed.2d 717
94 S.Ct. 2129
417 U.S. 134
COMMISSIONER OF INTERNAL REVENUE, Petitioner,v.NATIONAL ALFALFA DEHYDRATING AND MILLING COMPANY.
No. 73—9.
Argued Jan. 14, 1974.
Decided May 28, 1974.
Syllabus
Respondent corporate taxpayer, pursuant to a recapitalization plan, issued $50 face value 5% sinking fund debentures in exchange for its outstanding unlisted $50 par 5% cumulative preferred shares, which at the time were quoted at approximately $33 per share on the over-the-counter market. Based on the exchange, respondent claimed on its income tax returns for several years deductions for debt discount under § 163(a) of the Internal Revenue Code of 1954, which allows deductions for interest paid on indebtedness. Respondent asserted that the debt discount, measured by the difference between a claimed $33 per share value for the preferred, and the face amount of the debentures, amortized over the life of the debentures, constituted deductible interest within the purview of that provision. The Commissioner disallowed the deductions, and was upheld by the Tax Court, but the Court of Appeals reversed. Held: Respondent did not incur amortizable debt discount upon the issuance of its debentures in exchange for its outstanding preferred stock. Pp. 142—155.
(a) In determining whether debt discount arises in the situation presented here, the relevant inquiry must be whether the corporate taxpayer has incurred, as a result of the transaction, some cost or expense of acquirng the use of capital. P. 147.
(b) The propriety of a deduction does not turn upon general equitable considerations, such as a demonstration of effective economic and practical equivalence to what actually occurred, but rather 'depends upon legislative grace; and only as there is clear provision therefore can any particular deduction be allowed.' New Colonial Co. v. Helvering, 292 U.S. 435, 440, 54 S.Ct. 788, 790, 78 L.Ed. 1348. Pp. 147—149.
(c) This Court will not speculate as to what the market price and the investor reaction to any sales of the debentures or purchases of the preferred by respondent in the open market would have been, since there is nothing in the record to establish the cash price at which the debentures could have been sold upon the market or to indicate that respondent would have been able to purchase all its outstanding preferred on the open market, or at what price that stock would have been purchased in light of the impending exchange; moreover, when a corporation issues to its preferred shareholders its own new debt obligations in exchange for the outstanding preferred, the claimed fair market value of both securities is somewhat artificial since the exchange is effectively insulated from market forces. Pp. 149—151.
(d) Absent any evidence that the difference between the claimed $33 per share of the preferred and the face amount of the debentures is attributable to debt discount or that the discount rate was determined by such factors as respondent's financial condition at the time of the exchange and the availability and cost of capital in the general market as well as from the preferred shareholders, rather than simply having been predicated on the preferred's par value, the requisite evaluation of the property to be exchanged cannot occur and debt discount cannot be determined. P. 151.
(e) The alternation in the form of the retained capital did not give rise to any cost of borrowing to respondent, since the cost of the capital invested in respondent was the same whether represented by the preferred or by the debentures, and was totally unaffected by the market value of the preferred received in exchange. Pp. 151—155.
10 Cir. 472 F.2d 796, reversed.
Stuart A. Smith, Washington, D.C., for petitioner.
Charles White Hess, Kansas City, Mo., for respondent.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
A corporate taxpayer in 1957 issued $50 face value 5% sinking fund debentures in exchange for its oustanding $50 par 5% cumulative preferred shares. At the time, the preferred apparently had a fair market value of less than $50 per share. This case presents the question whether, under § 163(a) of the Internal Revenue Code of 1954, 26 U.S.C. § 163(a),1 the taxpayer is entitled to an income tax deduction for amortizable debt discount claimed to be the difference between the face amount of the debentures and the preferred's value at the time of the exchange.
2
* The facts are stipulated. The respondent, National Alfalfa Dehydrating and Milling Company (hereinafter called 'NAD' or the 'taxpayer'), is a Delaware corporation organized in May 1946. It has its principal office at Shawnee Mission, Kansas. It is engaged in the business of dehydrating and milling alfalfa.
3
At its organization, NAD was authorized to issue $50 par cumulative preferred shares and $1 par common shares. The preferred was entitled to preferential dividends at the rate of 5% per annum and was redeemable, in whole or in part, at the discretion of the board of directors or through the operation of a sinking fund, at a stated, variable price which, in 1957, was $51 per share plus accrued dividends. The sinking fund provision required that 20% of net earnings (after the payment of the preferred's dividends) was to be set aside and employed for the redemption of preferred. Any shares so redeemed were to be retired and could not be reissued. If there was a dividend arrearage, the preferred could not be purchased, redeemed, or otherwise acquired for value by the corporation unless the holders of 50% of the preferred shares consented, or unless NAD notified all preferred shareholders of its desire to purchase and invited tender offers. Upon voluntary liquidation, the preferred was entitled to $50 per share plus accrued dividends before any distribution was made to holders of the common shares.
4
Prior to July 23, 1957, NAD had outstanding common shares and 47,059 preferred shares on which there were dividend arrearages of $10 per share. The preferred outstanding thus had an aggregate par value of $2,352,950 as of that date.
5
On April 8, 1957, NAD's board of directors adopted resolutions2 'to effectuate a reorganization of the Company by way of recapitalization.' App. 56. The plan proposed by the board had three steps: (1) an amendment of NAD's articles of incorporation to eliminate the preferred as of August 1, 1957, to increase the par value of the common from $1 to $3 and the number of shares of common authorized from 763,000 to 1,000,000, and to authorize the issue of warrants for the purchase of common shares; (2) the indentured issuance of $2,352,950 principal amount of 18-year 5% sinking fund debentures due July 1, 1975, with one $50 debenture to be exchanged for each share of outstanding $50 preferred; and (3) the issuance, to the holder of each share of preferred, of a warrant to purchase one-half share of common at $10 per share in lieu of the $10 dividend arrearage. The members of the board would have testified that the 'principal business purpose behind the 1957 exchange of debentures for the preferred stock was to enable National Alfalfa to expand its eastern producing areas.' Id., at 25.
6
After the board had taken this action, NAD and Fidelity-Philadelphia Trust Company, as trustee, executed a trust indenture dated July 1, 1957, pursuant to which the aforementioned debentures were to be issued in exchange for NAD's outstanding preferred.3
7
Fidelity-Philadelphia Trust Company, on behalf of NAD, requested a ruling from the United States Treasury Department as to the federal income tax consequences of the plan. A responsive letter-ruling over the signature of the Chief, Reorganization and Dividend Branch, was forthcoming on May 29, 1957. The request had sought a ruling that all aspects of the plan would be tax free. The ruling, however, was to the effect that the exchange of the $1 par common for $3 per common 'will constitute a recapitalization and, therefore, a reorganization, within the meaning of section 368(a)(1)(E), of the Internal Revenue Code of 1954,' 26 U.S.C. § 368(a)(1)(E), and that, as a result thereof, under § 354(a) of the Code, 26 U.S.C. § 354(a), no gain or loss would be recognized on that exchange by NAD or by its common shareholders. App. 20. The ruling went on to state, 'Assuming but not determining that the 5% debenture bonds to be issued qualify as securities (create a genuine relationship of debtor and creditor), gain or loss will be recognized to the preferred stockholders (under § 302(a) of the Code, 26 U.S.C. § 302(a)) from the exchange' of the preferred and the dividend arrearage for the debentures and warrants. The gain or loss so to be recognized would be 'measured by the difference between the cost or other adjusted basis of the preferred stock surrendered and the fair market values of the debentures and warrants received.' App. 20—21.
8
Shareholder approval of the plan proposed by the board was forthcoming in due course. Accordingly, NAD's articles were amended; on July 23, 1957, the holder of each share of preferred received, in exchange therefor, a $50 face value 5% debenture due July 1, 1975, and a warrant to subscribe to a half share of common at $10 per share in lieu of the dividend arrearage; and the preferred was eliminated and canceled as of August 1. This was reflected on NAD's books by a debit to the preferred stock account for $2,352,950, thereby eliminating that account, and by a credit to the liability account for the 18-year 5% debentures in the aggregate amount of $2,352,950.
9
NAD's preferred shares were not listed. During the period from July 15—30, 1957, the bid quotation for the preferred on the over-the-counter market ranged from a low of 29 to a high of 33, and the offering quotation ranged from a low of 32 to a high of 35. App. 161.4 On July 23, when the exchange was effected, the midpoint between the bid and offering quotations on the over-the-counter market was 33. The National Stock Summary for October 1, 1957, showed 100 shares of NAD preferred wanted on July 9 at 32 and on July 10 at 33, and 100 shares offered on July 10 at 35. Id., at 167. It showed no quotations for the warrants in July and only nominal figure want quotations for them on four dates in August. Id., at 168.
10
On each of its federal income tax returns for the fiscal years ended April 30, 1958, to 1967, inclusive, NAD claimed a deduction under § 163(a) for what it regarded as interest, by reason of debt discount, measured by the difference between $33 per share for the preferred on July 23, 1957, and the face amount of the debentures. This difference amounted to $800,003 ($2,352,950 for the debentures, less $1,552,947 for the preferred). The $800,003 was then amortized on a straight-line basis over the 18-year life of the debentures, with an addition each year for the unamortized discount on any debentures currently repurchased or redeemed. See Rev.Rul. 70—353, 1970—2 Cum.Bull. 39. The deductions claimed are set forth in the margin;5 those of the earlier years were reflected in losses carried over to fiscal 1967.
11
Upon audit of NAD's return for fiscal 1967, the Commissioner of Internal Revenue disallowed the debt discount of $109,804 claimed for that year and $321,657 in loss carryovers from prior taxable years that were due to debt-discount deductions asserted in those years. This resulted in a substantial deficiency in NAD's 1967 corporate income tax.
12
On petition for redetermination, the Tax Court, by a unanimous reviewed opinion, upheld the Commissioner. 57 T.C. 46 (1971). Adopting the reasoning of the Court of Claims in Erie Lackawanna R. Co. v. United States, 422 F.2d 425, 190 Ct.Cl. 682 (1970), and in Missouri Pacific R. Co. v. United States, 427 F.2d 727, 192 Ct.Cl. 318, modified on rehearing, 193 Ct.Cl. 257, 433 F.2d 1324 (1970), cert. denied, 402 U.S. 944, 91 S.Ct. 1618, 29 L.Ed.2d 112 (1971), the Tax Court held that when a corporation issues obligations in exchange for its outstanding preferred, no discount arises if the amount that had been received upon the issuance of the preferred was equal to the face amount of the obligations issued upon the exchange. The market value of the preferred at the time of the exchange, therefore, would be of no relevance.
13
On appeal, the United States Court of Appeals for the Tenth Circuit, by a divided vote, reversed. 472 F.2d 796 (1973). Relying upon American Smelting & Refining Co. v. United States, 130 F.2d 883 (C.A.3 1942), and Atchison, T. & S.F.R. Co. v. United States, 443 F.2d 147 (C.A.10 1971), the court held that the difference between the value of the preferred and the face amount of the debentures at the time of the exchange represented a discount or expense of borrowing, and qualified as an interest deduction to be properly amortized over the life of the debentures. We granted certiorari to resolve the indicated conflict. 414 U.S. 817, 94 S.Ct. 152, 38 L.Ed.2d 49 (1973).
II
14
The situation with which we are here concerned, therefore, is one where a taxpayer corporation issued debt obligations, namely, debentures, in exchange for its own outstanding preferred shares. It is not one where the taxpayer issued debt obligations in exchange for cash in an amount less than the obligations' face amount, or in exchange for property other than its own stock.
15
Section 163(a), which is set forth in n. 1, supra, is the statute NAD seeks to invoke in order to have the benefit of a deduction for what it claims is amortizable debt discount. The statute relates simply to 'all interest paid or accrued within the taxable year on indebtedness.' NAD's debentures obviously represented debt, and the stated 5% interest due semiannually on those debentures just as obviously would qualify as a deduction from gross income for NAD under § 163(a). The issue here, however, is whether NAD is also entitled, in addition to the deduction for the stated interest, to a further deduction, as 'interest paid or accrued,' for an appropriately amortized portion of the claimed $17 difference between the face amount of each $50 debenture and the value of each share of preferred on July 23, 1957.
16
Original-issue discount typically arises where an issuer sells its debt obligation on the market for cash at a price less than the face amount of the obligation. The difference, obviously, is the discount. A simple example is where a corporation issues its 6% $1,000 10-year bond for $950 cash. The corporation is obliged to pay and the bondholder is entitled to receive, the stated annual interest of 6%, or $60. That amount is deductible by the corporation and is includable in the payee's gross income as interest received. But the $50 difference between the face amount of the obligation and the issue price is an additional cost to the issuing corporation for the use of the money it is borrowing. That cost spread over the 10-year life of the bond amounts to $5 per year. Accepted accounting practice treats this discount as interest under § 163(a).6
17
The Internal Revenue Code of 1939 and its predecessors did not provide expolicitly for amortization and deduction of debt discount. The successive regulations, however, beginning with Art. 150 of Treasury Regulations 33 (revised 1918), issued under the Revenue Act of 1916, have provided for such amortization and deduction by the issuer.7
18
The first statutory recognition of bond discount appeared in § 1232(b)(1) of the 1954 Code. That section provides:
'For purposes of subsection (a), the term 'original issue discount' means the difference between the issue price and the stated redemption price at maturity. . . .'
19
Section 1232(b)(2) defines 'issue price' in some detail.8
20
This Court has recognized debt discount as an additional cost incurred in borrowing money. In Helvering v. Union Pacific R. Co., 293 U.S. 282, 55 S.Ct. 165, 79 L.Ed. 363 (1934), is considering Art. 150 of Regulations 33 (revised 1918), which described bond discount as a 'loss' to be 'prorated over the life of the bonds sold,' the Court referred to discount not only as a loss but also as 'interest paid for the use of capital procured by a bond issue.' 293 U.S., at 286, 55 S.Ct., at 167. More recently, in United States v. Midland-Ross Corp., 381 U.S. 54, 85 S.Ct. 1308, 14 L.Ed.2d 214 (1965), we clarified any ambiguity that may have resulted from the interest-loss approach when we stated, id., at 57, 85 S.Ct., at 1310:
'Earned original issue discount serves the same function as stated interest . . .. (I)t is simply 'compensation for the use or forbearance of money.' Deputy v. duPont, 308 U.S. 488, 498 (60 S.Ct. 363, 368, 84 L.Ed. 416).'
21
It was also observed that,
'despite some expressions indicating a contrary view, this Court has often recognized the economic function of discount as interest.' Id., at 66, 85 S.Ct., at 1315 (footnote omitted).
22
Accordingly, the discount may result ultimately in income to the purchaser,9 but when amortized over the life of the obligation, it is deductible by the issuer.
23
While it is thus established that debt discount may ensue when a corporate debt obligation is issued at a discount for cash, this Court has never decided the question whether discount may result when debt obligations are issued in exchange for property other than cash. Those courts that have passed upon the issue have reached opposing conclusions. Compare Nassau Lens Co. v. Commissioner, 308 F.2d 39 (C.A.2 1962); American Smelting & Refining Co. v. United States, 130 F.2d 883 (C.A.3 1942); Southern Fertilizer & Chemical Co. v. Edwards, 167 F.Supp. 879 (M.D.Ga.1955), to the effect that debt discount is available, with Southern Natural Gas Co. v. United States, 412 F.2d 1222, 1235—1239, 188 Ct.Cl. 302 (1969); Montana Power Co. v. United States, 159 F.Supp. 593, 141 Ct.Cl. 620, cert. denied, 358 U.S. 842, 79 S.Ct. 23, 3 L.Ed.2d 76 (1958); Mortana Power Co. v. United States, 232 F.2d 541 (C.A.3) (en banc),10 cert. denied, 352 U.S. 843, 77 S.Ct. 51, 1 L.Ed.2d 59 (1956), to the effect that it is not available. This, of course, is a broader question than the one presented in the present case, and we need not, and do not, decide that broader issue. We are concerned, instead, only with the narrow issue whether debt discount arises where a corporate taxpayer issues an obligation in exchange for its own outstanding preferred shares.
24
In order properly to determine whether debt discount may be said to arise in such a situation, it becomes necessary to recognize the reason or factor that has been thought to justify the deduction. This has been the economic resemblance, in both form and function, which bond discount bears to stated interest for which the Revenue Acts and the Codes have allowed a deduction. Although, as has been noted, there has been some descriptive confusion in the regulations, with their references to 'loss' as well as to 'interest,' and, as has also been noted, this Court, in Helvering v. Union Pacific R. Co., 293 U.S., at 286, 55 S.Ct., at 167, seemed to describe discount both as 'interest paid for the use of capital' and as 'loss resulting from the funding operation,' the relevant inquiry in each case must be whether the issuer-taxpayer has incurred, as a result of the transaction, some cost or expense of acquiring the use of capital. It is to that inquiry we now turn.
III
25
It is NAD's position of course, that amortizable bond discount arose on the exchange of its debentures for its outstanding preferred. It, and the Court of Appeals' majority, would look to what it calls the 'economic realities' of the transaction in order to determine whether a cost of borrowing was incurred. The Court of Appeals likened the transaction to one where the corporation actually issued its $50 debenture for $33 in cash upon the open market (or to a holder of preferred) and then used that cash to purchase and retire outstanding preferred at $33 per share. 472 F.2d, at 802. Upon such a transaction, it is claimed, there can be no question whatsoever that a deductible discount of $17 per debenture would result. It is argued that to deny similar treatment to the transaction which did take place, where a direct exchange was made with the preferred shareholder, would require a corporate taxpayer in the future to engage in a complex and expensive series of securities transactions in order to establish its entitlement to a deduction.
26
This argument, however, calls upon this Court to take two steps that we are reluctant and unwilling to take. First, it would require rejection of the established tax principle that a transaction is to be given its tax effect in accord with what actually occurred and not in accord with what might have occurred. Second, it would require us to speculate about the market price and value to the corporation of the debentures in question had they been sold upon the open market.
27
Even if we were to assume, arguendo, that the hypothetical transaction posed by the taxpayer and the Court of Appeals was indistinguishable, as a matter of economic reality, from what actually occurred, we would not be required, for that reason alone, to recognize a claimed deduction for debt discount. The propriety of a deduction does not turn upon general equitable considerations, such as a demonstration of effective economic and practical equavalence. Rather, it 'depends upon legislative grace; and only as there is clear provision therefor can any particular deduction be allowed.' New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440, 54 S.Ct. 788, 790, 78 L.Ed. 1348 (1934); Deputy v. du Pont, 308 U.S. 488, 493, 60 S.Ct. 363, 366, 84 L.Ed. 416 (1940). This Court has observed repeatedly that, while a taxpayer is free to organize his affairs as he chooses, nevertheless, once having done so, he must accept the tax consequences of his choice, whether contemplated or not, Higgins v. Smith, 308 U.S. 473, 477, 60 S.Ct. 355, 357, 84 L.Ed. 406 (1940); Old Mission Portland Cement Co. v. Helvering, 293 U.S. 289, 293, 55 S.Ct. 158, 160, 79 L.Ed. 367 (1934); Gregory v. Helvering, 293 U.S. 465, 469, 55 S.Ct. 266, 267, 79 L.Ed. 596 (1935), and may not enjoy the benefit of some other route he might have chosen to follow but did not. 'To make the taxability of the transaction depend upon the determination whether there existed an alternative form which the statute did not tax would create burden and uncertainty.' Founders General Corp. v. Hoey, 300 U.S. 268, 275, 57 S.Ct. 457, 460, 81 L.Ed. 639 (1937); Television Industries, Inc. v. Commissioner of Internal Revenue, 284 F.2d 322, 325 (C.A.2 1960); Interlochen Co. v. Commissioner of Internal Revenue, 232 F.2d 873, 877 (C.A.4 1956). See Gray v. Powell, 314 U.S. 402, 414, 62 S.Ct. 326, 333, 86 L.Ed. 301 (1941).
28
Both the rationale and the wisdom of the Court's attitude toward such attempts at reconstruction of transactions are particularly well demonstrated in the present case. In the absence of any actual or even attempted sales of debentures or purchases of the preferred by NAD in the open market, the Court is called upon to speculate as to what the market price and the investor reaction to such events would have been. There are several reasons why we cannot do this:
29
First, there is nothing in the record establishing the cash price at which the debentures could have been sold upon the market had they been offered for sale. The current rate for money and the credit status of the borrower are pertinent factors in the determination of discount (or premium) on an open market, as contrasted with a closed transaction.
30
Second, there is also nothing in the record to indicate that NAD would have been able to purchase all its outstanding preferred on the open market, or at what price that quantity of stock would have been purchased in light of the impending exchange. See Gulf, M. & O.R. Co. v. United States, 339 F.Supp. 489 (S.D.Ala.), final decision 31 A.F.T.R.2d 73—436 (1972), pending on appeal to C.A.5 and deferred awaiting the decision in this case; Cities Service Co. v. United States, 316 F.Supp. 61 (S.D.N.Y.1970) and 362 F.Supp. 830 (S.D.N.Y.1973), appeal to C.A.2 pending. The stipulated over-the-counter quotations, set forth in n. 4, supra, and in the cited National Stock Summary, are quotations only for what at most was a thin market, and were hardly representative of the fair market value of the entire 47,059 preferred shares outstanding. The preferred's redemption price at the time was $51 plus the arrearage, or a total of $61, almost double the claimed $33 per share.
31
Third, when a corporation issues to its preferred shareholders its own new debt obligations in exchange for outstanding preferred, the claimed fair market value of both securities is somewhat artificial since the exchange is effectively insulated from market forces by the intracorporate and private nature of the transaction. See Missiouri Pacific R. Co. v. United States, 427 F.2d, at 730—731, 192 Ct.Cl., at 324—325. The economics underlying discount is that it is an adjustment of the difference between the interest prescribed in the instrument issued and the prevailing market rate for money, and it arises because the prescribed rate is too low to sell the obligations at par in that market. See San Joaquin Light & Power Corp. v. McLaughlin, 65 F.2d 677, 679 (CA9 1933). Thus, implicit in the concept of debt discount is the assumption, and indeed the requirement, that the transaction be subject to the exigencies of the competitive money market.
32
Here, there has been no demonstration that the difference between the claimed $33 per share value of NAD's preferred (laying aside for the moment the aformentioned difficulties in arriving at that determination) and the face amount of the debentures is attributable to debt discount. As the Tax Court noted, 57 T.C., at 52 n. 6, there is no evidence of what the fair market value of the bonds was at the time of their issuance. Other factors that would have to be considered would include NAD's financial condition at the time of the exchange, including both its credit position and its profits prospects, and the availability and cost of capital in the general market as well as from its preferred shareholders. Normally, the market itself performs this evaluative process. Aside from the fact that the transaction was insulated from the market processes, there has been no attempt here to show that the discount rate was determined with a view toward accounting for these several factors rather than simply having been predicated on the par value of the preferred. Accordingly, the requisite evaluation of the property to be exchanged cannot occur in this intracorporate transaction and debt discount cannot be determined. Cf. Gulf, M. & O.R. Co. v. United States, supra; Southern Fertilizer & Chemical Co. v. Edwards, 167 F.Supp., at 881.
IV
33
It has not been demonstrated that NAD, by the exchange, incurred any additional cost for the use of capital. NAD merely replaced that portion of its paid-in capital represented by its preferred with paid-in capital represented by its debentures. From the perspective of the corporation, the transaction was the exchange of ome form of interest or participation in the corporation for another. But the corporate assets were neither increased nor diminished.11
34
To be sure, upon the issuance of its debentures, NAD assumed a fixed oblication to pay at a date certain. The transaction, therefore, perhaps could be said to be something more than a mere reshuffling of the corporation's capital structure, see Helvering v. Southwest Consolidated Corp., 315 U.S. 194, 202, 62 S.Ct. 546, 551, 86 L.Ed. 789 (1942), since a creditor was substituted for a holder with an ownership interest.12 But again, when viewed from the corporation's perspective, and regardless of the income tax effect upon the former preferred shareholder, which we deem to be irrelevant, there has been no new capital acquired and no additional cost incurred in retaining the old capital. See St. Louis-San Francisco R. Co. v. United States, 444 F.2d 1102, 1106, 195 Ct.Cl. 343, 350 (1971), cert. denied, 404 U.S. 1017, 92 S.Ct. 678, 30 L.Ed.2d 665 (1972).
35
In obvious explanation of this, NAD originally received $50 cash for each share of preferred. Although it was not obligated to repay that sum at any fixed time, it made use of that cash pursuant to the provisions of its articles, including both the sinking fund and the redemption-liquidation provisions. Upon the exchange, the corporation canceled the preferred, and thus eliminated the preferred stock account upon its books, together with the preferred's attendant obligations. The market value of the preferred at that moment bore no direct relationship to the amount of funds on hand. The capital 'freed' by the cancellation of the preferred was merely transferred to the liability account for the debentures. No new capital was involved. See Claussen's, Inc. v. United States, 469 F.2d 340 (C.A.5 1972).13
36
It is true that there was some change in the corporate structure. Henceforth, NAD would receive a deduction for interest paid on the debentures, whereas the 5% dividend paid on the preferred had not been deductible. The common shareholders were benefited by the elimination of the dividend arrearages on the preferred and by the elimination of the premium payable on the preferred's retirement. Yet the change was not great. The fixed interest on the debentures was equal to the cumulative dividend on the preferred, and both the preferred and the debentures worked equal diminutions in the earnings otherwise available for the common shareholders. The debentures, of course, were to mature in 1975, but the sinking fund provisions for both the preferred and the debentures were comparable. Thus, the interest of the preferred shareholders 'was fairly reflected in the highly equivalent characteristics of the debentures into which the preferred was converted.' Penfield v. Davis, 105 F.Supp. 292, 311 (N.D.Ala.1952), aff'd, 205 F.2d 798 (C.A.5 1953). The cost of the capital invested in the corporation was the same whether represented by the preferred or by the debentures, and was totally unaffected by the market value of the shares received at the time of the issuance of the debentures. Accordingly while recognizing the alteration which did occur in the corporation's capital structure, we conclude that the substitution by NAD of its debentures for its previously outstanding preferred, without more, did not create an obligation to pay in excess of an amount previously committed, or establish the base upon which debt discount can arise.
37
In sum, the alteration in the form of the retained capital did not give rise to any cost of borrowing to NAD. The fact that the preferred may have been worth something in the neighborhood of only $33 per share on the market at the time of the exchange was of no consequence, since NAD was not required to go into that market and purchase those shares. It was able, instead to obtain the preferred merely by canceling the $50 obligation per share on its equity account and transferring that amount to its debt account. It is in this sense that an exchange of a corporation's own outstanding preferred for newly issued debt obligations may differ, in the tax sense, from an exchange for other property. Such other property—for example, inventory or the stock of another corporation—does not equate with a previous contribution of capital which can continue to be utilized by the corporation at no cost upon cancellation of the preferred equity account.
38
We hold, accordingly, that NAD did not incur amortizable bond discount upon the issuance of its $50 face value 5% debentures in exchange for its outstanding $50 per cumulative preferred stock. The judgment of the Court of Appeals is reversed.
39
Judgment of the Court of Appeals reversed.
40
It is so ordered.
41
Mr. Justice STEWART concurs in the judgment and in Parts I, II, and III of the Court's opinion.
1
'§ 163. Interest.
'(a) General rule.
'There shall be allowed as a deduction all interest paid or accrued within the taxable year on indebtedness.'
2
The resolutions are set forth in full in the opinion of the Court of Appeals. 472 F.2d 796, 798 n. 1 (C.A.10, 1973).
3
The indenture provided for subordination, redemption, and a sinking fund. Specifically, the debentures were to be subordinate to bank loans for inventory purposes and to obligations for materials, services, and labor supplied in the normal course of business. They were redeemable, in whole or in part, and from time to time, after July 1, 1958, at par plus accrued interest.
The sinking fund provision required NAD, after April 30, 1959, to set aside annually, for redemption of debentures at par plus accrued interest, the lesser of (a) the sum sufficient to redeem $196,080 face amount of debentures, or (b) the consolidated net earnings for the fiscal year, with the proviso that if the latter became applicable for any year, the fixed figure was to be cumulative.
NAD has not been in default in the performance of these indenture obligations. As of April 30, 1967, only $581,300 of the original $2,352,950 of debentures remained outstanding. The rest had been redeemed or otherwise repurchased or retired. App. 29.
4
Date Bid Offer Date Bid Offer
July 15 33 35 July 23 32 34
July 16 32 35 July 24 32 35
July 17 32 34 July 25 29 32
July 18 31 34 July 26 30 33
July 19 32 34 July 29 30 33
July 22 31 33 July 30 30 33
5
The deductions for discount taken by NAD on its returns for its fiscal year 1958 through 1967 were:
Unamortized
Discount On
Bonds Currently Straight-
Year Repurchased Line
Ended or Redeemed Amortization Total
4/30/58 --0-- $37,037 $37,037
4/30/59 $20,104 43,273 63,377
4/30/60 17,007 42,310 59,317
4/30/61 --0-- 28,743 28,743
4/30/62 14,062 27,751 41,813
4/30/63 --0-- 27,751 27,751
4/30/64 26,624 25,562 52,186
4/30/65 37,903 22,168 60,071
4/30/66 4,139 21,761 25,900
4/30/67 98,824 10,980 109,804
---------
$505,999
App. 28.
6
See H. Finney & H. Miller, Principles of Accounting, Intermediate 263 (6th ed. 1965); W. Meigs et al., Intermediate Accounting 683—688 (3d ed. 1974).
7
Art. 544 of Regulations 45, promulgated under the Revenue Act of 1918; Art. 545(3)(a) of Regulations 62, 65, and 69, promulgated, respectively, under the Revenue Acts of 1921, 1924, and 1926; Art. 68(3)(a) of Regulations 74 and 77, promulgated, respectively, under the Revenue Acts of 1928 and 1932; Art. 22(a)—
18(3)(a) of Regulations 86, 94, and 101, promulgated respectively, under the Revenue Acts of 1934, 1936, and 1938; and § 29.22(a) 17(3)(a) of Regulations 111, promulgated under the Internal Revenue Code of 1939. See Montana Power Co. v. United States, 232 F.2d 541, 546—548 (C.A.3), cert. denied, 352 U.S. 843, 77 S.Ct. 51, 1 L.Ed.2d 59 (1956).
Under the 1954 Code, the relevant provision first appeared in the Income Tax Regulations as § 1.61—12(c)(3) concerning gross income:
'If bonds are issued by a corporation at a discount, the net amount of such discount is deductible and should be prorated or amortized over the life of the bonds. . . .' Since the issuance of T.D. 6984, 1969—1 Cum.Bull. 38, this same language has appeared under the interest deduction provision in § 1.163—3(a) (1).
8
The 1954 Code's § 1232(b)(2) was amended by the Interest Equalization Tax Act, Pub.L. 88—563, § 5, 78 Stat. 845, and by the Tax Reform Act of 1969, Pub.L. 91—172, § 413(b), 83 Stat. 611, applicable to bonds and other evidences of indebtedness issued after May 27, 1969. As so amended, the statute, in pertinent part reads:
'In the case of a bond or other evidence of indebtedness (other than a bond or other evidence of indebtedness . . . issued pursuant to a plan of reorganization within the meaning of section 368(a)(1)), which is issued for property and which—
'(A) is part of an issue a portion of which is traded on an established securities market, or
'(B) is issued for stock or securities which are traded on an established securities market,
'the issue price of such bond or other evidence of indebtedness . . . shall be the fair market value of such property. Except in cases
to which the preceding sentence applies, the issue price of a bond or other evidence of indebtedness . . . which is issued for property (other than money) shall be the stated redemption price at maturity.'
Inasmuch as NAD's debentures were issued in 1957, the 1969 amendment is not applicable to the transaction.
9
It was unsettled for some time whether income realized by an owner of an original discount obligation was taxable to that owner as ordinary income or as capital gain. In Commissioner of Internal Revenue v. Caulkins, 144 F.2d 482 (C.A.6 1944), decided under the 1939 Code, it was held that gain upon surrender of an installment certificate issued at
a discount was capital gain. Other circuits, however, thereafter held that income attributable to the discount was ordinary income. See, for example, Real Estate Investment Trust v. Commissioner of Internal Revenue, 334 F.2d 986 (C.A.1 1964), cert. denied, 381 U.S. 911, 85 S.Ct. 1529, 14 L.Ed.2d 432 (1965); Dixon v. United States, 333 F.2d 1016 (C.A.2 1964), aff'd, 381 U.S. 68, 85 S.Ct. 1301, 14 L.Ed.2d 223 (1965); United States v. Harrison, 304 F.2d 835 (C.A.5 1962), cert. denied, 372 U.S. 934, 83 S.Ct. 881, 9 L.Ed.2d 765 (1963); Rosen v. United States, 288 F.2d 658 (C.A.3 1961); Commissioner of Internal Revenue v. Morgan, 272 F.2d 936 (C.A.9 1959).
The issue was settled by the decision in United States v. Midland-Ross Corp., 381 U.S. 54, 85 S.Ct. 1308, 14 L.Ed.2d 214 (1965), when the Court held that earned original issue discount is not entitled to capital gain treatment under the 1939 Code.
Congress, in enacting § 1232 of the 1954 Code, adopted a different approach to earned original issue discount, referring to it as 'a form of interest income' in S.Rep.No. 1622, 83d Cong., 2d Sess., 112 (1954). Under § 1232(a)(2), gain from the sale or redemption of a corporate obligation issued at a discount is taxed as the gain from the sale of a noncapital asset. If the obligation is held by the original purchaser to maturity, the entire amount of the discount is so taxed, but if it is sold or redeemed before maturity, only the portion accrued up to the date of sale or redemption is so taxed. See De Kosmian, Original Issue Discount, 22 Tax Lawyer 339, 340—347 (1969); Zafft, Discount Bonds—Ordinary Income or Capital Gain?, 11 Tax L.Rev. 51 (1955).
10
Judge Kalodner, joined by Judge Staley, observed, 'The American Smelting decision in that respect must be limited to its facts.' 232 F.2d, at 546.
11
In Old Mission Portland Cement Co. v. Helvering, 293 U.S. 289, 55 S.Ct. 158, 79 L.Ed. 367 (1934), where original issue discount bonds were held by an affiliate of the issuing corporation, the Court concluded that a deduction for the discount was not available when the affiliated corporations filed a consolidated income tax return. The situation was related to that of a single taxpayer purchasing its own bonds prior to maturity. Because, viewing the affiliates as a single taxpaying entity, there was no obligation to pay the face amount at maturity, the issuer 'could not afterwards deduct, from gross income, the amortized discount on the bonds, in anticipation of their payment at maturity.' Id., at 292, 55 S.Ct. at 160. Here NAD incurred no additional obligation because of the substitution of its debentures for its preferred.
12
While in no sense implying that the securities were equivalent, the Court in the past has noted that the investment difference between preferred shares and unsecured debentures can be of slight degree, and is further diminished when, as here, the debentures are subordinated. John Kelley Co. v. Commissioner of Internal Revenue, 326 U.S. 521, 66 S.Ct. 299, 90 L.Ed. 278 (1946).
13
'We simply cannot overlook the complete lack of substance to the claims of the corporation here. Its assets were not diminished by a penny, either when the debentures were issued to the stockholders or where the face amount of the bonds was assumed by Fuqua (thus, presumably reducing the amount of the purchase price). The company paid nothing more to the bond-holders at any time than the current interest. It did not sell them to anyone at a discount. It issued them either as dividend, partial distribution of earned income and capital, or as 'boot' in a tax-free reorganization. It cannot deduct as interest what it has not paid out or become liable to pay out to anybody.' 469 F.2d, at 344 n. 11.
| 1112
|
417 U.S. 187
94 S.Ct. 2594
40 L.Ed.2d 754
Cale J. HOLDER, United States District Judge for the Southern District of Indiana, Petitioner,v.Arthur BANKS.
No. 73-841.
Supreme Court of the United States
May 28, 1974
Karl J. Stipher, Indianapolis, Ind., for petitioner.
Morton Stavis, New York City, for respondent.
On Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit.
PER CURIAM.
1
The petition for certiorari is dismissed as improvidently granted.
2
Mr. Justice POWELL took no part in the consideration or decision of this case.
| 89
|
417 U.S. 106
94 S.Ct. 2174
40 L.Ed.2d 694
COOPER STEVEDORING COMPANY, INC., Petitioner,v.FRITZ KOPKE, INC., et al.
No. 73—726.
Argued April 15, 16, 1974.
Decided May 28, 1974.
Syllabus
A longshoreman was injured when, while loading a vessel owned by one respondent and time chartered to the other (hereinafter collectively the Vessel), he stepped into a concealed gap between crates which had previously been loaded by petitioner. The longshoreman then sued the Vessel, which filed a third-party complaint against petitioner. The District Court found both the Vessel and petitioner negligent, and divided the liability equally. On petitioner's appeal, the Court of Appeals affirmed. Held: The award of contribution between joint tortfeasors in a noncollision maritime case was proper under the circumstances. On the facts, no countervailing considerations detract from the well-established maritime rule allowing contribution between joint tortfeasors, since where the longshoreman, not being an employee of petitioner, could have proceeded against either the Vessel or petitioner, or both, and thus could have elected to make petitioner bear its share of the damages, there is no reason why the Vessel should not be accorded the same right. Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318, distinguished. Pp. 110—115.
Sessions v. Fritz Kopke, Inc., 5 Cir., 479 F.2d 1041, affirmed.
Joseph D. Cheavens, Houston, Tex., for petitioner.
Dixie Smith, Houston, Tex., for respondents.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
This case concerns the extent to which contribution between joint tortfeasors may be obtained in a maritime action for personal injuries. The S.S. Karina, a vessel owned and operated by respondent Fritz Kopke, Inc., and under time charter to respondent Alcoa Steamship Co., was loaded at Mobile, Alabama, with palletized crates of cargo by petitioner Cooper Stevedoring Co. The vessel then proceeded to the Port of Houston where longshoremen employed by Mid-Gulf Stevedores, Inc., began to load sacked cargo. The Houston long-shoremen had to use the top of the tier of creates loaded by Cooper as a floor on which to walk and stow the Houston cargo. One of these longshoremen, Troy Sessions, injured his back when he stepped into a gap between the creates which had been concealed by a large piece of corrugated paper.
2
Sessions brought suit in the District Court against Kopke and Alcoa (hereinafter collectively the Vessel) seeking to recover damages for his injuries.1 The Vessel filed a third-party complaint against Cooper alleging that if Sessions was injured by any unseaworthy condition of the vessel or as the result of negligence other than his own, such condition or negligence resulted from the conduct of Cooper and its employees. The Vessel also filed a similar third-party complaint against Mid-Gulf.
3
Prior to trial, Mid-Gulf and the Vessel apparently entered into an agreement under which Mid-Gulf would indemnify the Vessel against any recovery which Sessions might obtain. Pursuant to this agreement, Mid-Gulf was dismissed as a third-party defendant and MidGulf's attorneys were substituted as counsel for the Vessel.2
4
The case then went to trial, after which the District Court, which sat without a jury, orally announced its findings of fact and conclusions of law. The court found that the Vessel's failure either to make adequate arrangements to assure that the stow would not move and leave spaces in the course of its trip from Mobile to Houston or to put some type of dunnage on top of the stow had resulted in an unsafe place to work and unseaworthy condition. The court found that Cooper was also negligent in not stowing the creates in a manner in which longshoremen at subsequent ports could safely work on top of them. Finding it difficult from the evidence to 'evaluate exactly the responsibility between the shipowner on the one hand and Cooper on the other,' the District Court divided the liability equally between the Vessel and Cooper.3 Judgment was entered allowing Sessions to recover $38,679.90 from the Vessel and allowing the Vessel to recover $19,339.95 from Cooper.
5
Cooper appealed,4 asserting that the District Court's award of contribution in a noncollision maritime case was in direct conflict with this Court's decisions in Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318 (1952), and Atlantic Coast Line R. Co. v. Erie Lackawanna R. Co., 406 U.S. 340, 92 S.Ct. 1550, 32 L.Ed.2d 110 (1972). The Court of Appeals rejected this contention, relying on prior decisions of the Fifth and Second Circuits to the effect that the apparent prohibition against contribution in noncollision maritime cases announced in Halcyon and Atlantic was inapplicable where the joint tortfeasor against whom contribution is sought is not immune from tort liability by statute. See Horton & Horton, Inc. v. T/S J. E. Dyer, 428 F.2d 1131 (CA5 1970), cert. denied, 400 U.S. 993, 91 S.Ct. 461, 27 L.Ed.2d 441 (1971); Watz v. Zapata Off-Shore Co., 431 F.2d 100 (CA5 1970); In re Seaboard Shipping Corp., 449 F.2d 132 (CA2 1971), cert. denied, 406 U.S. 949, 92 S.Ct. 2038, 32 L.Ed.2d 337 (1972). The Court of Appeals found this principle applicable here since Sessions, in addition to suing the Vessel, could have proceeded directly against Cooper as the latter was not his employer and, therefore, not shielded by the limited liability of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 905, 479 F.2d 1041 (CA5 1973). We granted certiorari to consider this question, 414 U.S. 1127, 94 S.Ct. 864, 38 L.Ed.2d 752 (1974), and now affirm.
6
Where two vessels collide due to the fault of each, an admiralty doctrine of ancient lineage provides that the mutual wrongdoers shall share equally the damages sustained by each. In The North Star, 106 U.S. 17, 1 S.Ct. 41, 27 L.Ed. 91 (1882), Mr. Justice Bradley traced the doctrine back to the Laws of Ole ron which date from the 12th century, and its roots no doubt go much deeper. Even though the common law of torts rejected a right of contribution among joint tortfeasors, the principle of division of damages in admiralty has, over the years, been liberally extended by this Court in directions deemed just and proper. In one line of cases, for example, the Court expanded the doctrine to encompass not only damage to the vessels involved in a collision, but personal injuries and property damage caused innocent third parties as well. See, e.g., The Washington, 9 Wall. 513, 19 L.Ed. 787 (1870); The Alabama, 92 U.S. 695, 23 L.Ed. 763 (1876); The Atlas, 93 U.S. 302, 23 L.Ed. 863 (1876); The Chattahoochee, 173 U.S. 540, 19 S.Ct. 491, 43 L.Ed. 801 (1899). See generally The Max Morris, 137 U.S. 1, 8—11, 11 S.Ct. 29, 30—32, 34 L.Ed. 586 (1890). In other cases, the Court has recognized the application of the rule of divided damages in circumstances not involving a collision between two vessels, as where a ship strikes a pier due to the fault of both the shipowner and the pier owner, see Atlee v. Packet Co., 21 Wall. 389, 22 L.Ed. 619 (1875), or where a vessel goes aground in a canal due to the negligence of both the shipowner and the canal company, see White Oak Transp. Co. v. Boston, Cape Code & New York Canal Co., 258 U.S. 341, 42 S.Ct. 338, 66 L.Ed. 649 (1922). See also The Max Morris, supra, 137 U.S., at 13—14, 11 S.Ct., at 32—33. Indeed, it is fair to say that application of the rule of division of damages between joint tortfeasors in admiralty cases has been as broad as its underlying rationales. The interests of safety dictate that where two parties 'are both in fault, they should bear the damage equally, to make them more careful.' The Alabama, supra, 92 U.S., at 697. And a 'more equal distribution of justice' can best be achieved by ameliorating the common-law rule against contribution which permits a plaintiff to force one of two wrongdoers to bear the entire loss, though the other may have been equally or more to blame. See The Max Morris, supra, 137 U.S., at 14, 11 S.Ct., at 32.
7
Despite the occasional breadth of its dictum, our opinion in Halcyon should be read with this historical backdrop in mind. Viewed from this perspective, and taking into account the fectual circumstances presented in that case, we think Halcyon stands for a more limited rule than the absolute bar against contribution in noncollision cases urged upon us by petitioner.5
8
In Halcyon, a ship repair employee was injured while making repairs on Halcyon's ship. He sued Halcyon for damages, alleging negligence and unseaworthiness. Since the employee was covered by the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901—950, he was prohibited from suing his employer Haenn. Nevertheless Halcyon impleaded Haenn as a joint tortfeasor seeking contribution for the judgment recovered by the employee. We granted certiorari in Halcyon to resolve a conflict which had arisen among the circuits as to whether a shipowner could recover contribution in these circumstances. See 342 U.S., at 283—284, and n. 3, 72 S.Ct., at 278—279. One court had held that the employer's limitation of liability vis-a -vis its employee under the Harbor Workers' Act barred contribution. See American Mutual Liability Insurance Co. v. Matthews, 182 F.2d 322 (CA2 1950). Another Circuit had held that the Act did not bar contribution, see United States v. Rothschild Int'l Stevedoring Co., 183 F.2d 181 (CA9 1950), and yet a third Circuit, in the case reviewed in Halcyon, had permitted contribution but limited it to the amount which the injured employee could have compelled the employer to pay had he elected to claim compensation under the Act. 187 F.2d 403 (CA3 1951).
9
Before this Court, both parties in Halcyon agreed that 'limiting an employer's liability for contribution to those uncertain amounts recoverable under the Harbor Workers' Act is impractical and undesirable.' 342 U.S., at 284, 72 S.Ct. at 279. The Court also took cognizance of the apparent trade-off in the Act between the employer's limitation of liability and the abrogation, in favor of the employee, of common-law doctrines of contributory negligence and assumption or risk. Id., at 285—286, 72 S.Ct. at 279—280. Confronted with the possibility that any workable rule of contribution might be inconsistent with the balance struck by Congress in the Harbor Workers' Act between the interests of carriers, employers, employees, and their respective insurers, we refrained from allowing contribution in the circumstances of that case.
10
These factors underlying our decision in Halcyon still have much force. Indeed, the 1972 amendments to the Harbor Workers' Act re-emphasize Congress' determination that as between an employer and its injured employee, the right to compensation under the Act should be the employee's exclusive remedy.6 But whatever weight these factors were properly accorded in the factual circumstances presented in Halcyon, they have no application here. Unlike the injured worker in Halcyon, Sessions was not an employee of Cooper and could have proceeded against either the Vessel or Cooper or both of them to recover full damages for his injury. Had Sessions done so, either or both of the defendants could have been held responsible for all or part of the damages. Since Sessions could have elected to make Cooper bear its share of the damages caused by its negligence, we see no reason why the Vessel should not be accorded the same right. On the facts of this case, then, no countervailing considerations detract from the well-established maritime rule allowing contribution between joint tortfeasors.
11
Our brief per curiam opinion in Atlantic Coast Line R. Co. v. Erie Lackawanna R. Co., 406 U.S. 340, 92 S.Ct. 1550, 32 L.Ed.2d 110 (1972), is fully consistent with this view. In that case a yard brakeman, employed by Erie, brought suit for injuries sustained while working on a boxcar owned by another railroad. Atlantic, while the boxcar was being transported on a carfloat barge owned by Erie. The accident was allegedly due to a defective footboard and handbrake of the boxcar and the plaintiff sued Atlantic for its negligence in supplying defective equipment. Atlantic sought contribution from Erie on the ground that its negligence was also a factor in causing the injury. The District Court denied contribution, relying on Halcyon. The Court of Appeals affirmed and we granted certiorari because it initially appeared that the decision was inconsistent with the Courts of Appeals' decisions in Horton, Watz, and Seaboard, supra, which had allowed contribution, notwithstanding Halcyon, in situations where the party against whom contribution was sought was not entitled to the limitation-of-liability protections of the Harbor Workers' Act. After oral argument, however, it appeared that the case was factually indistinguishable from Halcyon. Erie, against whom contribution was sought, was the plaintiff's employer, and in Pennsylvania R. Co. v. O'Rourke, 344 U.S. 334, 73 S.Ct. 302, 97 L.Ed. 367 (1953), we recognized that a railroad employee injured while working on a freight car situated on a carfloat in navigable waters was subject exclusively to the Harbor Workers' Act. Erie was therefore entitled to the limitation-of-liability protections of the Harbor Workers' Act, just like the employer in Halcyon.
12
Petitioner argues, however, that this protection was ephemeral in Atlantic since, under Jackson v. Lykes Bros. S.S. Co., 386 U.S. 731, 87 S.Ct. 1419, 18 L.Ed.2d 488 (1967), the injured employee in Atlantic could have sued Erie, the shipowner-employer, for unseaworthiness of the vessel. See also Reed v. The Yaka, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448 (1963). But the fact that Erie may have been subject to a suit based on unseaworthiness for damages caused by defective boxcar appliances, compare The Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 487, 47 L.Ed. 760 (1903), with Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 213, 83 S.Ct. 1185, 1189, 10 L.Ed.2d 297 (1963), did not make it a joint tortfeasor subject to a contribution claim. Contribution rests upon a finding of concurrent fault. Erie's liability, if any, for unseaworthiness of its vessel would have been a strict liability not based upon fault. In other words, even if Erir were negligent, its injured employee was entitled to claim compensation from it under the Harbor Workers' Act, and Erie was accordingly entitled to the protective mantle of the Act's limitation-of-liability provisions. And to the extent Erie was not negligent but nevertheless subject to a suit on a seaworthiness theory, Erie was not a joint tortfeasor against whom contribution could be sought. See Simpson Timber Co. v. Parks, 390 F.2d 353 (CA9), cert. denied, 393 U.S. 858, 89 S.Ct. 126, 21 L.Ed.2d 127 (1968).
13
In sum, our opinion in Atlantic was not intended to answer the question posed by the present case, as its failure to discuss Horton, Watz, and Seaboard indicates. Rather, Atlantic proves only that our decision in Halcyon was, and still is, good law on its facts.
14
Affirmed.
15
Mr. Justice STEWART took no part in the decision of this case.
1
This suit was commenced prior to the enactment of the 1972 amendments to the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901—944 (1970 ed., Supp. II), and all parties agree that the amendments are therefore not applicable. Accordingly we need not decide whether Sessions' suit against the Vessel or the Vessel's third-party complaints against Cooper or Mid-Gulf could be brought under the Act, as amended. See § 905(b).
2
Petitioner suggests that the Vessel cannot recover contribution because it has already been fully indemnified for the judgment under its agreement with Mid-Gulf. See W. Prosser, Law of Torts §§ 48—49 (4th ed. 1971). But this suggestion rests on a faulty construction of the agreement between the Vessel and Mid-Gulf. The latter agreed to indemnify the Vessel only to the extent necessary after trial of the lawsuit, and the assumption of the parties was that Mid-Gulf would step into the Vessel's shoes both to defend the suit brought by Sessions and to prosecute the third-party complaint against Cooper.
3
Since the District Court concluded that the only apportionment of fault it could reach on the evidence in this case was an equal division, we have no occasion in this case to determine whether contribution in cases such as this should be based on an equal division of damages or should be relatively apportioned in accordance with the degree of fault of the parties. Cf. The Max Morris, 137 U.S. 1, 15, 11 S.Ct. 29, 33, 34 L.Ed. 586 (1890). See also Jacob v. New York City, 315 U.S. 752, 62 S.Ct. 854, 86 L.Ed. 1166 (1942); Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 59 S.Ct. 262, 83 L.Ed. 265 (1939); The Arizona v. Anelich, 298 U.S. 110, 56 S.Ct. 707, 80 L.Ed. 1075 (1936). See generally Staring, Contribution and Division of Damages in Admiralty and Maritime Cases, 45 Calif.L.Rev. 304, 340—344 (1957).
4
The Vessel also cross-appealed, contending that the District Court should have allowed it full indemnity from Cooper. The Court of Appeals rejected this argument, relying on the District Court's finding that the Vessel's 'conduct precluded its full recovery on the indemnity claim because it failed to fulfill its primary responsibility under its arrangement with Cooper to assure that some type of dunnage was placed on top of the cargo.' 479 F.2d 1041, 1042. Cf. Weyer-haeuser S.S. Co. v. Nacirema Operating Co., 355 U.S. 563, 567, 78 S.Ct. 438, 440, 2 L.Ed.2d 491 (1958). The Vessel did not file a petition for a writ of certiorari to seek review of this aspect of the Court of Appeals' judgment, and we therefore lack jurisdiction to consider its contention that it is entitled to recover full indemnity on the basis of Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956).
5
The lower courts have generally not read Halcyon as petitioner suggests, and have continued to recognize a right of contribution in noncollision maritime cases. See, e.g., Crain Bros., Inc. v. Wieman & Ward Co., 223 F.2d 256 (CA3 1955); Moran Towing Corp. v. M. A. Gammino Constr. Co., 409 F.2d 917 (CA1 1969); Coca Cola Co., Tenco Div. v. S.S. Norholt, 333 F.Supp. 946 (SDNY 1971); Dow Chemical Co. v. Tug Thomas Allen, 349 F.Supp. 1354 (ED La 1972); Bilkay Holding Corp. v. Consolidated Iron & Metal Co., 330 F.Supp. 1313 (SDNY 1971); American Independent Oil Co. v. M. S. Alkaid, 289 F.Supp. 329 (SDNY 1967); Cities Service Refining Corp. v. National Bulk Carriers, Inc., 146 F.Supp. 418 (SD Tex 1956).
6
Under the 1972 amendments, an employee injured on a vessel can bring an action against the vessel for negligence, but the vessel's liability will not be based upon the warranty of seaworthiness or breach thereof. And where the vessel has been held liable for negligence 'the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void.' 33 U.S.C. § 905(b) (1970 ed., Supp. II). The intent and effect of this amendment were to overrule this Court's decisions in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), and Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956), insofar as they made an employer circuitously liable for injuries to its employee, by allowing the employee to maintain an action for unseaworthiness against the vessel and allowing the vessel to maintain an action for indemnity against the employer. See H.R.Rep.No.92—1441, pp. 4 8 (1972); S.Rep.No.92—1125, pp. 8—12 (1972).
| 78
|
417 U.S. 85
94 S.Ct. 2179
40 L.Ed.2d 678
Isadore H. BELLIS, Petitioner,v.UNITED STATES.
No. 73—190.
Argued Feb. 25, 1974.
Decided May 28, 1974.
Syllabus
Fifth Amendment privilege against self-incrimination held not available to member of dissolved law partnership who had been subpoenaed by a grand jury to produce the partnership's financial books and records, since the partnership, though small, had an institutional identity and petitioner held the records in a representative, not a personal, capacity. The privilege is 'limited to its historic function of protecting only the natural individual from compulsory incrimination through his own testimony or personal records.' United States v. White, 322 U.S. 694, 701, 64 S.Ct. 1248, 1252, 88 L.Ed. 1542. Pp. 87—101.
In re Grand Jury Investigation, 3 Cir., 483 F.2d 961, affirmed.
Leonard Sarner, Philadelphia, Pa., for petitioner.
Lawrence G. Wallace, Washington, D.C., for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
The question presented in this case is whether a partner in a small law firm may invoke his personal privilege against self-incrimination to justify his refusal to comply with a subpoena requiring production of the partnership's financial records.
2
Until 1969, petitioner Isadore Bellis was the senior partner in Bellis, Kolsby & Wolf, a law firm in Philadelphia. The firm was formed in 1955 or 1956. There were three partners in the firm, the three individuals listed in the firm name. In addition, the firm had six employees: two other attorneys who were associated with the firm, one parttime; three secretaries; and a receptionist. Petitioner's secretary doubled as the partnership's bookkeeper, under the direction of petitioner and the firm's independent accountant. The firm's financial records were therefore maintained in petitioner's office during his tenure at the firm.
3
Bellis left the firm in late 1969 to join another law firm. The partnership was dissolved, although it is apparently still in the process of winding up its affairs. Kolsby and Wolf continued in practice together as a new partnership, at the same premises. Bellis moved to new offices, leaving the former partnership's financial records with Kolsby and Wolf, where they remained for more than three years. In February or March 1973, however, shortly before issuance of the subpoena in this case, petitioner's secretary, acting at the direction of petitioner or his attorney, removed the records from the old premises and brought them to Bellis' new office.
4
On May 1, 1973, Bellis was served with a subpoena directing him to appear and testify before a federal grand jury and to bring with him 'all partnership records currently in your possession for the partnership of Bellis, Kolsby & Wolf for the years 1968 and 1969.' App. 6. Petitioner appeared on May 9, but refused to produce the records, claiming, inter alia, his Fifth Amendment privilege against compulsory self-incrimination. After a hearing before the District Court on May 9 and 10, the court held that petitioner's personal privilege did not extend to the partnership's financial books and records, and ordered their production by May 16.1 When petitioner reappeared before the grand jury on that date and again refused to produce the subpoenaed records, the District Court held him in civil contempt, and released him on his own recognizance pending an expedited appeal.
5
On July 9, 1973, the Court of Appeals affirmed in a per curiam opinion. In re Grand Jury Investigation, 483 F.2d 961 (CA3 1973). Relying on this Court's decision in United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542 (1944), the Court of Appeals stated that 'the privilege has always been regarded as personal in the sense that it applies only to an individual's words or personal papers' and thus held that the privilege against self-incrimination did not apply to 'records of an entity such as a partnership which has a recognizable juridical existence apart from its members.' 483 F.2d, at 962. After Mr. Justice White had stayed the mandate of the Court of Appeals on August 1, we granted certiorari, 414 U.S. 907, 94 S.Ct. 233, 38 L.Ed.2d 145 (1973), to consider this interpretation of the Fifth Amendment privilege and the applicability of our White decision in the circumstances of this case. We affirm.
6
It has long been established, of course, that the Fifth Amendment privilege against compulsory self-incrimination protects an individual from compelled production of his personal papers and effects as well as compelled oral testimony. In Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), we held that 'any forcible and compulsory extortion of a man's own testimony, or of his private papers to be used as evidence to convict him of crime' would violate the Fifth Amendment privilege. Id., at 630, 6 S.Ct., at 532; see also id., at 633—635, 6 S.Ct. at 533—535; Wilson v. United States, 221 U.S. 361, 377, 31 S.Ct. 538, 543, 55 L.Ed. 771 (1911). The privilege applies to the business records of the sole proprietor or sole practitioner as well as to personal documents containing more intimate information about the individual's private life. Boyd v. United States, supra; Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973); Hill v. Philpott, 445 F.2d 144 (CA7), cert. denied, 404 U.S. 991, 92 S.Ct. 533, 30 L.Ed.2d 5 (1971); Stuart v. United States, 416 F.2d 459, 462 (CA5 1969). As the Court explained in United States v. White, supra, 322 U.S. at 698, 64 S.Ct. at 1251, '(t)he constitutional privilege against self-incrimination . . . is designed to prevent the use of legal process to force from the lips of the accused individual the evidence necessary to convict him or to force him to produce and authenticate any personal documents or effects that might incriminate him.' See also Curcio v. United States, 354 U.S. 118, 125, 77 S.Ct. 1145, 1150, 1 L.Ed.2d 1225 (1957); Couch v. United States, supra, 409 U.S. at 330—331, 93 S.Ct. at 616—617.
7
On the other hand, an equally long line of cases has established that an individual cannot rely upon the privilege to avoid producing the records of a collective entity which are in his possession in a representative capacity, even if these records might incriminate him personally. This doctrine was first announced in a series of cases dealing with corporate records. In Wilson v. United States, supra, the Court held that an officer of a corporation could not claim his privilege against compulsory self-incrimination to justify a refusal to produce the corporate books and records in response to a grand jury subpoena duces tecum directed to the corporation. A companion case, Dreier v. United States, 221 U.S. 394, 31 S.Ct. 550, 55 L.Ed. 784 (1911), held that the same result followed when the subpoena requiring production of the corporate books was directed to the individual corporate officer. In Wheeler v. United States, 226 U.S. 478, 33 S.Ct. 158, 57 L.Ed. 309 (1913), the Court held that no Fifth Amendment privilege could be claimed with respect to corporate records even though the corporation had previously been dissolved. And Grant v. United States, 227 U.S. 74, 33 S.Ct. 190, 57 L.Ed. 423 (1913), applied this principle to the records of a dissolved corporation where the records were in the possession of the individual who had been the corporation's sole shareholder.
8
To some extent, these decisions were based upon the particular incidents of the corporate form, the Court observing that a corporation has limited powers granted to it by the State in its charter, and is subject to the retained 'visitorial power' of the State to investigate its activities. See, e.g., Wilson v. United States, supra, 221 U.S., at 382—385, 31 S.Ct., at 545—546. But any thought that the principle formulated in these decisions was limited to corporate records was put to rest in United States v. White, supra. In White, we held that an officer of an unincorporated association, a labor union, could not claim his privilege against compulsory self-incrimination to justify his refusal to produce the union's records pursuant to a grand jury subpoena. White announced the general rule that the privilege could not be employed by an individual to avoid production of the records of an organization, which he holds in a representative capacity as custodian on behalf of the group. 322 U.S., at 699 700, 64 S.Ct., at 1251—1252. Relying on White, we have since upheld compelled production of the records of a variety of organizations over individuals' claims of Fifth Amendment privilege. See, e.g., United States v. Fleischman, 339 U.S. 349, 357—358, 70 S.Ct. 739, 743—744, 94 L.Ed. 906 (1950) (Joint Anti-Fascist Refugee Committee); Rogers v. United States, 340 U.S. 367, 371—372, 71 S.Ct. 438, 440—442, 95 L.Ed. 344 (1951) (Communist Party of Denver); McPhaul v. United States, 364 U.S. 372, 380, 81 S.Ct. 138, 143, 5 L.Ed.2d 136 (1960) (Civil Rights Congress). See also Curcio v. United States, supra. Ct. 1145, 1 L.Ed.2d 1225 (1957) (local labor union).
9
These decisions reflect the Court's consistent view that the privilege against compulsory self-incrimination should be 'limited to its historic function of protecting only the natural individual from compulsory incrimination through his own testimony or personal records.' United States v. White, supra, 322 U.S. at 701, 64 S.Ct. at 1252. White is only one of the many cases to emphasize that the Fifth Amendment privilege is a purely personal one, most recent among them being the Court's decision last Term in Couch v. United States, 409 U.S., at 327 328, 93 S.Ct., at 615—616. Relying on this fundamental policy limiting the scope of the privilege, the Court in White held that 'the papers and effects which the privilege protects must be the private property of the person claiming the privilege, or at least in his possession in a purely personal capacity.' 322 U.S., at 699, 64 S.Ct. at 1251. Mr. Justice Murphy reasoned that 'individuals, when acting as representatives of a collective group, cannot be said to be exercising their personal rights and duties nor to be entitled to their purely personal privileges. Rather they assume the rights, duties and privileges of the artificial entity or association of which they are agents or officers and they are bound by its obligations.' Ibid.
10
Since no artificial organization may utilize the personal privilege against compulsory self-incrimination, the Court found that it follows that an individual acting in his official capacity on behalf of the organization may likewise not take advantage of his personal privilege. In view of the inescapable fact that an artificial entity can only act to produce its records through its individual officers or agents, recognition of the individual's claim of privilege with respect to the financial records of the organization would substantially undermine the unchallenged rule that the organization itself is not entitled to claim any Fifth Amendment privilege, and largely frustrate legitimate governmental regulation of such organizations. Mr. Justice Murphy put it well:
11
'The scope and nature of the economic activities of incorporated and unincorporated organizations and their representatives demand that the constitutional power of the federal and state governments to regulate those activities be correspondingly effective. The greater portion of evidence of wrongdoing by an organization or its representatives is usually to be found in the official records and documents of that organization. Were the cloak of the privilege to be thrown around these impersonal records and documents, effective enforcement of many federal and state laws would be impossible. The framers of the constitutional guarantee against compulsory self-disclosure, who were interested primarily in protecting individual civil liberties, cannot be said to have intended the privilege to be available to protect economic or other interests of such organizations so as to nullify appropriate governmental regulations.' Id., at 700, 64 S.Ct., at 1251 (citations omitted).
12
See also Wilson v. United States, supra, 221 U.S. at 384—385, 31 S.Ct., at 545—546.
13
The Court's decisions holding the privilege inapplicable to the records of a collective entity also reflect a second, though obviously interrelated, policy underlying the privilege, the protection of an individual's right to a "private enclave where he may lead a private life." Murphy v. Waterfront Comm'n, 378 U.S. 52, 55, 84 S.Ct. 1594, 1597, 12 L.Ed.2d 678 (1964). We have recognized that the Fifth Amendment 'respects a private inner sanctum of individual feeling and thought'—an inner sanctum which necessarily includes an individual's papers and effects to the extent that the privilege bars their compulsory production and authentication—and 'proscribes state intrusion to extract self-condemnation.' Couch v. United States, supra, 409 U.S. at 327, 93 S.Ct. at 615. See also Griswold v. Connecticut, 381 U.S. 479, 484, 85 S.Ct. 1678, 1681, 14 L.Ed.2d 510 (1965). Protection of individual privacy was the major theme running through the Court's decision in Boyd, see, e.g., 116 U.S., at 630, 6 S.Ct., at 532, and it was on this basis that the Court in Wilson distinguished the corporate records involved in that case from the private papers at issue in Boyd. See 221 U.S., at 377, 380, 31 S.Ct., at 543, 544.
14
But a substantial claim of privacy or confidentiality cannot often be maintained with respect to the financial records of an organized collective entity. Control of such records is generally strictly regulated by statute or by the rules and regulations of the organization, and access to the records is generally guaranteed to others in the organization. In such circumstances, the custodian of the organization's records lacks the control over their content and location and the right to keep them from the view of others which would be characteristic of a claim of privacy and confidentiality. Mr. Justice Murphy recognized the significance of this in White; he pointed out that organizational records '(u)sually, if not always, . . . are open to inspection by the members,' that 'this right may be enforced on appropriate occasions by available legal procedures,' and that '(t)hey therefore embody no element of personal privacy.' 322 U.S., at 699 700, 64 S.Ct., at 1251. And here lies the modern-day relevance of the visitorial powers doctrine relied upon by the Court in Wilson and the other cases dealing with corporate records; the Court's holding that no privilege exists 'where, by virtue of their character and the rules of law applicable to them, the books and papers are held subject to examination by the (state),' 221 U.S., at 382, 31 S.Ct., at 545, can easily be understood as a recognition that corporate records do not contain the requisite element of privacy or confidentiality essential for the privilege to attach.
15
The analysis of the Court in White, of course, only makes sense in the context of what the Court described as 'organized, institutional activity.' 322 U.S., at 701, 64 S.Ct., at 1252. This analysis presupposes the existence of an organization which is recognized as an independent entity apart from its individual members. The group must be relatively well organized and structured and not merely a loose, informal association of individuals. It must maintain a distinct set of organizational records, and recognize rights in its members of control and access to them. And the records subpoenaed must in fact be organizational records held in a representative capacity. In other words, it must be fair to say that the records demanded are the records of the organization rather than those of the individual under White.
16
The Court in White had little difficulty in concluding that the demand for production of the official records of a labor union, whether national or local, in the custody of an officer of the union, met these tests. See id., at 701—703, 64 S.Ct., at 1252 1253. The Court observed that a union's existence in fact, if not in law, was 'as perpetual as that of any corporation,' id., at 701, 64 S.Ct., at 1252, that the union operated under formal constitutions, rules, and bylaws, and that it engaged in a broad scope of activities in which it was recognized as an independent entity. The Court also pointed out that the official union books and records were distinct from the personal books and records of its members, that the union restricted the permissible uses of these records, and that it recognized its members' rights to inspect them. Although the Court was aware that the individual members might legally hold title to the union records, the Court characterized this interest as a 'nominal' rather than a significant personal interest in them.
17
We think it is similarly clear that partnerships may and frequently do represent organized institutional activity so as to preclude any claim of Fifth Amendment privilege with respect to the partnership's financial records. Some of the most powerful private institutions in the Nation are conducted in the partnership form. Wall Street law firms and stock brokerage firms provide significant examples. These are often large, impersonal, highly structured enterprises of essentially perpetual duration. The personal interest of any individual partner in the financial records of a firm of this scope is obviously highly attenuated. It is inconceivable that a brokerage house with offices from coast to coast handling millions of dollars of investment transactions annually should be entitled to immunize its records from SEC scrutiny solely because it operates as a partnership rather than in the corporate form. Although none of the reported cases has involved a partnership of quite this magnitude, it is hardly surprising that all of the courts of appeals which have addressed the question have concluded that White's analysis requires rejection of any claim of privilege in the financial records of a large business enterprise conducted in the partnership form. In re Mal Brothers Contracting Co., 444 F.2d 615 (CA3), cert. denied, 404 U.S. 857, 92 S.Ct.106, 30 L.Ed.2d 99 (1971); United States v. Silverstein, 314 F.2d 789 (CA2), cert. denied, 374 U.S. 807, 83 S.Ct. 1696, 10 L.Ed.2d 1031 (1963); United States v. Wernes, 157 F.2d 797, 800 (CA7 1946). See also United States v. Onassis, 125 F.Supp. 190, 205—210 (DC 1954). Even those lower courts which have held the privilege applicable in the context of a smaller partnership have frequently acknowledged that no absolute exclusion of the partnership form from the White rule generally applicable to unincorporated associations is warranted. See, e.g., United States v. Cogan, 257 F.Supp. 170, 173—174 (S.D.N.Y.1966); In re Subpoena Duces Tecum, 81 F.Supp. 418, 421 (N.D.Cal.1948).
18
In this case, however, we are required to explore the outer limits of the analysis of the Court in White. Petitioner argues that in view of the modest size of the partnership involved here, it is unrealistic to consider the firm as an entity independent of its three partners; rather, he claims, the law firm embodies little more than the personal legal practice of the individual partners. Moreover, petitioner argues that he has a substantial and direct ownership interest in the partnership records, and does not hold them in a representative capacity.2
19
Despite the force of these arguments, we conclude that the lower courts properly applied the White rule in the circumstances of this case. While small, the partnership here did have an established institutional identity independent of its individual partners. This was not an informal association or a temporary arrangement for the undertaking of a few projects of short-lived duration. Rather, the partnership represented a formal institutional arrangement organized for the continuing conduct of the firm's legal practice. The partnership was in existence for nearly 15 years prior to its voluntary dissolution.3 Although it may not have had a formal constitution or bylaws to govern its internal affairs, state partnership law imposed on the firm a certain organizational structure in the absence of any contrary agreement by the partners;4 for example, it guaranteed to each of the partners the equal right to participate in the management and control of the firm, Pa.Stat.Ann., Tit. 59, § 51(e) (1964), and prescribed that majority rule governed the conduct of the firm's business, § 51(h).5 The firm maintained a bank account in the partnership name, had stationery using the firm name on its letterhead, and, in general, held itself out to third parties as an entity with an independent institutional identity. It employed six persons in addition to its partners, including two other attorneys who practiced law on behalf of the firm, rather than as individuals on their own behalf. It filed separate partnership returns for federal tax purposes, as required by § 6031 of the Internal Revenue Code, 26 U.S.C. § 6031.6 State law permitted the firm to be sued, Pa.Rule Civ.Proc. 2128, and to hold title to property, Pa.Stat.Ann., Tit. 59, § 13(3), in the partnership name, and generally regarded the partnership as a distinct entity for numerous other purposes.7
20
Equally important, we believe it is fair to say that petitioner is holding the subpoenaed partnership records in a representative capacity.8 The documents which petitioner has been ordered to produce are merely the financial books and records of the partnership.9 These reflect the receipts and disbursements of the entire firm, including income generated by and salaries paid to the employees of the firm, and the financial transactions of the other partners. Petitioner holds these records subject to the rights granted to the other partners by state partnership law: Petitioner has no direct ownership interest in the records; rather, under state law, they are partnership property, and petitioner's interest in partnership property is a derivative interest subject to significant limitations. See Ellis v. Ellis, 415 Pa. 412, 415—416, 203 A.2d 547, 549—550 (1964). Petitioner has no right to use this property for other than partnership purposes without the consent of the other partners. Pa.Stat.Ann., Tit. 59, § 72(2)(a). Petitioner is of course accountable to the partnership as a fiduciary, § 54(1), and his possession of the firm's financial records is especially subject to his fiduciary obligations to the other partners. Indeed, Pennsylvania law specifically provides that 'every partner shall at all times have access to and may inspect and copy any of (the partnership books).' § 52.10 To facilitate this right of access, petitioner was required to keep these financial books and records at the firm's principal place of business, at least during the active life the partnership. Ibid. The other partners in the firm were—and still are—entitled to enforce these rights through legal action by demanding production of the records in a suit for a formal accounting. § 55.11
21
It should be noted also that petitioner was content to leave these records with the other members of the partnership at their principal place of business for more than three years after he left the firm. Moreover, the Government contends that the other partners in the firm had agreed to turn the records over to the grand jury before discovering that petitioner had removed them from their offices, and that they made an unavailing demand upon petitioner to return the records. Whether or not petitioner's present possession of these records is an unlawful infringement of the rights of the other partners, this provides additional support for our concusion that it is the organizational character of the records and the representative aspect of petitioner's present possession of them which predominates over his belatedly discovered personal interest in them.
22
Petitioner relies heavily on language in the Court's opinion in White which suggests that the 'test' for determining the applicability of the Fifth Amendment privilege in this area is whether the organization 'has a character so impersonal in the scope of its membership and activities that it cannot be said to embody or represent the purely private or personal interests of its constituents, but rather to embody their common or group interests only.' 322 U.S., at 701, 64 S.Ct., at 1252. We must admit our agreement with the Solicitor General's observation that 'it is difficult to know precisely what situations the formulation in White was intended to include within the protection of the privilege.' Brief for United States 21. The Court in White, after stating its test, did not really apply it, nor has any of the subsequent decisions of this Court. On its face, the test is not particularly helpful in the broad range of cases, including this one, where the organization embodies neither 'purely . . . personal interests' nor 'group interests only,' but rather some combination of the two.
23
In any event, we do not believe that the Court's formulation in White can be reduced to a simple proposition based solely upon the size of the organization. It is well settled that no privilege can be claimed by the custodian of corporate records, regardless of how small the corporation may be. Grant v. United States, 227 U.S. 74, 33 S.Ct. 190, 57 L.Ed. 423 (1913); Fineberg v. United States, 393 F.2d 417, 420 (CA9 1968); Hair Industry, Ltd. v. United States, 340 F.2d 510 (CA2 1965); cf. George Campbell Painting Corp. v. Reid, 392 U.S. 286, 88 S.Ct. 1978, 20 L.Ed.2d 1094 (1968). Every State has now adopted laws permitting incorporation of professional associations, and increasing numbers of lawyers, doctors, and other professionals are choosing to conduct their business affairs in the corporate form rather than the more traditional partnership. Whether corporation or partnership, many of these firms will be independent entities whose financial records are held by a member of the firm in a representative capacity. In these circumstances, the applicability of the privilege should not turn on an insubstantial difference in the form of the business enterprise. See In re Grand Jury Subpoena Duces Tecum, 358 F.Supp. 661, 668 (D.C.Md.1973).
24
This might be a different case if it involved a small family partnership, see United States v. Slutsky, 352 F.Supp. 1105 (S.D.N.Y.1972); In re Subpoena Duces Tecum, 81 F.Supp., at 421, or, as the Solicitor General suggests, Brief for United States 22 23, if there were some other pre-existing relationship of confidentiality among the partners. But in the circumstances iof this case, petitioner's possession of the parnership's financial records in what can be fairly said to be a representative capacity compels our holding that his personal privilege against compulsory self-incrimination is inapplicable.
25
Affirmed.
26
Jr. Justice DOUGLAS dissenting.
27
Bellis, the petitioner, was formerly one of three partners in a small law firm; the partnership was dissolved, and Bellis currently has lawful possession of the firm's records. The grand jury has subpoenaed those records apparently for the purpose of a tax investigation directed against Bellis personally.* He refused to comply, claiming his Fifth Amendment privilege against self-incrimination, but the Court today holds that privilege not available to Bellis. I think the case is clearly controlled by Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, and thus I dissent.
28
In Boyd the Court held that the Fifth Amendment privilege extends to the production of papers personally held as well as to the compulsion of testimony. '(W)e 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.' 116 U.S., at 633, 6 S.Ct., at 534. In purporting to distinguish this case from Boyd, the Court relies on United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542, involving a subpoena directed to a union, not to any individual, for the production of official union documents. White in turn relied on cases holding that the privilege against self-incrimination is a personal one, which can be claimed only by natural persons, and not by corporations. Id., at 699, 64 S.Ct., at 1251, citing Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652; Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771; Essgee Co. v. United States, 262 U.S. 151, 43 S.Ct. 514, 67 L.Ed. 917. '(T)he papers and effects which the privilege protects must be the private property of the person claiming the privilege, or at least in his possession in a purely personal capacity.' White, supra, 322 U.S. at 699, 64 S.Ct., at 1251.
29
In extending these corporation cases to the union papers involved in White, we stressed that the test is not a mechanical one, but 'whether one can fairly say under all the circumstances that a particular type of organization has a character so impersonal in the scope of its membership and activities that it cannot be said to embody or represent the purely private or personal interests of its constituents, but rather to embody their common or group interests only.' Id., at 701, 64 S.Ct., at 1252. In finding that the union was such an impersonal organization, the court pointed out that the union's existence is not dependent upon the life of any member, that it separately owns property apart from any of its members or officers, that its treasury exists apart from the personal funds of its members, and that without special authorization no member can bind the union. Id., at 701—702, 64 S.Ct., at 1252, 1253. None of these factors is present here in this small three-man law firm. Pennsylvania, as have most States, has adopted the Uniform Partnership Act, Pa.Stat.Ann., Tit. 59, § 1. This partnership would dissolve automatically upon the death of any member, § 93, and any partner can bind the entire partnership in the conduct of its affairs, § 31. No new member can join without unanimous consent of the partners, § 51(g). In Pennsylvania as in many States a partnership can hold and sell property in its own name, Pa.Stat.Ann., Tit. 15, § 12773; Pa.Stat.Ann., Tit. 59, § 13, but each partner individually is a co-owner of that property, § 72, and in many substantive legal respects the ownership by the partnership is different in kind from ordinary ownership of property. Any legal liabilities arising from property owned by the partnership, of course, extend to the partners individually if the common partnership assets are exhausted, § 37.
30
I would treat a partnership, as Boyd treated it. This partnership is as different from a labor union or the run of corporations as black if from white. By the Court's opinion a man and wife who form a law partnership or medical partnership or dental partnership are treated as some kind of new 'entity' so as to expand the power of government into an area from which the Fifth Amendment excludes it. The nature of a partnership is not even a federal question; it turns on its creator, the State. Pennsylvania tells us by its Supreme Court that a Pennsylvania partnership 'is treated as an aggregate of individuals and not as a separate entity.' Tax Review Board v. Shapiro Co., 409 Pa. 253, 260, 185 A.2d 529, 533. For federal income tax purposes the partnership pays no tax, it is merely the conduit through which income passes to the taxpaying partners. Internal Revenue Code §§ 701, 702, 26 U.S.C. §§ 701, 702.
31
The majority refers to large law firms or brokerage houses as examples of partnerships which take on the characteristics of independent entities in the manner of corporations. None that I know could properly be considered an organization with 'a character so impersonal in the scope of its membership and activities that it cannot be said to embody or represent the purely private or personal interests of its contituents,' White, supra, 322 U.S. at 701, 64 S.Ct. at 1252. That certainly is not the case presented here. At times the law may treat unlikes as if they were alike; but it surpasses understanding when a two-or three-man partnership is treated the same as members or officers of a giant corporation or a giant union. See United States v. Cogan, 257 F.Supp. 170 (S.D.N.Y.1966) (Frankel, J.). This small three-man firm had no real existence apart from the three individual attorneys.
32
All this only goes to demonstrate that Bellis was not holding the records involved here as a representative of some separate, impersonal entity with no rights under the Fifth Amendment. The records he holds are his own, in both a legal and a practical sense. Nor could the grand jury investigation result in any finding of tax liability by the partnership as a separate entity, for the partnership has no tax obligations other than the filing of informational forms that aid in determining the liabilities of the individual partners. It was only Bellis individually, or his two former partners, against whom the investigation could have been directed. If Bellis had been conducting a solo practice, his claim of privilege could not be overridden, as the Government here necessarily conceded. I am unable to perceive why he should be held to have forfeited that constitutional right by joining with two others in a partnership.
33
Indeed, the significance of the distinction is so obscure that the Court did not even see fit to notice it in Boyd itself, where in fact the subpoena was directed at a partnership and not an individual. As the Government here concedes, Brief for United States 14 n. 10, both parties and the Court assumed in Boyd that the partnership documents there sought were personal property.
34
'This command of the Fifth Amendment . . . registers an important advance in the development of our liberty—'one of the great landmarks in man's struggle to make himself civilized.' Time has not shown that protection from the evils against which this safeguard was directed is needless or unwarranted. This constitutional protection must not be interpreted in a hostile or niggardly spirit.' Ullmann v. United States, 350 U.S. 422, 426, 76 S.Ct. 497, 500, 100 L.Ed. 511. But it is the nigardly view which prevails today, with the Court effectively overruling Boyd in holding that the Government can compel an individual to produce his private records to aid a Government investigation of him. That is a view I cannot join.
1
Although the wording of the subpoena was arguably broad enough to encompass them, the District Court expressly excluded any client files from the scope of its order.
2
Petitioner also argues that we have already decided the issue presented in this case, and held that the Fifth Amendment privilege could be claimed with respect to partnership records, in the Boyd case. It is true that the notice to produce involved in Boyd was in fact issued to E. A. Boyd & Sons, a partnership. See 116 U.S. 616, 619, 6 S.Ct. 524, 526, 29 L.Ed. 746. However, at this early stage in the development of our Fifth Amendment jurisprudence, the potential significance of this fact was not observed by either the parties or the Court. The parties treated the invoice at issue as a private business record, and the contention that it might be a partnership record held in a representative capacity and thus not within the scope of the privilege, was not raised. The Court therefore decided the case on the premise that it involved the 'compulsory production of a man's private papers.' Id., at 622, 6 S.Ct., at 528. It was only after Boyd had held that the Fifth Amendment privilege applied to the compelled production of documents that the question of the extension of this principle to the records of artificial entities arose. We do not believe that the Court in Boyd can be said to have decided the issue presented today. See United States v. Onassis, 125 F.Supp. 190, 208 (DC 1954).
In any event, the Court in Boyd did not inquire into the nature of the Boyd & Sons partnership or the capacity in which the invoice was acquired or held. Absent such an inquiry, we are unable to determine how out decision today would affect the result of Boyd on the facts of that case. See infra, at 101.
3
Petitioner properly concedes that the dissolution of the partnership does not afford him any greater claim to the privilege than he would have if the firm were still active. Brief for Petitioner 31 n. 12. Under Pennsylvania law, dissolution of the partnership does not terminate the entity; rather it continues until the winding up of the partnership affairs is completed, Pa.Stat.Ann., Tit. 59, § 92 (1964), which has not yet occurred in this case. Moreover, this Court's decisions have made clear that the dissolution of a corporation does not give the custodian of the corporate records any greater claim to the Fifth Amendment privilege. Wheeler v. United States, 226 U.S. 478, 489—490, 33 S.Ct. 158, 162, 57 L.Ed. 309 (1913); Grant v. United States, 227 U.S. 74, 80, 33 S.Ct. 190, 192, 57 L.Ed. 423 (1913). We see no reason why the same should not be true of the records of a partnership after its dissolution.
4
The record in this case is quite sketchy, and it is unclear whether the partnership here had adopted a formal partnership agreement. Petitioner apparently had a 45% interest in the profits of the firm, which suggests that there may have been such an agreement. However, there is no indication that any such agreement made any material change in the provisions of state law regarding the management and control of the firm or the rights of the other partners with respect to the firm's financial records. In any event, the existence of a formal partnership agreement would merely reinforce our conclusion that the partnership is properly regarded as an independent entity with a relatively formal organization.
5
Pennsylvania has adopted the provisions of the Uniform Partnership Act, which is also in force in 40 other States and the District of Columbia.
6
As we observed only last Term, a 'partnership is regarded as an independently recognizable entity apart from the aggregate of its partners' for a number of purposes under the Internal Revenue Code. United States v. White, 322 U.S. 694, 697, 64 S.Ct. 1248, 1250, 88 L.Ed. 1542 (1944).
7
Of course, state and federal law do not treat partnerships as distinct entities for all purposes. But we think that partnerships bear enough of the indicia of legal entities to be treated as such for the purpose of our analysis of the Fifth Amendment issue presented in this case. The fact that partnerships are not viewed solely as entities is immaterial for this purpose. See United States v. White, 322 U.S. 694, 697, 64 S.Ct. 1248, 1250, 88 L.Ed. 1542 (1944).
8
Petitioner argues that as a partner in the firm, he has an interest in the firm's records as co-owner which entitles him to claim the privilege against self-incrimination. But such an ownership interest exists in a partnership of any size. Moreover, the same ownership interest is presented in the case of a labor union or other unincorporated association. The Court's decision in White clearly established that the mere existence of such an ownership interest is not in itself sufficient to establish a claim of privilege. See also Wheeler v. United States, 226 U.S., at 489—490, 33 S.Ct., at 162; Grant v. United States, 227 U.S., at 79—80, 33 S.Ct., at 192.
Mr. Justice DOUGLAS argues in dissent that the partnership as an entity is not under investigation by the grand jury, rather that petitioner is the target of the inquiry. Assuming that this is true, it does not give petitioner any greater claim to the privilege. We have rejected this same argument in holding that the privilege cannot be maintained with respect to corporate records, in words fully applicable here:
'Nor is it an answer to say that in the present case the inquiry before the grand jury was not directed against the corporation itself. The appellant had no greater right to withhold the books by reason of the fact that the corporation was not charged with criminal abuses. That, if the corporation had been so charged, he would have been compelled to submit the books to inspection, despite the consequences to himself, sufficiently shows the absence of any basis for a claim on his part of personal privilege as to them; it could not depend upon the question whether or not another was accused.' Wilson v. United States, 221 U.S. 361, 385, 31 S.Ct. 538, 546, 55 L.Ed. 771 (1911).
9
Significantly, the District Court here excluded any client files from the scope of its order. See n. 1, supra. A different case might be presented if petitioner had been ordered to produce files containing work which he had personally performed on behalf of his clients, even if these files might for some purposes be viewed as those of the partnership.
10
The Court in White, in pointing out that union records were generally open to inspection by the members, 322 U.S., at 699 700, 64 S.Ct., at 1251—1252, relied upon Guthrie v. Harkness, 199 U.S. 148, 153, 26 S.Ct. 4, 5, 50 L.Ed. 130 (1905), where the Court observed that 'the members of an ordinary partnership (have the same right) to examine their company's books.'
11
The implement these rights, Pennsylvania law permits any partner to bring suit against the partnership, and the partnership to sue any partner. Pa.Rule Civ.Proc. 2129.
*
See App. 24; Tr. of Oral Arg. 8.
| 01
|
417 U.S. 279
94 S.Ct. 2246.
41 L.Ed.2d 68
Richard E. GERSTEIN et al.v.Nancy COE et al.
No. 73—1157.
June 3, 1974.
PER CURIAM.
1
A three-judge District Court entered a declaratory judgment holding unconstitutional a Florida statute, Fla.Stat.Ann. § 458.22(3) (Supp.1974—1975), which forbids an abortion without the consent of the husband, if the woman is married, and if unmarried and under the age of 18, without the consent of a parent. Because it was anticipated that the State would respect the declaratory judgment, the court declined to issue an injunction against the enforcement of the statute. The State of Florida appeals from the declaratory judgment invalidating the statute. The appeal is dismissed for want of jurisdiction. Title 28 U.S.C. § 1253, under which this appeal is sought to be taken, does not authorize an appeal from the grant or denial of declaratory relief alone. 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); Rockefeller v. Catholic Medical Center of Brooklyn & Queens, Inc., Division of St. Mary's Hospital, 397 U.S. 820, 90 S.Ct. 1517, 25 L.Ed.2d 806 (1970); see also Roe v. Wade, 410 U.S. 113, 123, 93 S.Ct. 705, 711, 33 L.Ed.2d 147 (1973). The declaratory judgment is appealable to the Court of Appeals, and we are informed that an appeal to that court has already been taken. It is suggested that we treat the statement of jurisdiction as a petition for certiorari before judgment to the Court of Appeals pursuant to 28 U.S.C. § 1254(1). The petition for certiorari is denied.
2
Appeal dismissed; petition for certiorari denied.
| 89
|
417 U.S. 281
94 S.Ct. 2247
41 L.Ed.2d 70
Paula POE et al.v.Richard E. GERSTEIN.
No. 73—1283.
June 3, 1974.
PER CURIAM.
1
A three-judge District Court entered a declaratory judgment holding unconstitutional a Florida statute, Fla.Stat.Ann. § 458.22(3) (Supp.1974—1975), which forbids an abortion without the consent of the husband, if the woman is married, and if unmarried and under the age of 18, without the consent of a parent. Because it was anticipated that the State would respect the declaratory judgment, the court declined to issue an injunction against the enforcement of the statute. The plaintiffs in the District Court are appellants here and challenge the refusal to issue the injunction. The judgment of the District Court is affirmed in this respect. Whether or not the declaratory judgment was itself properly issued, a question on which we intimate no opinion, the District Court properly refused to issue the injunction; for there was 'no allegation here and no proof that respondents would not, nor can we assume that they will not, acquiesce in the decision . . . holding the challenged ordinance unconstitutional.' Douglas v. City of Jeannette, 319 U.S. 157, 165, 63 S.Ct. 877, 881, 87 L.Ed. 1324 (1943). This aspect of Douglas v. City of Jeannette has been repeatedly recognized in later cases. Dombrowski v. Pfister, 380 U.S. 479, 484—485, 85 S.Ct. 1116, 1119—1120, 14 L.Ed.2d 22 (1965); Zwickler v. Koota, 389 U.S. 241, 253—254, 88 S.Ct. 391, 398, 19 L.Ed.2d 444 (1967); Roe v. Wade, 410 U.S. 113, 166—167, 93 S.Ct. 705, 733, 35 L.Ed.2d 147 (1973). It is unnecessary to deal separately with the question whether the District Court was correct in denying intervention in the District Court to other parties who are appellants here; for assuming they are to be considered proper parties in the District Court and in this Court, we would affirm the denial of the injunction as to them for the same reasons we affirm the denial of such relief to appellants who were plaintiffs below.
2
So ordered.
3
Denial of injunction affirmed.
| 45
|
417 U.S. 211
94 S.Ct. 2253
41 L.Ed.2d 20
William N. ANDERSON et al., Petitioners,v.UNITED STATES.
No. 73—346.
Argued March 19, 1974.
Decided June 3, 1974.
Syllabus
For having conspired to cast fictitious votes for federal, state, and local candidates in a West Virginia primary election, petitioners were convicted of violating 18 U.S.C. § 241, which makes it unlawful to conspire to injure any citizen in the free exercise or enjoyment of any right or privilege secured by the Constitution or laws of the United States. At the trial, over petitioners' objections, certain statements made by two of the petitioners at a local election contest hearing held after the election results had been certified, on May 27, 1970, were admitted in evidence against all the petitioners to prove that the two petitioners making the statements had perjured themselves at the election contest hearing. On appeal, the petitioners contended for the first time that § 241 was limited to conspiracies to cast false votes in federal elections, and that accordingly the conspiracy charged in their case, as far as federal jurisdiction was concerned, ended on May 27, so that subsequent out-of-court statements could not have furthered any § 241 conspiracy and hence should not have been admitted in evidence. The Court of Appeals rejected these contentions, and affirmed the convictions. Held:
1. The out-of-court statements were admissible under basic principles of the law of evidence and conspiracy, regardless of whether or not § 241 encompasses conspiracies to cast fraudulent votes in state and local elections. Pp. 214—222.
(a) The statements were not hearsay, since they were not offered in evidence to prove the truth of the matter asserted; hence their admissibility was governed by the rule that acts of one alleged conspirator can be admitted into evidence against the other conspirators, if relevant to prove the existence of the conspiracy, even though they may have occurred after the conspiracy ended. Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593. Pp. 219—221.
(b) Since the statements were not hearsay, the jury did not have to make a preliminary finding that the conspiracy charged was still in progress before it could consider them as evidence against the other defendants, and accordingly the statements were admissible if relevant to prove the conspiracy charged. P. 221.
(c) Even if the federal conspiracy ended on May 27, the fact that two of the petitioners perjured themselves at the local election contest hearing was relevant and admissible to prove the underlying motive of the conspiracy. Accordingly, in order to rule on petitioners' challenge to the admissibility of this evidence, there was no need for the Court of Appeals, and there is no need for this Court, to decide whether petitioners' conspiracy ended on May 27 for purposes of federal jurisdiction or whether § 241 applies to conspiracies to cast fraudulent votes in local elections. Pp. 221—222.
2. The evidence amply supports the verdict that each of the petitioners engaged in the conspiracy with the intent of having false votes cast for the federal candidates. Pp. 222—228.
(a) The fact that petitioners' primary motive was to affect the result in the local rather than the federal election has no significance, since although a single conspiracy may have several purposes, if one of them—whether primary or secondary—violates a federal law, the conspiracy is unlawful under federal law. Pp. 225 226.
(b) That the petitioners may have had no purpose to change the outcome of the federal election is irrelevant, since that is not the specific intent required under § 241, but rather the intent to have false votes cast and thereby to injure the right of all voters in a federal election to have their expressions of choice given full value, without dilution or distortion by fraudulent balloting. Pp. 226—227.
(c) Even assuming, arguendo, that § 241 is limited to conspiracies to cast false votes for federal candidates, it was not plain error for the District Court's jury instructions not to focus specifically upon the federal conspiracy, since in view of the fact that the prosecution's case showed a single conspiracy to cast entire slates of false votes and the defense consisted primarily of a challenge to the Government witnesses' credibility, it is inconceivable that, even if charged by more specific instructions, the jury could have found a conspiracy to cast false votes for local offices without also finding a similar conspiracy affecting the federal offices. Pp. 227—228.
481 F.2d 685, affirmed.
David Ginsburg, Washington, D.C., for petitioners.
Lawrence G. Wallace, Washington, D.C., for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
Petitioners were convicted of violating 18 U.S.C. § 241, which, in pertinent part, makes it unlawful for two or more persons to 'conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States . . ..' Specifically, the Government proved that petitioners engaged in a conspiracy to cast fictitious votes for candidates for federal, state, and local offices in a primary election in Logan County, West Virginia. At the trial, a question arose concerning the admissibility against all of the petitioners of certain out-of-court statements made by some of them. In considering the propriety of the District Court's decision to admit this evidence, the Court of Appeals thought it necessary to resolve the question whether a conspiracy to cast false votes in a state or local election, as opposed to a conspiracy to cast false votes in a federal election, is unlawful under § 241. The Court of Appeals affirmed petitioners' convictions, concluding that § 241 encompasses 'conspiracies, involving state action at least, to dilute the effect of ballots cast for the candidate of one's choice in wholly state elections.' 481 F.2d 685, 700—701 (1973). We granted certiorari to consider this question. 414 U.S. 1091, 94 S.Ct. 720, 38 L.Ed.2d 548 (CA4 1973). It now appears, however, that the out-of-court statements at issue were admissible under basic principles of the law of evidence and conspiracy, regardless of whether or not § 241 encompasses conspiracies to cast fraudulent votes in state and local elections. Accordingly we affirm the judgment of the Court of Appeals without passing on its interpretation of § 241.
2
* The underlying facts are not in dispute. On May 12, 1970, a primary election was held in West Virginia for the purpose of nominating candidates for the United States Senate, United States House of Representatives, and various state and local offices. One of the nominations most actively contested in Logan County was the Democratic nomination for County Commissioner, an office vested with a wide variety of legislative, executive, and judicial powers.1 Among the several candidates for the Democratic nomination for this office were the incumbent, Okey Hager, and his major opponent, Neal Scaggs.
3
Petitioners are state or county officials, including the Clerk of the Logan County Court, the Clerk of the County Circuit Court, the Sheriff and Deputy Sheriff of the County, and a State Senator. The evidence at trial showed that by using the power of their office, the petitioners convinced three election officals in charge of the Mount Gay precinct in Logan County to cast false and fictitious votes on the voting machines and then to destroy poll slips so that the number of persons who had actually voted could not be determined except from the machine tally.2 While it is apparent from the record that the primary purpose behind the casting of false votes was to secure the nomination of Hager for the office of County Commissioner, it is equally clear that about 100 false votes were in fact cast not only for Hager, but also for Senator Robert Byrd and Representative Ken Hechler, who appeared on the ballot for renomination to their respective chambers of the United States Congress, as well as for other state and local candidates considered part of the Hager slate.3
4
The conspiracy achieved its primary objective, the countywide vote totals showing Hager the winner by 21 votes, counting the Mount Gay precinct returns. About two weeks after the election, on May 27, 1970, the election results were certified. After that date, Scaggs filed an election contest4 challenging certain returns, including the Mount Gay County Commissioner votes. No challenge was made, however, to the Mount Gay votes for either of the federal offices, and they became final on May 27.
5
A hearing was held in the County Court on the election contest at which petitioners Earl Tomblin and John R. Browning gave sworn testimony. The prosecution in the § 241 trial sought to prove that Tomblin and Browning perjured themselves at the election contest hearing in a continuing effort to have the fraudulent votes for Hager counted and certified. For example, one of the key issues in the election contest was whether sufficient voters had in fact turned out in Mount Gay precinct to justify the unusually high reported returns. Tomblin testified under oath at the election contest that he had visited Mount Gay precinct on election day and had observed one Garrett Sullins there as Sullins went in to vote. The prosecution at the $241 trial, however, offered testimony from Sullins himself that he was in the hospital and never went to the Mount Gay precinct on election day.
6
At trial, the other defendants objected to the introduction of Tomblin's prior testimony on the ground that it was inadmissible against anyone but Tomblin. The District Court overruled the objection but instructed the jury that Tomblin's testimony could be considered only as bearing upon his guilt or innocence, unless the jury should determine that at the time Tomblin gave this testimony, a conspiracy existed between him and the other defendants and that the testimony was made in furtherance of the conspiracy, in which case the jury could consider the testimony as bearing upon the guilt or innocence of the other defendants. A similar objection was made to the introduction of Browning's election contest testimony and a similar cautionary instruction given when that objection was overruled.
7
In oral argument before the Court of Appeals, petitioners for the first time5 sought to link their objection to the introduction of this evidence to a particular interpretation of § 241. See 481 F.2d, at 694. Specifically, petitioners argued that § 241 was limited to conspiracies to cast false votes in federal elections and did not apply to local elections. Accordingly, they contended that the conspiracy in the present case, so far as federal jurisdiction was concerned, ended on May 27, 1970, the date on which the election returns were certified and the federal returns became final. Statements made after this date by one alleged conspirator, the argument continued, could not, as a matter of law, have been made in furtherance of the conspiracy charged under § 241 and therefore should not have been considered by the jury in determining the guilt or innocence of the other defendants.
8
The Government countered before the Court of Appeals that, whether the federal conspiracy had ended or not, the election contest testimony of Tomblin and Browning was admissible under the principles enunciated in Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953). The Court of Appeals, however, decided not to tarry over this point and instead, in its own words, chose 'to meet directly the contention that federal jurisdiction over the alleged conspiracy ended with the certification in the federal election contests . . ..' See 481 F.2d, at 698. We think it inadvisable, however, to reach out in this fashion to pass on important questions of statutory construction when simpler, and more settled, grounds are available for deciding the case at hand. In our view, the basic principles of evidence and conspiracy law set down in Lutwak are dispositive of petitioners' evidentiary claims.
9
The doctrine that declarations of one conspirator may be used against another conspirator, if the declaration was made during the course of and in furtherance of the conspiracy charged, is a well-recognized exception to the hearsay rule which would otherwise bar the introduction of such out-of-court declarations. See Lutwak v. United States, supra, 344 U.S., at 617, 73 S.Ct., at 489. See also Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949). The hearsay-conspiracy exception applies only to declarations made while the conspiracy charged was still in progress, a limitation that this Court has 'scrupulously observed.'6 See Krulewitch v. United States, supra, at 443—444, 69 S.Ct., at 718—719. See also Lutwak v. United States, supra, 344 U.S., at 617 618, 73 S.Ct., at 489—490; Fiswick v. United States, 329 U.S. 211, 217, 67 S.Ct. 224, 227, 91 L.Ed. 196 (1946); Wong Sun v. United States, 371 U.S. 471, 490, 83 S.Ct. 407, 418—419, 9 L.Ed.2d 441 (1963).
10
But, as the Court emphasized in Lutwak, the requirement that out-of-court declarations by a conspirator be shown to have been made while the conspiracy charged was still in progress and in furtherance thereof arises only because the declaration would otherwise be hearsay. The ongoing conspiracy requirement is therefore inapplicable to evidence, such as that of acts of alleged conspirators, which would not otherwise be hearsay. Thus the Court concluded in Lutwak that acts of one alleged conspirator could be admitted into evidence against the other conspirators, if relevant to prove the existence of the conspiracy, 'even though they might have occurred after the conspiracy ended.' 344 U.S., at 618, 73 S.Ct., at 489. See also United States v. Chase, 372 F.2d 453 (CA4 1967); Note, Developments in the Law—Criminal Conspiracy, 72 Harv.L.Rev. 920, 988 (1959).
11
The obvious question that arises in the present case, then, is whether the out-of-court statements of Tomblin and Browning were hearsay. We think it plain they were not. Out-of-court statements constitute hearsay only when offered in evidence to prove the truth of the matter asserted.7 The election contest testimony of Tomblin and Browning, however, was not admitted into evidence in the § 241 trial to prove the truth of anything asserted therein. Quite the contrary, the point of the prosecutor's introducing those statements was simply to prove that the statements were made8 so as to establish a foundation for later showing, through other admissible evidence, that they were false.9 The rationale of the hearsay rule is inapplicable as well. The primary justification for the exclusion of hearsay is the lack of any opportunity for the adversary to cross-examine the absent declarant whose out-of-court statement is introduced into evidence.10 Here, since the prosecution was not contending that anything Tomblin or Browning said at the election contest was true, the other defendants had no interest in cross-examining them so as to put their credibility in issue.11 Cf. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
12
Since these prior statements were not hearsay, the jury did not have to make a preliminary finding that the conspiracy charged under § 241 was still in progress before it could consider them as evidence against the other defendants. The prior testimony was accordingly admissible simply if relevant in some way to prove the conspiracy charged. See Lutwak v. United States, 344 U.S., at 617, 73 S.Ct., at 489.
13
As we read the record, there can be no doubt that the evidence of perjury by petitioners Tomblin and Browning in the election contest was relevant to make out the Government's case under § 241, even assuming, arguendo, that the petitioners' conspiracy ended, for purposes of federal jurisdiction, on May 27, 1970, with the certification of the federal election returns. For even if federal jurisdiction rested only on that aspect of the conspiracy involving the federal candidates, the proof at trial need not have been so limited. The prosecution was entitled to prove the underlying purpose and motive of the conspirators in order to convince the jury, beyond a reasonable doubt, that petitioners had in fact unlawfully conspired to cast false votes in the election. See Lutwak v. United States, supra, at 617, 73 S.Ct., at 489. As it was never suggested that either Senator Byrd or Representative Hechler needed or sought the assistance of an unlawful conspiracy in order to win his respective nomination, a key issue in this prosecution, accepting for the sake of argument petitioners' view of § 241, was whether and why petitioners conspired to have false votes cast for these federal candidates. The fact that two of the petitioners perjured themselves at an election contest in which the Mount Logan votes for Hager were at stake helped prove the underlying motive of the conspiracy, by demonstrating that the false votes for federal officers were not an end in themselves, but rather part of a conspiracy to obtain Hager's nomination through unlawful means. The jury could have inferred that the petitioners were motivated in casting false federal ballots by the need to conceal the fraudulent votes for Hager, since the casting of large numbers of false ballots for County Commissioner would likely have aroused suspicion in the absence of the casting of a similar number of false votes for the other offices at issue in the election.
14
Even if the federal conspiracy ended on May 27, then, the Tomblin and Browning election contest testimony was relevant to prove the offense charged. Accordingly, in order to rule on petitioners' challenge to the admissibility of this evidence, there was no need for the Court of Appeals, and there is no need for us, to decide whether petitioners' conspiracy ended on May 27 for purposes of federal jurisdiction or whether § 241 applies to conspiracies to cast fraudulent votes in local elections.
II
15
Petitioners argue, however, that the evidence at trial was insufficient to show that they had engaged in a conspiracy to cast false votes for the federal officers and that their convictions under § 241 can stand only if we hold that section applicable to a conspiracy to cast false votes in a local election.12 Our examination of the record leads us to conclude otherwise.
16
Two principles form the backdrop for our analysis of the record. It is established that since the gravamen of the offense under § 241 is conspiracy, the prosecution must show that the offender acted with a specific intent to interfere with the federal rights in question. See United States v. Guest, 383 U.S. 745, 753—754, 86 S.Ct. 1170, 1175—1176, 16 L.Ed.2d 239 (1966); Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945). Moreover, we scrutinize the record for evidence of such intent with special care in a conspiracy case for, as we have indicated in a related context, 'charges of conspiracy are not to be made out by piling inference upon inference, thus fashioning . . . a dragnet to draw in all substantive crimes.' Direct Sales Co. v. United States, 319 U.S. 703, 711, 63 S.Ct. 1265, 1269, 87 L.Ed. 1674 (1943). See also Ingram v. United States, 360 U.S. 672, 680, 79 S.Ct. 1314, 1320, 3 L.Ed.2d 1503 (1959).
17
Even with these caveats in mind, we find the record amply bears out the verdict that each of the petitioners engaged in the conspiracy with the intent of having false votes cast for the federal officers. The Government's chief witness was Cecil Elswick, an unindicted coconspirator who served as the Republican election officer at the Mount Gay precinct and who actually cast most of the fraudulent votes. Elswick testified that he was first approached by petitioner Red Hager, the son of Okey Hager, who told Elswick to go along with them to win the Mount Gay precinct or else he, Red Hager, would cause Elswick trouble. When asked on direct examination for whom he was told to win the precinct, Elswick testified: 'For the Okey Hager slate and Senator Byrd and Ken Hechler.' App. 40. When Elswick expressed an interest in going along, Red Hager arranged for a meeting between Elswick and Tomblin at which Tomblin confirmed an offer of a part-time deputy sheriff job for Elswick as a reward for his help in the election fraud. Elswick later met with petitioner W. Bernard Smith in Tomblin's office, and Smith then instructed him on how to proceed to win the election. The night before the election, Elswick met with all five of the petitioners. At this meeting cash payments for the false votes were discussed and petitioners Smith and Hager emphasized the need for putting 'all the votes' on the machine. Later that evening, Elswick accompanied Tomblin to visit Garrett Sullins, a candidate for justice of the peace listed on the Hager slate. Tomblin told Sullins not to worry about his election because they had him 'slated,' so long as Sullins' wife, another Mount Gay precinct election official, would go along with the illegal voting.
18
Elswick then testified as to how he actually put the fraudulent votes on the machines. When a voter came into the precinct and asked for help in using the machines to vote the Neal Scaggs slate, Elswick and Mrs. Sullins would join the voter in the voting machine and, aligning their bodies so as to conceal what they were doing, would put votes on the machine for the entire Hager slate. In addition, Elswick simply went into the voting machine on his own and cast many fictitious ballots. Through a comparison between the reported returns and the number of persons who actually voted, false votes were shown to have been cast for every office—federal, state, and local. See n. 3, supra.
19
We think this evidence amply supported the jury's conclusion that each of the petitioners knowingly participated in a conspiracy which contemplated the casting of false votes for all offices at issue in the election. The evidence at trial tended to show a single conspiracy, the primary objective of which was to have false votes cast for Hager but which also encompassed the casting of false votes for candidates for all other offices, including Senator Byrd and Representative Hechler. True, there was little discussion among the conspirators of the federal votes per se, just as there was little discussion of the Hager votes in and of themselves, but the jury could believe this was only a reflection of the conspirators' underlying assumption that false votes would have to be cast for entire slates of candidates in order to have their fraud go undetected.
20
In our view, petitioners err in seeking to attach significance to the fact that the primary motive behind their conspiracy was to affect the result in the local rather than the federal election. A single conspiracy may have several purposes, but if one of them—whether primary or secondary—be the violation of a federal law, the conspiracy is unlawful under federal law. See Ingram v. United States, 360 U.S., at 679—680, 79 S.Ct., at 1319—1320. It has long been settled that § 241 embraces a conspiracy to stuff the ballot box at an election for federal officers, and thereby to dilute the value of votes of qualified voters; see United States v. Saylor, 322 U.S. 385, 64 S.Ct. 1101, 88 L.Ed. 1341 (1944). See also United States v. Mosley, 238 U.S. 383, 35 S.Ct. 904, 59 L.Ed. 1355 (1915). This applies to primary as well as general elections. See United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941).
21
That petitioners may have had no purpose to change the outcome of the federal election is irrelevant. The specific intent required under § 241 is not the intent to change the outcome of a federal election, but rather the intent to have false votes cast and thereby to injure the right of all voters in a federal election to express their choice of a candidate and to have their expressions of choice given full value and effect, without being diluted or distorted by the casting of fraudulent ballots. See United States v. Saylor, supra, 322 U.S., at 386, 64 S.Ct., at 1102. As one court has stated:
22
'The deposit of forged ballots in the ballot boxes, no matter how small or great their number, dilutes the influence of honest votes in an election, and whether in greater or less degree is immaterial. The right to an honest (count) is a right possessed by each voting elector, and to the extent that the importance of his vote is nullified, wholly or in part, he has been injured in the free exercise of a right or privilege secured to him by the laws and Constitution of the United States.' Prichard v. United States, 181 F.
23
2d 326, 331 (CA6), aff'd due to absence of quorum, 339 U.S. 974, 70 S.Ct. 1029, 94 L.Ed. 1380 (1950).
24
Every voter in a federal primary election, whether he votes for a candidate with little chance of winning or for one with little chance of losing, has a right under the Constitution to have his vote fairly counted, without its being distorted by fraudulently cast votes. And, whatever their motive, those who conspire to cast false votes in an election for federal office conspire to injure that right within the meaning of § 241.13
25
While the District Court's jury instructions did not specifically focus upon the conspiracy to cast false votes for candidates for federal offices, no objection was made at trial or before the Court of Appeals with respect to this aspect of the instructions. See Johnson v. United States, 318 U.S. 189, 200, 63 S.Ct. 549, 554—555, 87 L.Ed. 704 (1943); Adickes v. S. H. Kress & Co., 398 U.S. 144, 147 n. 2, 90 S.Ct. 1598, 1602—1603, 26 L.Ed.2d 142 (1970). And, even assuming, arguendo, that § 241 is limited to conspiracies to cast false votes for candidates for federal offices, we could find no plain error here. The prosecution's case, as indicated earlier, showed a single conspiracy to cast entire slates of false votes. The defense consisted in large part of a challenge to the credibility of the Government's witnesses, primarily the three unindicted coconspirators. The case therefore ultimately hinged on whether the jury would believe or disbelieve their testimony. Given the record, we think it inconceivable that, even if charged by more specific instructions, the jury could have found a conspiracy to cast false votes for local offices without finding a conspiracy to cast false votes for the federal offices as well.
26
This case is therefore an inappropriate vehicle for us to decide whether a conspiracy to cast false votes for candidates for state or local office, as opposed to candidates for federal office, is unlawful under § 241, and we intimate no views on that question.
27
Affirmed.
28
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN concurs, dissenting.
29
Petitioners were convicted under 18 U.S.C. § 241, which imposes criminal penalties when 'two or more persons conspire to injure . . . any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution . . ..' The Court of Appeals affirmed, 481 F.2d 685, and this Court granted certiorari to consider whether a conspiracy to cast fraudulent votes in a state election, without any evidence of racial discrimination, could constitute a federal offense under § 241. The Court of Appeals reached the substance of this question, holding that the Federal Government had the power under § 241 to punish not only conspiracies to poison federal elections, but also conspiracies in which state officials took part to cast false votes in a state or local election. 481 F.2d at 698—700. The Court today avoids the issue squarely presented by petitioners and by the decision of the Court of Appeals, concluding that it need not reach the issue because the evidence 'bears out the verdict that each of the petitioners engaged in the conspiracy with the intent of having false votes cast for . . . federal officers.'
30
After reviewing the record, I am left with the opinion that the Court, in affirming on the theory that petitioners agreed as a part of their conspiracy to have false votes cast for federal candidates, is convicting the petitioners for an offense for which they were not found guilty by the jury. The instructions to the jury were phrased in a fashion which did not require it to find intent to have false votes cast for federal candidates, so that there is in truth no 'verdict' to that effect. The evidence of intent to have false votes cast for federal candidates is hardly conclusive, so that the failure of the charge to require such a finding could not be deemed harmless error. Fed.Rule Crim.Proc. 52(a).
31
Because it is not clear that petitioners intended that fraudulent votes be cast for federal candidates, and because I believe that § 241 does not reach conspiracies to abscond with state elections, absent the element of racial discrimination, I dissent. The jury instructions, in allowing the jury to convict without finding a conspiracy to interfere with the federal electoral process, were improper, and the error was not harmless.
32
* On May 12, 1970, a primary election was held in West Virginia for the purpose of nominating candidates for the United States Senate and House of Representatives and for various state and local offices, including that of County Commissioner for Logan County. The incumbent Commissioner, Okey Hager, and his challenger, Neal Scaggs, were engaged in a bitter contest for the Democratic nomination for Commissioner. The petitioners, including Okey Hager's son Red Hager, induced election officials, including Cecil Elswick, who later testified for the Government at this trial, to cast false votes for the Okey Hager slate on the voting machines in the Mount Gay, West Virginia, precinct. There is no evidence that the Okey Hager slate included any nominees for federal offices. As the Court acknowledges, 'it is apparent from the record that the primary purpose behind the casting of false votes was to secure the nomination of Hager for the office of County Commissioner.' The Court nonetheless finds that the conspiracy necessarily encompassed an agreement to case fraudulent ballots for the federal offices.
33
As the Court notes, a stringent scienter requirement has been imposed when the Government seeks to prosecute under § 241, requiring proof of 'specific intent' on the part of a conspirator to interfere with a right protected by § 241.1 This standard has required proof that a conspirator acted 'in open defiance or in reckless disregard of a constitutional requirement which has been made specific and definite.'2 in this case, the right to have votes cast in a federal election counted without impairment by fraudulent votes. It is against this exacting standard of specific intent that the actions of each of the conspirators in this case must be measured.
34
From the first, the prosecution in this case proceeded on the theory that casting false votes for state offices would constitute a violation of § 241. The indictment charged that on May 12, 1970, an election was held at Mount Gay to nominate candidates for the offices of United States Senator, Representative to Congress, and various state and county positions. It was charged that the petitioners willfully and knowingly conspired to injure voters in the exercise of their constitutional rights by impairing their right to vote for candidates 'for the aforesaid offices' and to have such votes cast and certified at their full value. Thus the indictment charged a conspiracy in violation of § 241 without distinction between state and federal offices. Efforts on the part of the petitioners to clarify the charges against them were futile. The trial judge denied a motion to dismiss, which argued that the indictment failed to adequately particularize the alleged criminal violation. The petitioners also filed a motion for a bill of particulars which requested an elucidation of the specific acts which formed the basis of the indictment. This motion was also denied, and the case proceeded to trial with an indictment charging, as a federal crime, conspiracy to impair votes for not only federal, but also state offices.
35
The case was tried on the theory that petitioners conspired to secure the nomination of Okey Hager for County Commissioner. There is substantial evidence on the record to demonstrate the existence of this conspiracy, and petitioners necessarily contemplated having false votes cast in the local election to secure Okey Hager's nomination. There is also evidence that Cecil Elswick and others who were at the polling place during the election did in fact cast false votes for federal candidates. There is also evidence that one of the petitioners, Red Hager, did tell Elswick to cast false votes not only for Okey Hager, but also for Senator Byrd and Representative Hechler, candidates running for federal offices. But there is no conclusive evidence in nearly 2,000 pages of transcript that any of the other four petitioners agreed, either with Elswick or with each other, to cast fraudulent votes for the federal candidates.3
36
The prosecution made clear in its closing argument to the jury that the essence of its case was the conspiracy to cast false votes for the local office of County Commissioner. It carefully focused the jury's attention on the fraud committed by the petitioners as regards the state election:
37
'I think from the evidence you can conclude by now that the theory behind the government's case actually is that these votes were cast and counted by going through the contest and all in order to get Okey Hager elected to the County Court, in order to get Red Hager's father elected to the County Court, that these defendants, along with others, got the votes cast and got the votes counted in the long drawnout procedure that was involved over there.'
38
In its charge to the jury, the trial court reinforced this crucial error. In its instructions, reprinted in relevant part in the Appendix to this opinion, the Court never required the jury to find a specific intent to have false votes cast in the federal election contests on the part of each of the conspirators. Throughout its instructions to the jury, the District Court reiterated that the crucial element of the charged crime under § 241 was a conspiracy to 'injure and oppress . . . voters . . . in the . . . enjoyment of . . . the right to vote and to have such votes cast, counted, recorded, and certified at full value.' It stated:
39
'You are instructed that the right to vote and the right to have the value of that vote undiminished and undiluted by the presence of illegal votes is a right guaranteed by the Constitution and laws of the United States within the context of (18 U.S.C. § 241).
40
'. . . (I)f any one or more of the defendants conspired knowingly and intentionally with another defendant or with a co-conspirator to produce the casting and counting of illegal ballots in the 1970 primary election, with the intention of injury or oppressing citizens in the free exercise of their voting rights, they would be guilty as charged in this indictment.'
41
At no time was the jury told that specific intent to have false votes cast for the federal candidates was necessary for conviction of each of the conspirators; it was enough that the 'right to vote' was diluted and that 'illegal ballots' were cast to injure 'voting rights,' without distinction between federal and state elections. As long as the jury accepted the credibility of the prosecution witnesses, conviction under these instructions was inevitable, even for those petitioners who were not shown by any conclusive evidence to have had specific intent to interfere with the federal election, the ground on which the Court affirms.
42
While trial counsel did not object to the form of the instructions, where an error is so fundamental that the instruction does not properly submit to the jury the essential elements of the charged offense, there is plain error and the interests of justice and fair play demand that we take note. See Fisher v. United States, 328 U.S. 463, 467—468, 66 S.Ct. 1318, 1320—1321, 90 L.Ed. 1382, Screws v. United States, 325 U.S. 91, 107, 65 S.Ct. 1031, 1038, 89 L.Ed. 1495 (opinion of Douglas, J.); Fed.Rule Crim.Proc. 52(b).
43
The Court concedes that the jury instructions 'did not specifically focus' on an intent to cast false votes for federal candidates, but avoids this problem by contending in effect that this error was harmless because 'we think it inconceivable that, even if charged by more specific instructions, the jury could have found a conspiracy to cast false votes for local offices without finding a conspiracy to cast false votes for the federal offices as well.' (Emphasis added.)
44
I cannot agree with this crucial assumption. The gravamen of a conspiracy charge is agreeing with the intent of achieving a certain proscribed objective. '(I)t is . . . essential to determine what kind of agreement or understanding existed as to each defendant.' United States v. Borelli, 336 F.2d 376, 384 (Friendly, J.) (emphasis added); see Note, Developments in the Law Criminal Conspiracy, 72 Harv.L.Rev. 920, 929—930. When it is not shown that the unlawful objectives of one individual have been adopted by another, the latter cannot be found to have agreed to achieve the objectives and a conspiracy count to do so cannot be sustained. See Yates v. United States, 354 U.S. 298, 329—331, 77 S.Ct. 1064, 1082—1083, 1 L.Ed.2d 1356.
45
The evidence in this case, as the prosecutor observed in closing argument, demonstrated that petitioners focused their attention on the contest for County Commissioner. There is no conclusive evidence that the casting of fraudulent federal ballots was in fact necessary to petitioners' scheme to abscond with the local nomination contest, or that petitioners thought it necessary. There is no proof that a lower quantum of votes for the federal condidates would have aroused suspicion, or that petitioners felt that it would.4 Ballot splitting, with disparate numbers of votes cast for the various offices, was prevalent at this election.5 The nominations for County Commissioner and other local offices were closely contested, while the federal nominations were not, so that there would naturally be more votes cast in the local races.6 And even if we assume that a sophisticated conspirator would have considered it necessary to stuff the federal ballot box in order to conceal fraud in the state election, we simply cannot presume that the petitioners did also. The record reveals an unsophisticated, bludgeonlike effort to win the election for Okey Hager, with minimal preliminary attention to the niceties of covering up the fraud. When there is no conclusive evidence that the need to cast fraudulent federal votes even crossed the minds of four of the five petitioners, it is the jury's province, not ours, to determine whether there was specific intent to cast such votes.
46
The slenderness of the reed on which the Court's affirmance of these convictions rests is demonstrated by its assertions that the jury 'could believe' that the lack of discussion of federal ballots only reflected an 'assumption' by petitioners that such ballots would have to be cast, and that the jury 'could have inferred' that petitioners were motivated by the need to cast false federal ballots to conceal fraudulent local votes. But whether the jury 'could have inferred' or 'could (have) believe(d)' that there was sufficient proof of specific intent to cast false federal ballots in the evidence in this case misses the point, because the jury was never required to make this finding in order to convict. The jury verdict is not to be accorded its traditional sanctity, when it is premised on erroneous instructions. See Burton v. United States, 202 U.S. 344, 373—374, 26 S.Ct. 688, 695—696, 50 L.Ed. 1057. The jury has never passed on the question of petitioners' intent while guided by proper instructions. While circumstantial evidence may lead a jury to infer specific intent to interfere with a right protected by § 241, the weighing of the evidence should be the jury's task, not that of this Court. There was in fact no 'verdict' that petitioners conspired to have false votes cast in the federal election, and the sparse circumstantial evidence in this case makes it impossible for me to conclude, as does the Court, that such a verdict was inevitable so that the error in jury instructions was harmless. At the very least, justice requires that this case be remanded for a new trial.
II
47
Because I cannot agree that the evidence showed that petitioners necessarily conspired with the specific intent of having false votes cast for federal candidates, I could affirm only if § 241 reached a conspiracy by local officials to cast fraudulent votes in nominating candidates for local offices where, as here, there was no evidence of racial discrimination. I do not, however, believe that § 241 can properly be construed in such a fashion.
48
The Court of Appeals determined that § 241 did reach such conspiracies. It noted that the language of the section sweeps broadly to guarantee "any right or privilege secured . . . by the Constitution or laws of the United States," 481 F.2d., at 699, and also that United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239, and United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267, stated that § 241 proscribed conspiracies to violate Fourteenth Amendment rights, including those protected from interference under color of law by the Equal Protection Clause. One such right only recently defined, reasoned the Court of Appeals, is the right not to have valid votes cast in state elections diluted by those acting under color of state law, including local election officials such as those involved in the instant conspiracy, citing Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506. Thus in the view of the Court of Appeals, a conspiracy to cast fraudulent ballots in which state election officials took part resulted in a denial of equal protection under color of state law and stated a crime under § 241, even if the conspiracy did not encompass a federal election. 481 F.2d, at 698—700.
49
The argument ignores the intent of Congress as manifested by the legislative history of § 241. Congress did not intend to reach local election malfeasance where there was no evidence of racial bias because it did not believe that it had that power. It expressed unwillingness to interfere with the right of States to control their own elections where there was no racial discrimination.
50
Section 241 was originally passed as § 6 of the Enforcement Act of 1870, 16 Stat. 141. The Enforcement Act was a comprehensive body of legislation passed two months after the ratification of the Fifteenth Amendment, which protected the right of citizens to vote from denial by the Federal or State Governments 'on account of race, color, or previous condition of servitude.' The Fifteenth Amendment authorized Congress 'to enforce this article by appropriate legislation.' This latter clause was the impetus for the Act.
51
What is now § 241 was offered as an amendment by Senator Pool of North Carolina, who referred in introducing the amendment to 'rights which are conferred upon the citizen by the fourteenth amendment.' Cong.Globe, 41st Cong., 2d Sess., 3611. But there is no proof that he conceived of the possibility that the amendment could reach local election fraud where there was no racial discrimination.7 On the other hand, the rest of the legislative history of the Enforcement Act demonstrates that Congress, in adopting Pool's amendment, could not have intended to reach such frauds, because it did not believe that it had that power.
52
Because the Enforcement Act of 1870 was concerned primarily with suffrage, there is ample legislative history elucidating the reach of congressional power regarding both federal and local elections. The constitutional power to pass those sections of the Act which purported to deal with the right to vote in local elections was perceived to flow from the Fifteenth Amendment,8 which protected the right to vote from infringement only 'on account of race, color, or previous condition of servitude.? Even the staunchest supporters of the Act conceded that, absent the critical element of racial discrimination, the Act could not reach local elections. The following colloquy, for example, occurred between Senator Edmunds of Vermont, one of two Senate floor managers of the Act, id., at 3753, and Senator Morton of Indiana, another supporter of the Act. While interference with local elections could be punished if racial discrimination, against either white or black, was extant, local election fraud could not otherwise be reached by federal jurisdiction:
53
'Mr. MORTON. . . . Our theory is that the question of suffrage is under the control of the States, and was left to the several States by the Constitution of the United States; and that being the case, Congress had no power to pass a law conferring suffrage on colored men, and it was necessary to amend the Constitution of the United States for that purpose. We therefore provided in the fifteenth amendment that 'the right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude.' The proposition to which I call attention is this: that the question of suffrage is now, as it was before, completely under the control of the several States to punish violations of the right of suffrage, just as they had the power before, except that we take away their power to deny suffrage on account of race, color, or previous condition of servitude, and have given to Congress the power to enforce this amendment.
54
'The question now to which I call the attention of the Senate is whether it is in the power of Congress to make provision for punishing violations of the right of suffrage except those violations go to the question of color, race, or previous condition of servitude.
55
'Mr. EDMUNDS. But it does not make any difference what the color is, black or white.
56
'Mr. MORTON. Not a bit. It does not make any difference which; but if a man is denied the right of suffrage because he is a white man, if any state shall assume to deny a man the right of suffrage because he is a white man, then we have a right to interfere; or if because he is a colored man, then we have a right to interfere. But suppose the denial of the right of suffrage by a board of registration or a board of inspectors has nothing whatever to do with color; suppose it is for an offense that existed by State law before the enactment of this fifteenth amendment, what power have we got to interfere with that any more than we had before?
57
'Mr. EDMUNDS. Nobody, I think, would claim that we have. I should not say so.' Cong.Globe, 41st Cong., 2d Sess., 3571.
58
In the course of debate, Senator Sherman of Ohio, another ardent advocate of the Act, proposed an amendment to add three sections to it. These sections, which were adopted with slight changes as §§ 19, 20, and 21, were designed to deal with frauds not involving racial discrimination, but only in federal elections. Senator Sherman's comments express the desire not to 'invade the right of any state,' id., at 3664, to control its own elections and reflect the belief that an element of racial bias was considered a necessary precondition to congressional power to deal with state elections. Federal elections for Senators and Congressmen could be governed absent such bias, but only by virtue of the express authority of Art. I, § 4, of the Constitution.9 In describing these amendments to the House after their adoption by the Senate, Representative Bingham of Ohio, the floor manager of the Act in the House, stated:
59
'The amendments proposed to prevent fraudulent registration or fraudulent voting, in so far as I am advised, do not alter any of the existing regulations of the States touching registration; they are but a simple exercise of the power expressly conferred on the Congress of the United States to regulate elections of members and Delegates to Congress. They are expressly limited to elections of those officers. I do not deem it important to say anything further on that point.' Cong.Globe, 41st Cong., 2d Sess., 3872.
60
Only nine months later, the same Congress which passed the Enforcement Act of 1870 passed the Force Act of 1871, 16 Stat. 433, which supplemented the 1870 Act by supplying independent federal enforcement machinery to affirmatively ensure the right to vote in all congressional elections. Federal election officials were appointed to supervise such elections; the normal state processes were suppressed. But Congress made clear that its power could attach only when needed to protect congressional elections. One of the supporters of the bill, Representative Churchill of New York, stated:
61
'But, Mr. Speaker, for some years past grave doubts have prevailed in different portions of this country as to whether the declared results of elections have truly expressed the will of the people. With regard to officers of States and officers of minor communities this doubt, so far as it exists, is left to be determined, as it can only be determined, by the laws existing in those States or communities. But so far as regards members of the Congress of the United States, although the first legislation in regard to the matter is intrusted by the Constitution of the United States to the States themselves, the power is properly reserved to Congress itself to determine by what rules these elections shall be conducted . . ..' Cong.Globe, 41st Cong., 3d Sess., 1274.
62
In the same vein, Representative Bingham, who as noted was a floor manager of the 1870 Act, again reflected caution about interfering with the responsibility of the States to manage their own elections, asserting:
63
'I am willing that the issue shall be made up, and let the people speak upon this question. The bill interferes with no reserved rights of the States. If the States do not choose to hold their elections on the same day for mere State officials, be it so; but with regard to the vote for Representatives in Congress, I take it that the great majority of the people of every State in the Union will admit that the nation has a right to be represented at every election for Congress by its own law and by its own officials as well as the State. I have given the words, the thoughtful words of the makers of the Constitution in support of that right. No law of any State by this bill is in any manner wrongfully impaired.' Id., at 1284.10
64
Thus, while the concurrent nomination races for federal officers in the Mount Gay precinct provided an opportunity for petitioners to violate § 241, that violation could occur only if the petitioners possessed the specific intent to cast fraudulent votes in the federal elections as an object of their conspiracy.
65
The broad language of Guest and Price does not authorize us to draw any other conclusion. Guest involved racial discrimination and rights under the Equal Protection Clause 'firmly and precisely established by a consistent line of decisions in this Court.' 383 U.S., at 754, 86 S.Ct., at 1175. That is not true of the right to be free from fraud without any racial connotation in local elections. In Price, we noted the sparse legislative history of § 241 as part of the Enforcement Act, and held that there was no indication that Congress did not intend it to reach the Fourteenth Amendment right in question, the right to due process. 383 U.S., at 801, 86 S.Ct., at 1160. We noted that the application of § 241 in that case 'does not raise fundamental questions of federal-state relationships.' Id., at 806, 86 S.Ct., at 1163. Those facts are not present in this case. There is legislative history which indicates that Congress did not intend to reach local election frauds in passing § 241, because it did not believe that it had that power. And the decision of the Court of Appeals reaches to the very heart of federal-state relations, permitting federal intrusion in even the most local election, intrusions which the 41st Congress attempted to avoid when passing the Enforcement Act of 1870 and the Force Act of 1871.
66
While the civil protections of the Fourteenth Amendment reach state elections even where there is no racial animus, criminal laws such as 18 U.S.C. § 241 must be strictly construed, and we have required that Congress 'plainly and unmistakably' assert federal criminal jurisdiction over an activity. See United States v. Bass, 404 U.S. 336, 348, 92 S.Ct. 515, 522, 30 L.Ed.2d 488; United States v. Gradwell, 243 U.S. 476, 485, 37 S.Ct. 407, 410, 61 L.Ed. 857. Here Congress did not plainly intend § 241 to reach local elections frauds, and apparently intended quite the opposite. '(B)ecause of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity. This policy embodies 'the instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should." United States v. Bass, supra, 404 U.S., at 348, 92 S.Ct., at 523.
67
I can affirm neither on the theory that § 241 reaches state election frauds where there is no evidence of racial discrimination, nor on the theory adopted by the Court that it was 'inconceivable' that petitioners did not specifically intend to have false votes cast in the federal election, with the exception of Red Hager. The other petitioners are entitled at least to a new trial under proper instructions.
APPENDIX TO OPINION OF DOUGLAS, J., DISSENTING
Excerpts from Jury Instructions
68
The indictment in this case charges in substance that beginning on or about the 1st day of May, 1970, and continuing until on or about the date of the indictment the defendants unlawfully, willfully and knowingly conspired with each other and with other persons who are both known and unknown to the grand jury, to injure and oppress the qualified voters of Logan County in the free exercise and enjoyment of certain rights and privileges secured to them by the Constitution and the laws of the United States, that is, the right to vote and to have such votes cast, counted, recorded and certified at full value.
69
The indictment also alleges that in order to effect the objects of the conspiracy the defendants caused and attempted to cause votes to be cast in the Mount Gay precinct of Logan County by procedures and methods in violation of the laws of the State of West Virginia, all with the purpose and intent that the illegal, fraudulent and fictitious ballots would be counted, returned and certified as a part of the total vote cast in the May 12, 1970, primary election, thereby impairing, diminishing, diluting and destroying the value and effect of votes legally, properly and honestly cast in that primary election in Logan County, which the indictment alleges violates Title 18 of the United States Code, Section 241.
70
The statute cited in the indictment provides in part that it shall be a criminal offense for two or more persons to conspire to injure any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States. You are instructed that the right to vote and the right to have the value of that vote undiminished and undiluted by the presence of illegal votes is a right guaranteed by the Constitution and laws of the United States within the context of the charging statute.
71
The indictment in this case states that the defendants caused false and fictitious votes to be cast and counted, and that casting and counting such votes violates the laws of the State of West Virginia. With regard to whether or not casting and counting false and fictitious votes or causing them to be cast and counted violates West Virginia law, you are further instructed that the laws of the State of West Virginia are violated when fictitious votes are cast and counted or caused to be cast and counted.
72
The government in essence contends that there defendants, along with other co-conspirators not named as defendants in the indictment, including Elwood Sloan, Cecil Elswick, Calvin Napier, Mae Stollings, Minerva Richards, Janet Sullins and perhaps others, did unlawfully, willfully and knowingly conspire together and with each other to violate the law of the United States in causing or attempting to cause votes to be cast in the Mount Gay precinct of Logan County, West Virginia, in the May 1970 primary election by procedures and methods in violation of the laws of West Virginia pertaining to the handling of a precinct by election officials, and by further causing and attempting to cause the County Court of Logan County, West Virginia, to find that no illegal votes were cast in the Mount Gay precinct by solicting perjury and the commission of perjury in an election contest held subsequent to the May 12, 1970, primary, all with the purpose and intent that the alleged illegal and fraudulent and fictitious votes would be counted as a part of the total vote cast, resulting in an impairment, lessening and dilution of the value and effect of the votes legally and honestly cast. The government contends, of course, that all this was done in violation of Title 18, Section 241 of the United States Code, the charging statute designated in the indictment.
73
The Court further tells you that intent is an essential element of this offense. You are therefore charged that before you can convict the defendants, or any of them, you must believe beyond a reasonable doubt that such defendant or defendants deliberately and with knowledge conspired with others to injure certain qualified voters in the free exercise and enjoyment of their right of suffrage.
74
Now, it is a legal presumption that people intend the natural and probable consequences of their acts, and also that they know that the right of legally qualified persons to vote is a federally Constitutionally protected right, and consequently, if any one or more of the defendants conspired knowingly and intentionally with another defendant or with a co-conspirator to produce the casting and counting of illegal ballots in the 1970 primary election, with the intention of injury or oppressing citizens in the free exercise of their voting rights, they would be guilty as charged in this indictment.
1
The County Commissioner sits on the County Court which is the central governmental body in the county. See State ex rel. Dingess v. Scaggs, 195 S.E.2d 724, 726 (W.Va.1973). See also W.Va.Code Ann., § 7—1—3 et seq. (1969).
2
The participation of the election officials was secured by threats of indictment or arrest, or promises of county jobs and money.
3
Of the 541 persons listed as eligible to vote at the Mount Gay precinct, the Government proved that 222 did not vote and that 13 more were either dead, in the hospital, or in prison. This left a maximum of 306 who could have voted. Observers at the precinct throughout election day estimated that about 275 persons had actually voted. Nevertheless 348 votes were recorded as cast for candidates for the nominees for United States Senator, 328 for Congressman, 358 for State Senator, 458 for House of Delegates, 375 for County Commissioner (long term), 365 for County Commissioner (short term), 371 for Justice of the Peace, and 371 for Constable.
4
The election contest, at which candidate Hager was one of the two presiding judges, was concluded on August 25, 1970. Although the court was required by statute to rule on the contest by September 17, 1970, see W.Va.Code Ann., § 3—7—7, it failed to enter a final order within the statutory period. Scaggs appealed to an intermediate appellate court, which granted an appeal. The Supreme Court of Appeals of West Virginia, however, ruled that the intermediate appellate court lacked jurisdiction since no decision had been rendered by the County Court within the statutory time allowed. See State ex rel. Hager v. Oakley, 154 W.Va. 528, 177 S.E.2d 585 (1970).
5
Other grounds for exclusion argued before the District Court and in the briefs before the Court of Appeals have not been pursued here. These include a contention that introduction of the prior testimony had the effect of putting Tomblin and Browning on the witness stand in violation of their constitutional right to stand mute, a suggestion that since the testimony was given in a judicial hearing there might be Miranda problems, and the argument that the prior testimony of Tomblin and Browning was inadmissible impeachment evidence since both had exercised their constitutional right not to testify. See 481 F.2d 685, 694.
The Court of Appeals recognized that it need not ordinarily consider grounds of objection not presented to the trial court. See Hormel v. Helvering, 312 U.S. 552, 556, 61 S.Ct. 719, 721, 85 L.Ed. 1037 (1941). This rule is not without its exceptions, however, particularly in criminal cases where appellate courts an notice errors seriously affecting the fairness or integrity of judicial proceedings. See United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936). See also Hormel v. Helvering, supra, 312 U.S., at 557, 61 S.Ct., at 721. In view of the fact that petitioners did challenge the admissibility of the Tomblin and Browning testimony at trial, we think it was proper for the Court of Appeals to consider all grounds related to that underlying objection.
6
The rationale for both the hearsay-conspiracy exception and its limitations is the notion that conspirators are partners in crime. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 253, 60 S.Ct. 811, 858, 84 L.Ed. 1129 (1940); Fiswick v. United States, 329 U.S. 211, 216, 67 S.Ct. 224, 227, 91 L.Ed. 196 (1946). As such, the law deems them agents of one another. And just as the declarations of an agent bind the principal only when the agent acts within the scope of his authority, so the declaration of a conspirator must be made in furtherance of the conspiracy charged in order to be admissible against his partner. See Krulewitch v. United States, 336 U.S. 440, 442—443, 69 S.Ct. 716, 717—718, 93 L.Ed. 790 (1949); Fiswick v. United States, supra, 329 U.S., at 217, 67 S.Ct., at 227; Wong Sun v. United States, 371 U.S. 471, 490, 83 S.Ct. 407, 418—419, 9 L.Ed.2d 441 (1963). See generally 4 J. Wigmore, Evidence §§ 1077—1079 (Chadbourne rev. 1972).
7
See 5 J. Wigmore, Evidence § 1361 (3d ed. 1940); C. McCormick, Law of Evidence 460 (1954).
8
Of course, evidence is not hearsay when it is used only to prove that a prior statement was made and not to prove the truth of the statement. See Dutton v. Evans, 400 U.S. 74, 88, 91 S.Ct. 210, 219, 27 L.Ed.2d 213 (1970) (opinion of Stewart, J.). See also Creaghe v. Iowa Home Mut. Cas. Co., 323 F.2d 981 (CA10 1963); General Tire of Miami Beach, Inc. v. NLRB, 332 F.2d 58 (CA5 1964); Safeway Stores, Inc. v. Combs, 273 F.2d 295 (CA5 1960); Ford Motor Co. v. Webster's Auto Sales, Inc., 361 F.2d 874 (CA1 1966).
9
Thus, in his opening argument the prosecutor said: 'I believe the evidence will show, frankly, that that election contest was full of perjurious testimony, full of lies. Some of it, the evidence will show, was solicited and caused by these defendants.' App. 22. The same point was made in closing argument. Tr. 1851—1852.
10
See 5 J. Wigmore, supra, n. 7, at § 1362. See also Colorificio Italiano Max Meyer, S.P.A. v. S/S Hellenic Wave, 419 F.2d 223 (CA5 1969); Rossville Salvage Corp. v. S. E. Graham Co., 319 F.2d 391 (CA3 1963); Superior Engraving Co. v. NLRB, 183 F.2d 783 (CA7 1950), cert. denied, 340 U.S. 930, 71 S.Ct. 490, 95 L.Ed. 671 (1951).
11
Technically, of course, the proffered evidence was hearsay in that the Government sought to prove the prior testimony of Tomblin and Browning by reading a transcript of the election contest hearing into evidence at the § 241 trial, rather than by calling as a witness a person who himself heard the Tomblin and Browning testimony. A well-recognized exception to the hearsay rule, however, permits the introduction of certified court transcripts to prove the testimony given at a prior proceeding. See generally 5 J. Wigmore, supra, n. 7, at § 1681. Nor is there any right-of-confrontation problem here, since petitioners did not suggest below that the transcript read at the § 241 trial did not accurately reflect the testimony actually given at the election contest hearing.
12
In briefing this case, all parties appear to have assumed that this sufficiency-of-the-evidence claim was properly before this Court. It seems clear, however, that this issue was presented neither to the Court of Appeals nor to us in the petition for a writ of certiorari. As indicated earlier, the § 241 question arose below only with respect to the admissibility of the prior testimony of Browning and Tomblin, and not in connection with any claim that the evidence was insufficient to support a verdict under the statute. We nevertheless consider the sufficiency-of-the-evidence claim here. We recognize that petioners did raise before both the District Court and the Court of Appeals, and in the petition for a writ of certiorari a claim that the indictment was unconstitutionally vague, and the gist of their argument on this point was that the Government had charged a conspiracy to cast false votes for both federal and local candidates in order to survive a motion to dismiss the indictment, but had turned around at trial and proved only a conspiracy to cast false votes for the local candidates. This argument therefore raised the substance of petitioners' present contention that the evidence was insufficient to show a conspiracy to cast false votes for federal candidates. Moreover, as we have had occasion to note, a claim that a conviction is based on a record lacking any evidence relevant to crucial elements of the offense is a claim with serious constitutional overtones. See, e.g., Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960); Johnson v. Florida, 391 U.S. 596, 88 S.Ct. 1713, 20 L.Ed.2d 838 (1968). See also Adderley v. Florida, 385 U.S. 39, 44, 87 S.Ct. 242, 245, 17 L.Ed.2d 149 (1966). Accordingly, even though the sufficiency-of-the-evidence issue was not raised below with any particularity, we think the interests of justice require its consideration here. See Screws v. United States, 325 U.S. 91, 107, 65 S.Ct. 1031, 1038, 89 L.Ed. 1495 (1945) (opinion of Douglas, J.). Cf. Lawn v. United States, 355 U.S. 339, 362 n. 16, 78 S.Ct. 311, 324, 2 L.Ed.2d 321 (1958).
13
We also find no merit in petitioners' contention that the indictment was unconstitutionally vague. The indictment states that on May 12, 1970, a primary election was held in Logan County, West Virginia, for the purpose of nominating candidates for the offices of United States Senator, Representative to Congress and various state and county public offices. It then charges each of the defendants with conspiring to injure and oppress the qualified voters of Mount Gay precinct in the free exercise and enjoyment of their 'right to vote for candidates for the aforesaid offices and to have such vote cast, counted, recorded, and certified at their full value and given full effect . . ..' The indictment further specifies that it was a part of the conspiracy 'to cause fraudulent and fictitious votes to be case in said precinct . . ..' Pet. for Cert. 3b. We think it plain that the indictment gave petitioners adequate notice of the specific charges against them. We also note, and petitioners themselves concede, that the form of the indictment was similar to those used in other § 241 prosecutions. See United States v. Saylor, 322 U.S. 385, 64 S.Ct. 1101, 88 L.Ed. 1341 (1944); United States v. Kantor, 78 F.2d 710 (CA2 1935); Walker v. United States, 93 F.2d 383 (CA8 1937); Ledford v. United States, 155 F.2d 574 (CA6), cert. denied, 329 U.S. 733, 67 S.Ct. 96, 91 L.Ed. 634 (1946).
1
See United States v. Guest, 383 U.S. 745, 753—754, 86 S.Ct. 1170, 1175—1176, 16 L.Ed.2d 239, id., at 785—786, 86 S.Ct., at 1192—1193 (Brennan, J., concurring and dissenting); United States v. Price, 383 U.S. 787, 806 n. 20, 86 S.Ct. 1152, 1163, 16 L.Ed.2d 267; United States v. Williams, 341 U.S. 70, 93—95, 71 S.Ct. 581, 593—595, 95 L.Ed. 758 (Douglas, J., dissenting); Screws v. United States, 325 U.S. 91, 101—107, 65 S.Ct. 1031, 1035—1038, 89 L.Ed. 1495 (opinion of Douglas, J.).
2
Id., 325 U.S., at 105, 65 S.Ct., at 1037; see United States v. Price, supra, 383 U.S., at 806 n. 20, 86 S.Ct., at 1163.
3
Cecil Elswick, an unindicted coconspirator who was a witness for the Government, testified that petitioner W. Bernerd Smith told him 'how to win the election,' but there is no evidence that Smith made any reference to casting false ballots for federal candidates.
'Elswick also testified that there was a meeting the night before the election at which all of the petitioners were present and at which, the Court notes, Smith and Red Hager emphasized the need to put 'all the votes' on the machine. The entire statement indicates that Hager and Smith were simply urging Elswick to cast as many votes as could be cast in the precinct, given the number of registered voters; it does not constitute an instruction to cast votes for federal candidates as well as the Okey Hager slate:
'Bernard and Red Hager was mostly spokesmen and Bernard said to be sure and put all the votes on there, put all of them on but fifty, and Red kept saying, 'Put them all on." Tr. 632.
4
See n. 3, supra.
5
For example, 375 votes were recorded in the Mount Gay precinct for County Commissioner (Long Term), 371 for Justice of the Peace and Constable, but only 348 for United States Senator and 328 for United States Representative.
6
The countywide totals in the Hager-Scaggs County Commissioner's race had Hager the winner by only 21 votes, and the result would have been reversed without the returns from Mount Gay. On the federal level, Senator Byrd and Representative Hechler were apparently running virtually unopposed for renomination. In Mount Gay, supporters of both Hager and Scaggs voted for these two federal incumbents, and Byrd won Mount Gay by a vote of 346 to six and Hechler by a vote of 318 to 10.
7
Senator Pool's remarks are reprinted in full in the appendix to United States v. Price, 383 U.S., at 807—820, 86 S.Ct., at 1163—1170.
8
See, e.g., Cong.Globe, 41st Cong.2d Sess., 3503 (Rep. Bingham); id., 3359 (Sen. Stewart); id., at 3564 (Sen. Pool); id., at 3567 (Sen. Stockton).
9
Article I, § 4, provides: 'The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.' Sherman's amendment orig-
inally provided also for regulation of Presidential electors, but this provision was quickly deleted when it was pointed out that Congress was without constitutional power to include it. Cong.Globe, 41st Cong., 2d Sess., 3670.
In proposing the amendments, Sherman stated:
'(Senator Thurman) admits that Congress has a right by appropriate legislation to prevent any State from discriminating against a voter on account of his race, color, or previous condition of servitude. That is all, I believe, that is claimed by any one on this side of the Chamber as to the authority conferred by the fifteenth amendment. . . .
'But, Mr. President, there is one other grievance that I feel ought to be dealt with at this moment, as we have this bill before us; a grievance which has become of greater magnitude even than the denial of the right to vote to colored people; and that is, the open, glaring admitted frauds by wholesale in the great cities of this country, by which our Government is about to be subverted. . . . We have official documents without number in both Houses of Congress showing the growing evil of trampling down the rights of communities and States to representation in Congress in the election of members of Congress and in the election of Senators. . . .
'. . . There can be no doubt about the constitutional power of Congress in this particular, because it is in plain accordance with the provisions of the Constitution which authorize Congress to change and alter the mode and manner of electing members of Congress (Art. I, § 4) . . .. As I have said, they have received the sanction of a committee of the House, which has carefully examined the whole subject, and I do not believe they raise any constitutional question, or invade the right of any State.
'In my judgment in elections for officers of the national Government we can prescribe, under the Constitution, the mode and manner and qualification of voters.' Id., at 3663—3664.
10
See also the remarks of Representative Lawrence of Ohio:
'Mr. LAWRENCE. . . . And if the States have failed to enact laws necessary to secure what we all, I trust, have so much at heart, to wit, the purity of the ballot-box, or have failed to execute those already enacted, then it is the highest duty of this Congress to intervene and protect the citizens of the United States in the enjoyment of the elective franchise against force and fraud in the election of Representatives in Congress, leaving the States to provide such legislation as they may deem necessary in the election of local and State officers.
'It will reach any officer who improperly tampers with the election of a Representative in Congress; but it does not reach any State officer or any citizen in connection with any local or State election.
'Mr. JONES, of Kentucky. I have not read all the provisions of this bill, and as the gentleman seems to have done so I desire to ask him whether they apply to other elections than those for members of Congress?
'Mr. LAWRENCE. They apply only to the elections for Representatives and Delegates to Congress. The bill does not propose to interfere with State elections at all.' Cong.Globe, 41st Cong., 3d Sess., 1276.
| 01
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417 U.S. 188
94 S.Ct. 2223
41 L.Ed.2d 1
CORNING GLASS WORKS, Petitioner,v.Peter J. BRENNAN, Secretary of Labor, United States Department of Labor. Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Petitioner, v. CORNING GLASS WORKS.
Nos. 73—29, 73—695.
Argued March 25, 1974.
Decided June 3, 1974.
Syllabus
Male employees at the Corning Glass Works (Corning) previously performed night shift inspection and were paid more than females, who performed the day shift inspection. A plantwide shift differential that subsequently came with unionization was superimposed on the existing base-wage difference between male night inspectors and female day inspectors. Thereafter, beginning June 1, 1966, Corning began to open up night shift jobs for women, who on an equal seniority basis with men were able to bid for the higher paid night inspection jobs as vacancies occurred. On January 20, 1969, a new 'job evaluation' system for setting wage rates took effect, under which all subsequently hired inspectors were to receive the same base wage (which was higher than the previous night shift rate) regardless of sex or shift. Employees hired before that date, however, when working night shift were to continue to receive a higher ('red circle') rate, thus perpetuating the previous differential in base pay between day and night inspectors. The Secretary of Labor brought these actions for backpay and injunctive relief against Corning, claiming that violations of the Equal Pay Act of 1963 had occurred at its Corning, N.Y. (No. 73—29), and Wellsboro, Pa. (No. 73—695), plants. In No. 73—29, the District Court granted relief, and the Court of Appeals for the Second Circuit affirmed, concluding that Corning's practice violated the Act, while the District Court in No. 73—695 held that the Act had not been violated, and the Court of Appeals for the Third Circuit affirmed. In order to establish a violation of the Act, it must be shown that an employer pays different wages to employees of opposite sexes 'for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions,' except where the difference in payment is made pursuant to a seniority or merit system or one measuring earnings by quantity or quality of production, or where the differential is 'based on any other factor other than sex.' Held:
1. Corning violated the Act during the period from its effective date to June 1966. Pp. 195—205.
(a) The statutory term 'working conditions,' as is clear from the Act's legislative history, encompasses only physical surroundings and hazards and not the time of day worked. Pp. 197 204.
(b) The record amply supports the conclusion of the District Court in No. 73—29 that Corning had not sustained its burden of proof that the higher base wage for pre-June 1966 all-male night inspection work was in fact intended to serve as added compensation for night work, and thus was based on a 'factor other than sex.' Substantial evidence showed that the differential arose simply because men would not work at the low rates paid women inspectors and reflected a job market in which Corning could pay women less than men for the same work. Pp. 204—205.
2. Corning did not cure its violation in June 1966 by permitting women to work as night shift inspectors, since the violation could not have been cured except by equalizing the base wages of female day inspectors with the higher rates paid the night inspectors. Pp. 205—208.
3. The violation was not cured in 1969, when Corning equalized day and night inspector wage rates, since the 'red circle' rate perpetuated the discrimination. Pp. 208—210.
No. 73—29, 474 F.2d 226, affirmed; No. 73—695, 480 F.2d 1254, reversed and remanded.
Scott F. Zimmerman, Pittsburgh, Pa., for petitioner in No. 73 29 and for respondent in No. 73—695.
Allan A. Tuttle, Raleigh, N.C., for respondent in No. 73—29 and for petitioner in No. 73—695.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
These cases arise under the Equal Pay Act of 1963, 77 Stat. 56, § 3, 29 U.S.C. § 206(d)(1),1 which added to § 6 of the Fair Labor Standards Act of 1938 the principle of equal pay for equal work regardless of sex. The principal question posed is whether Corning Glass Works violated the Act by paying a higher base wage to male night shift inspectors than it paid to female inspectors performing the same tasks on the day shift, where the higher wage was paid in addition to a separate night shift differential paid to all employees for night work. In No. 73—29, the Court of Appeals for the Second Circuit, in a case involving several Corning plants in Corning, New York, held that this practice violated the Act. 474 F.2d 226 (1973). In No. 73—695, the Court of Appeals for the Third Circuit, in a case involving a Corning plant in Wellsboro, Pennsylvania, reached the opposite conclusion. 480 F.2d 1254 (1973). We granted certiorari and consolidated the cases to resolve this unusually direct conflict between two circuits. 414 U.S. 1110, 94 S.Ct. 839, 38 L.Ed.2d 737 (1973). Finding ourselves in substantial agreement with the analysis of the Second Circuit, we affirm in No. 73—29 and reverse in No. 73—695.
2
* Prior to 1925, Corning operated its plants in Wellsboro and Corning only during the day, and all inspection work was performed by women. Between 1925 and 1930, the company began to introduce automatic production equipment which made it desirable to institute a night shift. During this period, however, both New York and Pennsylvania law prohibited women from working at night.2 As a result, in order to fill inspector positions on the new night shift, the company had to recruit male employees from among its male dayworkers. The male employees so transferred demanded and received wages substantially higher than those paid to women inspectors engaged on the two day shifts.3 During this same period, however, no plant-wide shift differential existed and male employees working at night, other than inspectors, received the same wages as their day shift counterparts. Thus a situation developed where the night inspectors were all male,4 the day inspectors all female, and the male inspectors received significantly higher wages.
3
In 1944, Corning plants at both locations were organized by a labor union and a collective-bargaining agreement was negotiated for all production and maintenance employees. This agreement for the first time established a plantwide shift differential,5 but this change did not eliminate the higher base wage paid to male night inspectors. Rather, the shift differential was superimposed on the existing difference in base wages between male night inspectors and female day inspectors.
4
Prior to June 11, 1964, the effective date of the Equal Pay Act,6 the law in both Pennsylvania and New York was amended to permit women to work at night.7 It was not until some time after the effective date of the Act, however, that Corning initiated efforts to eliminate the differential rates for male and female inspectors. Beginning in June 1966, Corning started to open up jobs on the night shift to women. Previously separate male and female seniority lists were consolidated and women became eligible to exercise their seniority, on the same basis as men, to bid for the higher paid night inspection jobs as vacancies occurred.
5
On January 20, 1969, a new collective-bargaining agreement went into effect, establishing a new 'job evaluation' system for setting wage rates. The new agreement abolished for the future the separate base wages for day and night shift inspectors and imposed a uniform base wage for inspectors exceeding the wage rate for the night shift previously in effect. All inspectors hired after January 20, 1969, were to receive the same base wage, whatever their sex or shift. The collective-bargaining agreement further provided, however, for a higher 'red circle' rate for employees hired prior to January 20, 1969, when working as inspectors on the night shift. This 'red circle' rate served essentially to perpetuate the differential in base wages between day and night inspectors.
6
The Secretary of Labor brought these cases to enjoin Corning from violating the Equal Pay Act8 and to collect back wages allegedly due female employees bacause of past violations. Three distinct questions are presented: (1) Did Corning ever violate the Equal Pay Act by paying male night shift inspectors more than female day shift inspectors? (2) If so, did Corning cure its violation of the Act in 1966 by permitting women to work as night shift inspectors? (3) Finally, if the violation was not remedied in 1966, did Corning cure its violation in 1969 by equalizing day and night inspector wage rates but establishing higher 'red circle' rates for existing employees working on the night shift?
II
7
Congress' purpose in enacting the Equal Pay Act was to remedy what was perceived to be a serious and endemic problem of employment discrimination in private industry—the fact that the wage structure of 'many segments of American industry has been based on an ancient but outmoded belief that a man, because of his role in society, should be paid more than a woman even though his duties are the same.' S.Rep. No. 176, 88th Cong., 1st Sess., 1 (1963). The solution adopted was quite simple in principle: to require that 'equal work will be rewarded by equal wages.' Ibid.
8
The Act's basic structure and operation are similarly straightforward. In order to make out a case under the Act, the Secretary must show that an employer pays different wages to employees of opposite sexes 'for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.' Although the Act is silent on this point, its legislative history makes plain that the Secretary has the burden of proof on this issue,9 as both of the courts below recognized.10
9
The Act also establishes four exceptions—three specific and one a general catchall provision—where different payment to employees of opposite sexes 'is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.' Again, while the Act is silent on this question, its structure and history also suggest that once the Secretary has carried his burden of showing that the employer pays workers of one sex more than workers of the opposite sex for equal work, the burden shifts to the employer to show that the differential is justified under one of the Act's four exceptions. All of the many lower courts that have considered this question have so held,11 and this view is consistent with the general rule that the application of an exemption under the Fair Labor Standards Act is a matter of affirmative defense on which the employer has the burden of proof.12
10
The contentions of the parties in this case reflect the Act's underlying framework. Corning argues that the Secretary has failed to prove that Corning ever violated the Act because day shift work is not 'performed under similar working conditions' as night shift work. The Secretary maintains that day shift and night shift work are performed under 'similar working conditions' within the meaning of the Act.13 Although the Secretary recognizes that higher wages may be paid for night shift work, the Secretary contends that such a shift differential would be based upon a 'factor other than sex' within the catch-all exception to the Act and that Corning has failed to carry its burden of proof that its higher base wage for male night inspectors was in fact based on any factor other than sex.
11
The courts below relied in part on conflicting statements in the legislative history having some bearing on this question of statutory construction. The Third Circuit found particularly significant a statement of Congressman Goodell, a sponsor of the Equal Pay bill, who, in the course of explaining the bill on the floor of the House, commented that 'standing as opposed to sitting, pleasantness or unpleasantness of surroundings, periodic rest periods, hours of work, difference in shift, all would logically fall within the working condition factor.' 109 Cong.Rec. 9209 (1963) (emphasis added). The Second Circuit, in contrast, relied on a statement from the House Committee Report which, in describing the broad general exception for differentials 'based on any other factor other than sex,' stated: 'Thus, among other things, shift differentials . . . would also be excluded. . . .' H.R.Rep.No.309, 88th Cong., 1st Sess., 3 (1963). U.S.Code Cong. & Admin.News 1963, pp. 687, 689.
12
We agree with Judge Friendly, however, that in this case a better understanding of the phrase 'performed under similar working conditions' can be obtained from a consideration of the way in which Congress arrived at the statutory language than from trying to reconcile or establish preferences between the conflicting interpretations of the Act by individual legislators or the committee reports. As Mr. Justice Frankfurther remarked in an earlier case involving interpretation of the Fair Labor Standards Act, 'regard for the specific history of the legislative process that culminated in the Act now before us affords more solid ground for giving it appropriate meaning.' United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 222, 73 S.Ct. 227, 230, 97 L.Ed. 260 (1952).
13
The most notable feature of the history of the Equal Pay Act is that Congress recognized early in the legislative process that the concept of equal pay for equal work was more readily stated in principle than reduced to statutory language which would be meaningful to employers and workable across the broad range of industries covered by the Act. As originally introduced, the Equal Pay bill required equal pay for 'equal work on jobs the performance of which requires equal skills.' There were only two exceptions—for differentials 'made pursuant to a seniority or merit increase system which does not discriminate on the basis of sex. . . .'14
14
In both the House and Senate committee hearings, witnesses were highly critical of the Act's definition of equal work and of its exemptions. Many noted that most of American industry used formal, systematic job evaluation plans to establish equitable wage structures in their plants.15 Such systems, as explained coincidentally by a representative of Corning Glass Works who testified at both hearings, took into consideration four separate factors in determining job value—skill, effort, responsibility and working conditions—and each of these four components was further systematically divided into various subcomponents.16 Under a job evaluation plan, point values are assigned to each of the subcomponents of a given job, resulting in a total point figure representing a relatively objective measure of the job's value.
15
In comparison to the rather complex job evaluation plans used by industry, the definition of equal work used in the first drafts of the Equal Pay bill was criticized as unduly vague and incomplete. Industry representatives feared that as a result of the bill's definition of equal work, the Secretary of Labor would be cast in the position of second-guessing the validity of a company's job evaluation system. They repeatedly urged that the bill be amended to include an exception for job classification systems, or otherwise to incorporate the language of job evaluation into the bill.17 Thus Corning's own representative testified:
16
'Job evaluation is an accepted and tested method of attaining equity in wage relationship.
17
'A great part of industry is committed to job evaluation by past practice and by contractual agreement as the basis for wage administration.
18
"Skill' alone, as a criterion, fails to recognize other aspects of the job situation that affect job worth.
19
'We sincerely hope that this committee in passing legislation to eliminate wage differences based on sex alone, will recognize in its language the general role of job evaluation in establishing equitable rate relationship.'18
20
We think it plain that in amending the bill's definition of equal work to its present form, the Congress acted in direct response to these pleas. Spokesmen for the amended bill stated, for example, during the House debates:
21
'The concept of equal pay for jobs demanding equal skill has been expanded to require also equal effort, responsibility, and similar working conditions. These factors are the core of all job classification systems. They form a legitimate basis for differentials in pay.'19
22
Indeed, the most telling evidence of congressional intent is the fact that the Act's amended definition of equal work incorporated the specific language of the job evaluation plan described at the hearings by Corning's own representative—that is, the concepts of 'skill,' 'effort,' 'responsibility,' and 'working conditions.'
23
Congress' intent, as manifested in this history, was to use these terms of incorporate into the new federal Act the well-defined and well-accepted principles of job evaluation so as to ensure that wage differentials based upon bona fide job evaluation plans would be outside the purview of the Act. The House Report emphasized.
24
'This language recognizes that there are many factors which may be used to measure the relationships between jobs and which establish a valid basis for a difference in pay. These factors will be found in a majority of the job classification systems. Thus, it is anticipated that a bona fide job classification program that does not discriminate on the basis of sex will serve as a valid defense to a charge of discrimination.' H.R.Rep.No.309, supra, at 3, U.S.Code Cong. & Admin.News, 1963, pp. 688, 689.
25
It is in this light that the phrase 'working conditions' must be understood, for where Congress has used technical words or terms of art, 'it (is) proper to explain them by reference to the art or science to which they (are) appropriate.' Greenleaf v. Goodrich, 101 U.S. 278, 284, 25 L.Ed. 845 (1880). See also NLRB v. Highland Park Mfg. Co., 341 U.S. 322, 326, 71 S.Ct. 758, 761, 95 L.Ed. 969 (1951) (Frankfurter, J., dissenting). This principle is particularly salutary where, as here, the legislative history reveals that Congress incorporated words having a special meaning within the field regulated by the statute so as to overcome objections by industry representatives that statutory definitions were vague and incomplete.
26
While a layman might well assume that time of day worked reflects one aspect of a job's 'working conditions,' the term has a different and much more specific meaning in the language of industrial relations. As Corning's own representative testified at the hearings, the element of working conditions encompasses two subfactors: 'surroundings' and 'hazards.'20 'Surroundings' measures the elements, such as toxic chemicals or fumes, regularly encountered by a worker, their intensity, and their frequency. 'Hazards' takes into account the physical hazards regularly encountered, their frequency, and the severity of injury they can cause. This definition of 'working conditions' is not only manifested in Corning's own job evaluation plans but is also well accepted across a wide range of American industry.21
27
Nowhere in any of these definitions is time of day worked mentioned as a relevant criterion. The fact of the matter is that the concept of 'working conditions,' as used in the specialized language of job evaluation systems, simply does not encompass shift differentials. Indeed, while Corning now argues that night inspection work is not equal to day inspection work, all of its own job evaluation plans, including the one now in effect, have consistently treated them as equal in all respects, including working conditions.22 And Corning's Manager of Job Evaluation testified in No. 73—29 that time of day worked was not considered to be a 'working condition.'23 Significantly, it is not the Secretary in this case who is trying to look behind Corning's bona fide job evaluation system to require equal pay for jobs which Corning has historically viewed as unequal work. Rather, it is Corning which asks us to differentiate between jobs which the company itself has always equated. We agree with the Second Circuit that the inspection work at issue in this case, whether performed during the day or night, is 'equal work' as that term is defined in the Act.24
28
This does not mean, of course, that there is no room in the Equal Pay Act for nondiscriminatory shift differentials. Work on a steady night shift no doubt has psychological and physiological impacts making it less attractive than work on a day shift. The Act contemplates that a male night worker may receive a higher wage than a female day worker, just as it contemplates that a male employee with 20 years' seniority can receive a higher wage than a woman with two years' seniority Factors such as these play a role under the Act's four exceptions—the seniority differential under the specific seniority exception, the shift differential under the catch-all exception for differentials 'based on any other factor other than sex.'25
29
The question remains, however, whether Corning carried its burden of proving that the higher rate paid for night inspection work, until 1966 performed solely by men, was in fact intended to serve as compensation for night work, or rather constituted an added payment based upon sex. We agree that the record amply supports the District Court's conclusion that Corning had not sustained its burden of proof.26 As its history revealed, 'the higher night rate was in large part the product of the generally higher wage level of male workers and the need to compensate them for performing what were regarded as demeaning tasks.' 474 F.2d, at 233. The differential in base wages originated at a time when no other night employees received higher pay than corresponding day workers, and it was maintained long after the company instituted a separate plant-wide shift differential which was thought to compensate adequately for the additional burdens of night work. The differential arose simply because men would not work at the low rates paid women inspectors, and it reflected a job market in which Corning could pay women less than men for the same work. That the company took advantage of such a situation may be understandable as a matter of economics, but its differential nevertheless became illegal once Congress enacted into law the principle of equal pay for equal work.
III
30
We now must consider whether Corning continued to remain in violation of the Act after 1966 when, without changing the base wage rates for day and night inspectors, it began to permit women to bid for jobs on the night shift as vacancies occurred. It is evident that this was more than a token gesture to end discrimination, as turnover in the night shift inspection jobs was rapid. The record in No. 73—29 shows, for example, that during the two-year period after June 1, 1966, the date women were first permitted to bid for night inspection jobs, women took 152 of the 278 openings, and women with very little seniority were able to obtain positions on the night shift. Relying on these facts, the company argues that it ceased discriminating against women in 1966, and was no longer in violation of the Equal Pay Act.
31
But the issue before us is not whether the company, in some abstract sense, can be said to have treated men the same as women after 1966. Rather, the question is whether the company remedied the specific violation of the Act which the Secretary proved. We agree with the Second Circuit, as well as with all other circuits that have had occasion to consider this issue, that the company could not cure its violation except by equalizing the base wages of female day inspectors with the higher rates paid the night inspectors. This result is implicit in the Act's language, its statement of purpose, and its legislative history.
32
As the Second Circuit noted, Congress enacted the Equal Pay Act '(r)ecognizing the weaker bargaining position of many women and believing that discrimination in wage rates represented unfair employer exploitation of this source of cheap labor.' 474 F.2d, at 234. In response to evidence of the many families dependent on the income of working women, Congress included in the Act's statement of purpose a finding the base wages of female day inspec-wage differentials based on sex . . . depresses wages and living standards for employees necessary for their health and efficiency.' Pub.L. 88—38, § 2(a) (1), 77 Stat. 56 (1963). And Congress declared it to be the policy of the Act to correct this condition. § 2(b).
33
To achieve this end, Congress required that employers pay equal pay for equal work and then specified:
34
'provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee.' 29 U.S.C. § 206(d) (1).
35
The purpose of this proviso was to ensure that to remedy violations of the Act, '(t)he lower wage rate must be increased to the level of the higher.' H.R.Rep.No.309, supra, at 3, U.S.Code Cong. & Admin.News, 1963, p. 688. Comments of individual legislators are all consistent with this view. Representative Dwyer remarked, for example, 'The objective of equal pay legislation . . . is not to drag down men workers to the wage levels of women, but to raise women to the levels enjoyed by men in cases where discrimination is still practiced.'27 Representative Griffin also thought it clear that '(t)he only way a violation could be remedied under the bill . . . is for the lower wages to be raised to the higher.'28
36
By proving that after the effective date of the Equal Pay Act, Corning paid female day inspectors less than male night inspectors for equal work, the Secretary implicitly demonstrated that the wages of female day shift inspectors were unlawfully depressed and that the fair wage for inspection work was the base wage paid to male inspectors on the night shift. The whole purpose of the Act was to require that these depressed wages be raised, in part as a matter of simple justice to the employees themselves, but also as a matter of market economics, since Congress recognized as well that discrimination in wages on the basis of sex 'constitutes an unfair method of competition.' Pub.L. 88—38, supra, § 2(a)(5).
We agree with JudgeFriendly that
37
'In light of this apparent congressional understanding, we cannot hold that Corning, by allowing some—or even many—women to move into the higher paid night jobs, achieved full compliance with the Act. Corning's action still left the inspectors on the day shift—virtually all women—earning a lower base wage than the night shift inspectors because of a differential initially based on sex and still not justified by any other consideration; in effect, Corning was still taking advantage of the availability of female labor to fill its day shift at a differentially low wage rate not justified by any factor other than sex.' 474 F.2d, at 235.
38
The Equal Pay Act is broadly remedial, and it should be construed and applied so as to fulfill the underlying purposes which Congress sought to achieve. If, as the Secretary proved, the work performed by women on the day shift was equal to that performed by men on the night shift, the company became obligated to pay the women the same base wage as their male counterparts on the effective date of the Act. To permit the company to escape that obligation by agreeing to allow some women to work on the night shift at a higher rate of pay as vacancies occurred would frustrate, not serve, Congress' ends. See Shultz v. American Can Co.—Dixie Products, 424 F.2d 356, 359 (CA8 1970); Hodgson v. Miller Brewing Co., 457 F.2d 221, 227 (CA7 1972); Hodgson v. Square D Co., 459 F.2d 805, 808—809 (CA6 1972).
39
The company's final contention—that it cured its violation of the Act when a new collective-bargaining agreement went into effect on January 20, 1969—need not detain us long. While the new agreement provided for equal base wages for night or day inspectors hired after that date, it continued to provide unequal base wages for employees hired before that date, a discrimination likely to continue for some time into the future because of a large number of laid-off employees who had to be offered re-employment before new inspectors could be hired. After considering the rather complex method in which the new wage rates for employees hired prior to January 1969 were calculated and the company's stated purpose behind the provisions of the new agreement, the District Court in No. 73—29 concluded that the lower base wage for day inspectors was a direct product of the company's failure to equalize the base wages for male and female inspectors as of the effective date of the Act. We agree it is clear from the record that had the company equalized the base-wage rates of male and female inspectors on the effective date of the Act, as the law required, the day inspectors in 1969 would have been entitled to the same higher 'red circle' rate the company provided for night inspectors.29 We therefore conclude that on the facts of this case, the company's continued discrimination in base wages between night and day workers, though phrased in terms of a neutral factor other than sex, nevertheless operated to perpetuate the effects of the company's prior illegal practice of paying women less than men for equal work. Cf. Griggs v. Duke Power Co., 401 U.S. 424, 430, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971).
40
The judgment in No. 73—29 is affirmed. The judgment in No. 73 695 is reversed and the case remanded to the Court of Appeals for further proceedings consistent with this opinion.
41
It is so ordered.
42
Judgment in No. 73—29 affirmed; judgment in No. 73—695 reversed and case remanded.
43
Mr. Justice STEWART took no part in the consideration or decision of these cases.
44
THE CHIEF JUSTICE, Mr. Justice BLACKMUN, and Mr. Justice REHNQUIST dissent and would affirm the judgment of the Court of Appeals for the Third Circuit and reverse the judgment of the Court of Appeals for the Second Circuit for the reasons stated by Judge Adams in his opinion for the Court of Appeals in Brennan v. Corning Glass Works, 480 F.2d 1254 (CA3 1973).
1
'No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee.'
2
New York prohibited the employment of women between 10 p.m. and 6 a.m. See 1927 N.Y.Laws, c. 453; 1930 N.Y.Laws, c. 868. Pennsylvania also prohibited them from working between 10 p.m. and 6 a.m. See Act of July 25, 1913, Act No. 466, Pa.Laws 1913.
3
Higher wages were demanded in part because the men had been earning more money on their day shift jobs than women were paid for inspection work. Thus, at the time of the creation of the new night shift, female day shift inspectors received wages ranging from 20 to 30 cents per hour. Most of the men designated to fill the newly created night shift positions had been working in the blowing room where the lowest wage rate was 48 cents per hour and where additional incentive pay could be earned. As night shift inspectors these men received 53 cents per hour. There is also some evidence in the record that additional compensation was necessary because the men viewed inspection jobs as 'demeaning' and as 'women's work.'
4
A temporary exception was made during World War II when manpower shortages caused Corning to be permitted to employ women on the steady night shift inspection jobs at both locations. It appears that women night inspectors during this period were paid the same higher night shift wages earned by the men.
5
The shift differential was originally three cents an hour for the afternoon shift and five cents an hour for the night shift. It has been increased to 10 and 16 cents per hour respectively.
6
Section 4 of the Equal Pay Act provided that the Act would take effect upon the expiration of one year from June 10, 1963, the date of its enactment, except that in the case of employees covered by a bona fide collective-bargaining agreement in effect at least 30 days prior to the date of enactment, the Act would take effect upon the termination of such collective-bargaining agreement. It is conceded that the Act became effective with respect to the Corning, New York, plants on June 11, 1964, though it is also stipulated that the statute of limitations barred all claims for backpay prior to November 1, 1964. With respect to the Wellsboro plant, there is apparently some dispute between the company and the Secretary as to when the Act took effect. Corning evidently believes the Act took effect on January 20, 1965, because of an outstanding collective-bargaining agreement. The Secretary claims that this agreement was reopened on January 24, 1964, and that the plant therefore became subject to the Act's requirements on June 11, 1964, one year after enactment. We see no need to resolve this question as it appears that, in any event, the parties agree the statute of limitations bars recovery of back wages for any violation prior to October 1966.
7
In New York, a 1953 amendment allowed females over the age of 21 to work after midnight in factories operating multiple shifts where the Industrial Commissioner found transportation and safety conditions to be satisfactory and granted approval. See 1953 N.Y.Laws, c. 708, amending N.Y.Labor Law § 172, formerly codified in N.Y.Labor Law § 173(3)(a)(1) (1965) (McKinney's Consol.Laws, c. 31). In Pennsylvania, the law was amended in 1947 to permit women to work at night conditioned upon the approval of the State Department of Labor and Industry, Pa.Laws 1947, Act No. 543, p. 1397, codified in Pa.Stat.Ann., Tit. 43, § 104 (Supp.1974 1975), but state regulations required that, in order to obtain approval to employ women at night, an employer was required to furnish transportation where public transportation was not available. The District Court in No. 73—695 found that public transportation was not available in Wellsboro and that it was not economically feasible for Corning to furnish transportation for its female employees. In July 1965, however, the Pennsylvania regulations were amended to permit employers to hire women at night where regular private transportation is available. Pa.Dept. of Labor and Industry, Regulations Relating to Hours of Work and Conditions of Employment of Women in Pa., Rule S—8(c) (1966).
In 1969, both New York and Pennsylvania repealed, either expressly or by implication, those special night-work restrictions for women cited above. See 2 N.Y.Laws 1969, c. 1042, § 2, p. 2630, repealing N.Y.Labor Law § 173.3.a(1) (1965) and replacing it with § 177.1(c), which was subsequently repealed in 1973, 1 N.Y.Laws 1973, c. 377, § 11, p. 1336; Pa.Laws 1969, Act No. 56, p. 133, which, by including sex as a prohibited form of discrimination, Pa.Stat.Ann., Tit. 43, § 951 et seq. (Supp.1974—1975), impliedly voided all laws and regulations specifically protecting one sex. See Op.Atty.Gen. No. 69—304, Dec. 5, 1969.
8
The District Court in No. 73—29 issued a broadly worded injunction against all future violations of the Act. The Court of Appeals modified the injunction by limiting it to inspectors at the three plants at issue in that case, largely because of that Court's belief that 'Corning had been endeavoring since 1966 sincerely, if ineffectively—to bring itself into compliance.' 474 F.2d 226, 236 (CA2 1973). Since the Government did not seek certiorari from this aspect of the Second Circuit's judgment, we have no occasion to consider this question.
9
See 109 Cong.Rec. 9196 (1963) (Rep. Frelinghuysen); 109 Cong.Rec. 9208 Rep. Goodell).
10
Hodgson v. Corning Glass Works, 474 F.2d 226, 231 (CA2 1973); Brennan v. Corning Glass Works, 480 F.2d 1254, 1258 (CA3 1973). See also Hodgson v. Behrens Drug Co., 475 F.2d 1041, 1049 (CA5 1973); Hodgson v. Golden Isles Convalescent Homes, Inc., 468 F.2d 1256, 1257 (CA5 1972); Hodgson v. Fairmont Supply Co., 454 F.2d 490, 493 (CA4 1972); Hodgson v. Brookhaven General Hospital, 436 F.2d 719, 722 (CA5 1970); Shultz v. American Can Co.-Dixie Products, 424 F.2d 356, 360 (CA8 1970).
11
See Hodgson v. Corning Glass Works, supra, 474 F.2d, at 231; Brennan v. Corning Glass Works, supra, 480 F.2d, at 1258; Hodgson v. Robert Hall Clothes, Inc., 473 F.2d 589, 597 (CA3), cert. denied sub nom. Brennan v. Robert Hall Clothes, Inc., 414 U.S. 866, 94 S.Ct. 50, 38 L.Ed.2d 85 (1973); Hodgson v. Security Nat. Bank of Sioux City, 460 F.2d 57, 59 n. 4 (CA8 1972); Shultz v. Wheaton Glass Co., 421 F.2d 259, 266 (CA3), cert. denied, 398 U.S. 905, 90 S.Ct. 1696, 26 L.Ed.2d 64 (1970); Shultz v. American Can Co., supra, 424 F.2d, at 362; Shultz v. First Victoria Nat. Bank, 420 F.2d 648, 654 n. 8 (CA5 1969); Hodgson v. Industrial Bank of Savannah, 347 F.Supp. 63, 67 (SD Ga.1972); Hodgson v. Maison Miramon, Inc., 344 F.Supp. 843, 845 (ED La.1972); Hodgson v. J. W. Lyles, Inc., 335 F.Supp. 128, 131 (Md.1971), aff'd, 468 F.2d 625 (CA4 1972); Hodgson v. City Stores, Inc., 332 F.Supp. 942, 947 (MD Ala.1971); Shultz v. Kimberly-Clark Corp., 315 F.Supp. 1323, 1332 (WD Tenn.1970); Wirtz v. Basic Inc., 256 F.Supp. 786, 790 (Nev.1966). See also 29 CFR § 800.141 (1973).
12
See A. H. Phillips, Inc. v. Walling, 324 U.S. 490, 493, 65 S.Ct. 807, 808, 89 L.Ed. 1095 (1945); Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 456, 4 L.Ed.2d 393 (1960); Walling v. General Industries Co., 330 U.S. 545, 547—548, 67 S.Ct. 883, 884, 91 L.Ed. 1088 (1947); Mitchell v. Kentucky Finance Co., 359 U.S. 290, 295, 79 S.Ct. 756, 759, 3 L.Ed.2d 815 (1959).
13
The Secretary also advances an argument that even if night and day inspection work is ashamed not to be performed under similar working conditions, the differential in base wages is nevertheless unlawful under the Act. The additional burden of working at night, the argument goes, was already fully reflected in the plant-wide shift differential, and the shifts were made 'similar' by payment of the shift differential. This argument does not appear to have been presented to either the Second or the Third Circuit, as the opinions in both cases reflect an assumption on the part of all concerned that the Secretary's case would fail unless night and day inspection work was found to be performed under similar working conditions. For this reason, and in view of our resolution of the 'working condition' issue, we have no occasion to consider and intimate no views on this aspect of the Secretary's argument.
14
See S. 882, 88th Cong., 1st Sess., § 4 (1963); cf. S. 910, 88th Cong., 1st Sess., § 4(a) (1963).
15
See, e.g., Hearings On Equal Pay Act of 1963 before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 88th Cong., 1st Sess., 26, 73, 79, 124, 140, 178 (1963) (hereinafter Senate Hearings); Hearings on Equal Pay Act before the Special Subcommittee on Labor of the House Committee on Education and Labor, 88th Cong., 1st Sess., 145—146 (1963) (hereinafter House Hearings).
16
See Senate Hearings 96—104; House Hearings 232—240. See also House Hearings 304—305, 307—308.
17
See, e.g., Senate Hearings 73, 74, 79, 124, 130, 138, 140, 178; House Hearings 145, 146, 159, 199—200.
18
Senate Hearings 98; House Hearings 234.
19
109 Cong.Rec. 9195 (1963) (Rep. Freling-huysen). See also H.R.Rep.No.309, 88th Cong., 1st Sess., 8 (1963).
20
Senate Hearings 98—99; House Hearings 234—236.
21
See D. Belcher, Wage and Salary Administration 271—274, 278, 287—289 (1955); 2 United States Dept. of Labor, Dictionary of Occupational Titles 656 (3d ed. 1965); United States Civil Service Commission, Job Grading System for Trades and Labor Occupations, F.P.M.Supp. 512—1, p. A3—3 (1970).
22
Pursuant to its 1944 collective-bargaining agreement, Corning adopted a job classification system developed by its consultants, labeled the SJ&H plan, which evaluated inspector jobs on the basis of 'general schooling,' 'training period,' 'manual skill,' 'versatility,' 'job knowledge,' 'responsibility,' and 'working conditions.' Under this evaluation, the inspector jobs, regardless of shift, were found equal in all respects, including 'working conditions,' which were defined as the 'surrounding conditions (wet, heat, cold, dust, grease, noises, etc.) and physical hazards (bruises, cuts, heavy lifting, fumes, slippery floors, machines, chemicals, gases, bodily injuries, etc.) to which employees are unavoidably subjected while performing the duties.'
A new plan, put into effect in 1963—1964 and called the CGW plan, also found no significant differences in the duties performed by men and women inspectors and awarded the same point values for skill, effort, responsibility, and working conditions, regardless of shift.
23
App. 66.
24
In No. 73—29, Corning also claimed that the night inspection work was not equal to day shift inspection work because night shift inspectors had to do a certain amount of packing, lifting, and cleaning which was not performed by day shift inspectors. Noting that it is now well settled that jobs need not be identical in every respect before the Equal Pay Act is applicable, the Court of Appeals concluded that the extra work performed by night inspectors was of so little consequence that the jobs remained substantially equal. See 474 F.2d, at 234. See also Shultz v. Wheaton Glass Co., 421 F.2d, at 265; Shultz v. American Can Co., 424 F.2d, at 360; Hodgson v. Fairmont Supply Co., 454 F.2d, at 493. The company has not pursued this issue here.
25
An administrative interpretation by the Wage and Hour Administrator recognizes the legitimacy of night shift differentials shown to be based on a factor other than sex. See 29 CFR § 800.145 (1973).
26
This question, as well as the questions discussed in Part III, infra, were considered by the District Court and the Court of Appeals only in No. 73—29, and not in No. 73—695, since in the latter case the courts below concluded that the Secretary had failed to prove that night and day shift inspection work was performed under similar working conditions. We deal with these issues, then, only on the basis of the record in No. 73—29. To the extent that there are any differences in the records in these two cases on factual matters relating to these questions, we leave it to the District Court and the Court of Appeals in No. 73—695 to resolve these questions, in the first instance, on the basis of the record created in that case.
27
109 Cong.Rec. 2714 (1963).
28
House Hearings, supra, n. 15, at 65. See also 109 Cong.Rec. 9196 (Rep. Thompson).
29
The January 1969 agreement provided an 8% or 20¢ per hour across-the-board wage increase, applied to the pre-January 1969 base wage and made retroactive to November 4, 1968. The contract also instituted new 'job evaluation' wage rates for various positions. In the case of inspectors, the new 'job evaluation' rate was higher than the retroactively increased base wage of day shift inspectors but was lower than the retroactively increased base wage of night shift inspectors. The contract further provided that where the job evaluation rate was less than the current rate for the job—that is, less than the retroactively increased old rate—employees hired before January 20, 1969, would continue to be paid the old rate, through 'red circle' protection. Thus, the day shift inspectors received the new job evaluation rate, while the night shift inspectors continued to receive the higher 'red circle' night shift base wage. Had the company complied with the law and equalized the base wages of day shift inspectors prior to 1969, the retroactively increased base wage of day shift inspectors would have been the same as the retroactively increased rate of night shift inspectors, and the day shift inspectors would have been entitled to the same 'red circle' protection granted the night shift inspectors, since that retroactively increased rate was higher than the new job evaluation rate.
| 12
|
417 U.S. 270
94 S.Ct. 2248
41 L.Ed.2d 61
State of VERMONTv.State of NEW YORK et al.
No. 50, Orig.
June 3, 1974.
PER CURIAM.
1
On April 24, 1972, after oral argument, we granted Vermont's motion to file bill of complaint against New York and the International Paper Co. which alleged that as a result of discharge of wastes, largely from International's mills, that company and New York are responsible for a sludge bed in Lake Champlain and Ticonderoga Creek that has polluted the water, impeded navigation, and constituted a public nuisance. 406 U.S. 186, 92 S.Ct. 1603, 31 L.Ed.2d 785. Issue was joined and the Honorable R. Ammi Cutter was appointed Special Master. 408 U.S. 917, 92 S.Ct. 2475, 33 L.Ed.2d 329. Later the United States sought leave to intervene, stating it had numerous interests in these waters under federal statutes. We referred the motion to the Special Master, 409 U.S. 1103, 93 S.Ct. 892, 34 L.Ed.2d 684, who granted intervention. During the year 1973, 75 days of testimony were received, Vermont presenting substantially all of its direct case. New York has put in about half of its direct case. Neither International nor the United States up to now has offered any evidence.
2
The Report of the Special Master dated April 24, 1974, states that he suggested that the parties might adjust their differences less expensively than by litigation. He reports that the United States succeeded in bringing about serious negotiations which resulted in a settlement that the Special Master commends to the Court for approval. The proposed settlement is represented by a Proposed Consent Decree and a stipulation that the Decree may be entered by the Court without further argument or hearing.
3
The settlement 'contemplates that no findings shall be made' and it provides that 'it shall not constitute an adjudication on any issue of fact or law, or evidence, or any admission by any party with respect to any such issue.' The Special Master reports, 'In my opinion, no settlement would be possible if this report were to contain any findings.' He adds that in his opinion 'it reaches a reasonable result, consistent with the public interest, and acceptable on the basis of the evidence thus far presented.'
4
By Art. I of the Decree a special South Lake Master1 is to be appointed with all the usual powers of Special Masters named by us. He is to resolve matters of controversy between the parties after they have exhausted all administrative and other remedies (except judicial review). When he has decided the matter, he will file his recommendation with the Clerk if the Court. Unless any party 'aggrieved' files exceptions with the Court within 30 days, it becomes a decision of the Court 'unless disapproved by the Court.' Proposed Decree, Schedule 1, § 1.6. But noting in Schedule 1 limits any regulatory or law enforcement authority 'with lawful jurisdiction independently to carry out or enforce applicable law and regulations.'
5
After nine years from our approval of the Decree, the South Lake Master on application for modification of it may submit his recommendations to the Court without prior exhaustion of administrative remedies before the federal and New York authorities or after such exhaustion, as he chooses.
6
The South Lake Master may order International to permit inspection of Old Mill2 or New Mill3 on showing of good cause. Schedule 1, § 1.7.
7
Schedule 2 of the Proposed Decree provides for grading and covering the bark pile near Old Mill and for lowering the water level in an adjacent pond to reduce the drainage of the bark pile into Ticonderoga or tributaries.
8
Schedule 3 prescribes methods of control of malodorous air emissions from New Mill; and Schedule 1, § 1.5(b), provides that notwithstanding the provisions of Schedule 3, if, after November 1, 1975, objectionable odors attributable to New Mill are detected in Vermont 'during a significant period of time,' the South Lake Master may recommend 'other or further action or relief.'
9
Within 30 days after approval of the Proposed Decree, International shall submit an emergency report 'for a conceptual plan' to modify the air emission controls specified in Schedule 3 and, if approved by New York, the new equipment and materials for the facilities shall be completed and in operation no later than November 1, 1975. Schedule 3, § 3.2(c)(7).
10
Schedule 3, § 3.3, states the volume of Total Reduced Sulfur (TRS) from International's 'recovery boiler' once the Proposed Decree is approved. Section 3.4(a) states the standard for emissions of TRS from the lime kiln and § 3.4(b), the amount of sodium hydroxide in the scrubbing solution in the lime kiln scrubber.
11
Schedule 4 covers the water discharge from New Mill. It specifies in § 4.1(a) that the amount of BOD54 in the waste water will not exceed 4400 pounds per day as a monthly average. Section 4.1(b) specifies the maximum total phosphorus in the process waste-water effluent. Section 4.2 provides that the effluent will be considered toxic, if over a 96-hour period, 20% of the test fish (yellow perch) fail to survive in a solution composed of 65% process waste-water effluent and 35% of Lake Champlain water.
12
Section 4.3 and 4.4 provide clinical and other water tests for International to make at stated intervals.
13
Appendix A 'delivered pursuant to the command of the Supreme Court of the United States' is a release of International by Vermont of all damages past, present, and future caused (1) by the accumulation of sediment in Ticonderoga Creek and the Ticonderoga Bay area of the lake; (2) by the discharge of waters from Old Mill prior to the date of entry of the decree; (3) by air emissions from Old Mill prior to such date; and (4) by air emissions from New Mill prior to that date.
14
Appendix B states the position of the United States that it is not in the public interest to remove the sludge deposits and that dredging them is not justified.
15
Appendix C is a release of International by the United States from all liability for the accumulation of sediment in Ticonderoga Creek and the Ticonderoga Bay area because of past waste discharges, save for costs arising out of remedial action taken as a consequence of 'the needs of anchorage or navigation.'
16
The Special Master has done a very difficult task well and with distinction; we are indeed grateful for the professional services he has rendered. But we have concluded not to approve the Proposed Decree or appoint a South Lake Master.
17
* In Wisconsin v. Illinois, 281 U.S. 696, 50 S.Ct. 331, 74 L.Ed. 1123, the Court on the report of a Special Master enjoined the Sanitary District of Chicago from withdrawing through the Chicago drainage canal more than a stated number of cubic feet of water per second. That was on April 21, 1930. On May 22, 1933, on application of the States for a 'commissioner or special officer' to execute the decree, the Court ordered Illinois to take certain steps respecting the diversion, but it denied the request to appoint the commissioner. 289 U.S. 710, 711, 53 S.Ct. 671, 677 678, 77 L.Ed. 1283.
18
Wyoming v. Colorado, 259 U.S. 419, 42 S.Ct. 552, 66 L.Ed. 999, 260 U.S. 1, 43 S.Ct. 2, 66 L.Ed. 1026, involved an allocation of the waters of the Laramie River. The parties were once more before the Court in 1936, 298 U.S. 573, 56 S.Ct. 912, 80 L.Ed. 1339. This time the Court entered an injunction against continuing diversions contrary to the prior decrees, id., at 582—583, 56 S.Ct. at 916—917. The Court refused to order measuring devices at places of diversion or to appoint a water master to keep the records, the Court saying, 'While the problem of measuring and recording the diversions is a difficult one, we entertain the hope that the two States will by co-operative efforts accomplish a satisfactory solution of it.' Id., at 586, 56 S.Ct., at 918. In time the two States, policing themselves, resolved the controversy, 309 U.S. 572, 60 S.Ct. 765, 84 L.Ed. 954.
19
We noted in Nebraska v. Wyoming, 325 U.S. 589, 616, 65 S.Ct. 1332, 1349, 89 L.Ed. 1815, that continuing Court supervision over decrees of equitable apportionment of waters was undesirable.
20
New Jersey v. New York, 283 U.S. 805, 51 S.Ct. 645, 75 L.Ed. 1425, is not an exception. It involved a dispute between New Jersey, New York, New York City, and Pennsylvania over the waters of the Delaware River. The decree was an equitable apportionment of the water coupled with protective provisions, first, for a sewage disposal plant at Port Jervis, New York, that met prescribed cleansing standards; second, the banning of the discharge of untreated industrial wastes into the Delaware and neversink Rivers; and third, the treatment of industrial wastes practically to free them 'from suspended matter and (to render them) non-putrescent.' Ibid. That decree, entered May 25, 1931, was modified June 7, 1954, 347 U.S. 995, 74 S.Ct. 842, 98 L.Ed. 1127, when a Special Master's Report was approved. The prior equitable apportionment was altered, and new and somewhat different formulae to measure and control the diversions were provided. A River Master was to be selected by the Chief Hydraulic Engineer of the U.S. Geological Survey to administer the decree. Id., at 1002, 74 S.Ct., at 845. He was authorized to measure the actual diversions, ibid., compile data, collect and correlate stream-flow gauging, make periodic reports, and make designated changes in the volume of daily releases, id., at 1003, 74 S.Ct., at 845.
21
But it is a rare case where we have appointed a Water Master. The one appointed in New Jersey v. New York was given only ministerial acts to perform, such as reading gauges and measuring the flow. In that case (1) the rights of the parties to the water had been determined by the Court and (2) the sewage and industrial waste problems had been adjudicated and resolved.5 All that remained was to supervise the application of the various formulae which the Court had decreed, based on findings of fact.
22
Wisconsin v. Illinois, 281 U.S. 179, 50 S.Ct. 266, 74 L.Ed. 799, involved the use of Lake Michigan waters by a sanitary district in Illinois to operate sewage treatment plants. The Court had ordered Illinois to restrict its use of Lake Michigan waters and to build certain facilities to allow treatment without the use of a great deal of lake waters. Illinois was given certain timetables for completion of the new facilities. The Special Master recommended either the appointment of a commission to supervise the construction or the filing of progress reports by the sanitary commission with the Clerk of this Court. The Court chose the option of not appointing a commission, and instead ordered the district to file semi-annual compliance reports with the Court. Masters were appointed at several points in this litigation for specific short-term purposes, but no quasi-permanent master to oversee general compliance was appointed. After the district was ordered to construct the facilities, Illinois impeded progress by withholding necessary state funds. The parties asked for a master to police compliance with the decree. The Court appointed a Master to investigate but he was relieved after the receipt of his report. Illinois was ordered to supply the necessary funds and to report its compliance with the Clerk of the Court. 289 U.S. 395, 411—412, 53 S.Ct. 671, 677, 77 L.Ed. 1283.
23
In the instant case no findings of fact have been made; nor has any ruling been resolved concerning either equitable apportionment of the water involved or the questions relative to whether New York and International are responsible for the creation of a public nuisance as alleged by Vermont.6
24
The proposed South Lake Master would police the execution of the settlement set forth in the Decree and pass on to this Court his proposed resolution of contested issues that the future might bring forth. Such a procedure would materially change the function of the Court in these interstate contests. Insofar as we would be supervising the execution of the Consent Decree, we would be acting more in an arbitral rather than a judicial manner. Our original jurisdiction heretofore has been deemed to extend to adjudications of controversies between States according to principles of law, some drawn from the international field, some expressing a 'common law' formulated over the decades by this Court.
25
The proposals submitted by the South Lake Master to this Court might be proposals having no relation to law. Like the present Decree they might be mere settlements by the parties acting under compulsions and motives that have no relation to performance of our Art. III functions. Article III speaks of the 'judicial power' of this Court, which embraces application of principles of law or equity to facts, distilled by hearings or by stipulations. Nothing in the Proposed Decree nor in the mandate to be given the South Lake Master speaks in terms of 'judicial power.'
II
26
The parties have available other and perhaps more appropriate means of reaching the results desired under the Proposed Court Decree. An interstate compact under Act. I, § 10, cl. 3, is a possible solution of the conflict here. Vermont and New York (along with Connecticut, Maine, Massachusetts, New Hampshire, and Rhode Island) are allready parties to the New England Interstate Water Pollution Control Compact, 61 Stat. 682 (1947).
27
A settlement of this interstate dispute by agreement of the parties is another alternative. Once a consensus is reached there is no reason, absent a conflict with an interstate compact, why such a settlement would not be binding. And such a settlement might be the basis for a motion to dismiss the complaint. Cf. Missouri v. Nebraska, decided May 28, 1974, 417 U.S. 904, 94 S.Ct. 2599, 41 L.Ed.2d 209.
28
So ordered.
29
Proposed decree not approved.
1
South Lake Champlain 'means that portion of Lake Champlain extending from Whitehall, New York, to the Lake Champlain Bridge near Crown Point, New York.' Proposed Decree, Art. II (I).
2
Old Mill is located in the village of Ticonderoga and was long operated as a pulp and paper mill.
3
New Mill is located four miles north of that village.
4
This is the five-day biochemical oxygen demand of the process waste-water effluent as measured by a specified method.
5
Pollution of interstate waters raises questions in the area of the law of public nuisance as we recently noted in Illinois v. City of Milwaukee, 406 U.S. 91, 106—107, 92 S.Ct. 1385, 1394—1395, 31 L.Ed.2d 712.
6
Vermont also alleges that the deposit of sludge has caused a shift of the channel (the border between the two States) in New York's favor. Disputes over interstate boundaries are properly cognizable here. Michigan v. Wisconsin, 270 U.S. 295, 46 S.Ct. 290, 70 L.Ed. 595; Massachusetts v. New York, 271 U.S. 65, 46 S.Ct. 357, 70 L.Ed. 838.
| 78
|
417 U.S. 249
94 S.Ct. 2236
41 L.Ed.2d 46
HOWARD JOHNSON COMPANY, INC., Petitioner,v.DETROIT LOCAL JOINT EXECUTIVE BOARD, HOTEL AND RESTAURANT EMPLOYEES AND BARTENDERS INTERNATIONAL UNION, AFL-CIO.
No. 73—631.
Argued March 19 and 20, 1974.
Decided June 3, 1974.
Syllabus
Petitioner purchased the assets of a restaurant and motor lodge under an agreement whereby the sellers, who had been operating the enterprises under franchises from petitioner, retained the real property and leased it to petitioner, and petitioner expressly did not assume any of the sellers' obligations, including those under any collective-bargaining agreement. Deciding to hire its own work force to operate the enterprises, petitioner hired 45 employees, but only nine of the sellers' 53 former employees and none of the former supervisors. Respondent Union, which had collective-bargaining agreements with the sellers containing arbitration provisions, filed an action under § 301 of the Labor Management Relations Act, claiming that petitioner's failure to hire all the sellers' employees constituted a 'lockout' in violation of the agreements and seeking injunctive relief and an order compelling petitioner and the sellers to arbitrate the extent of their obligations to the sellers' employees under the agreements. The District Court held that petitioner was required to arbitrate, but denied the union's motion for a preliminary injunction requiring petitioner to hire all of the sellers' employees. The Court of Appeals affirmed the order compelling petitioner to arbitrate. Held: Petitioner was not required to arbitrate with the union in the circumstances of this case, since there was plainly no substantial continuity of identity in the work force hired by petitioner with that of the sellers, and no express or implied assumption of the agreement to arbitrate. John Wiley & Sons v. Linvingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898, distinguished. Petitioner had the right not to hire any of the sellers' employees, if it so desired, NLRB v. Burns Intern. Security Services, 406 U.S. 272, 92 S.Ct. 1571, 32 L.Ed.2d 61, and this right cannot be circumvented by the union's asserting its claims in a § 301 suit to compel arbitration rather than in an unfair labor practice context. Pp. 253—265.
6 Cir., 482 F.2d 489, reversed.
James D. Tracy, Detroit, Mich., for petitioner.
Laurence Gold, Washington, D.C., for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
Once again we are faced with the problem of defining the labor law obligations of a 'successor' employer to the employees of its predecessors. In this case, petitioner Howard Johnson Co. is the bona fide purchaser of the assets of a restaurant and motor lodge. Respondent Union was the bargaining representative of the employees of the previous operators, and had successfully concluded collective-bargaining agreements with them. In commencing its operation of the restaurant, Howard Johnson hired only a small fraction of the predecessors' employees. The question presented in this case is whether the Union may compel Howard Johnson to arbitrate, under the arbitration provisions of the collective-bargaining agreements signed by its predecessors, the extent of its obligations under those agreements to the predecessors' employees.
2
Prior to the sale at issue here, the Grissoms—Charles T. Grissom, P. L. Grissom, Ben Bibb, P. L. Grissom & Son, Inc., and the Belleville Restaurant Co., a corporation wholly owned by P. L. Grissom & Son—had operated a Howard Johnson's Motor Lodge and an adjacent Howard Johnson's Restaurant in Belleville, Michigan, under franchise agreements with the petitioner. Employees at both the restaurant and motor lodge were represented by the respondent Hotel & Restaurant Employees & Bartenders International Union.1 The Grissoms had entered into separate collective-bargaining agreements with the Union covering employees at the two establishments. Both agreements contained dispute settlement procedures leading ultimately to arbitration. Both agreements also provided that they would be binding upon the employer's 'successors, assigns, purchasers, lessees or transferees.'
3
On June 16, 1972, the Grissoms entered into an agreement with Howard Johnson to sell it all of the personal property used in connection with operation of the restaurant and motor lodge. The Grissoms retained ownership of the real property, leasing both premises to Howard Johnson. Howard Johnson did not agree to assume any of the Grissoms' obligations, except for four specific contracts relating to operation of the restaurant and motor lodge. On June 28, Howard Johnson mailed the Grissoms a letter, which they later acknowledged and confirmed, clarifying that '(i)t was understood and agreed that the Purchaser . . . would not recognize and assume any labor agreements between the Sellers . . . and any labor organizations,' and that it was further agreed that 'the Purchaser does not assume any obligations or liabilities of the Sellers resulting from any labor agreements . . ..'
4
Transfer of operation of the restaurant and motor lodge was set for midnight, July 23, 1972. On July 9, the Grissoms notified all of their employees that their employment would terminate as of that time. The Union was also notified of the termination of the Grissoms' business. On July 11, Howard Johnson advised the Union that it would not recognize the Union or assume any obligations under the existing collective-bargaining agreements.
5
After reaching agreement with the Grissoms, Howard Johnson began hiring its own work force. It placed advertisements in local newspapers, and posted notices in various places, including the restaurant and motor lodge. It began interviewing prospective employees on July 10, hired its first employees on July 18, and began training them at a Howard Johnson facility in Ann Arbor on July 20. Prior to the sale, the Grissoms had 53 employees. Howard Johnson commenced operations with 45 employees, 33 engaged in the restaurant and 12 in the motor lodge. Of these, only nine of the restaurant employees and none of the motor lodge employees had previously been employed by the Grissoms. None of the supervisory personnel employed by the Grissoms were hired by Howard Johnson.
6
The Union filed this action in the state courts on July 21. Characterizing Howard Johnson's failure to hire all of the employees of the Grissoms as a 'lockout' in violation of the collective-bargaining agreements, the Union sought a temporary restraining order enjoining this 'lockout' and an order compelling Howard Johnson and the Grissoms to arbitrate the extent of their obligations to the Grissom employees under the bargaining agreements. The state court granted an ex parte temporary restraining order, but the Company refused to honor it, claiming that it had not received adequate notice or service, and the order was dissolved after a hearing on July 24.
7
The defendants subsequently removed this action to the federal courts on the ground that it was brought under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185. At a hearing before the District Court on August 7, the Grissoms admitted that they were required to arbitrate in accordance with the terms of the collective-bargaining agreements they had signed and that an order compelling arbitration should issue. On August 22, the District Court, in a memorandum opinion unofficially reported at 81 L.R.R.M. 2329 (E.D.Mich.1972), held that Howard Johnson was also required to arbitrate the extent of its obligations to the former Grissom employees. The court denied, however, the Union's motion for a preliminary injunction requiring the Company to hire all the former Grissom employees, and granted a stay of its arbitration order pending appeal. Howard Johnson appealed the order compelling arbitration, but the Court of Appeals affirmed. 482 F.2d 489 (CA6 1973). We granted certiorari, 414 U.S. 1091, 94 S.Ct. 720, 38 L.Ed.2d 548 (1973), to consider the important labor law question presented. We reverse.
8
Both courts below relied heavily on this Court's decision in John Wiley & Sons v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964). In Wiley, the union representing the employees of a corporation which had disappeared through a merger sought to compel the surviving corporation, which had hired all of the merged corporation's employees and continued to operate the enterprise in a substantially identical form after the merger, to arbitrate under the merged corporation's collective-bargaining agreement. As Wiley was this Court's first experience with the difficult 'successorship' question, its holding was properly cautious and narrow:
9
'We hold that the disappearance by merger of a corporate employer which has entered into a collective bargaining agreement with a union does not automatically terminate all rights of the employees covered by the agreement, and that, in appropriate circumstances, present here, the successor employer may be required to arbitrate with the union under the agreement.' Id., at 548, 84 S.Ct., at 914.
10
Mr. Justice Harlan, writing for the Court, emphasized 'the central role of arbitration in effectuating national labor policy' and preventing industrial strife, and the need to afford some protection to the interests of the employees during a change of corporate ownership. Id., at 549, 84 S.Ct., at 914.
11
The courts below recognized that the reasoning of Wiley was to some extent inconsistent with our more recent decision in NLRB v. Burns International Security Services, 406 U.S. 272, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972). Bruns was the successful bidder on a contract to provide security services at a Lockheed Aircraft plant, and took a majority of its employees from the ranks of the guards employed at the plant by the previous contractor, Wackenhut. In refusing to enforce the Board's order finding that Burns' failure to honor the substantive provisions of the collective-bargaining agreement negotiated with Wackenhut was an unfair labor practice, we emphasized that freedom of collective bargaining—"private bargaining under governmental supervision of the procedure alone, without any official compulsion over the actual terms of the contract"—was a "fundamental premise" of the federal labor laws, id., at 287, 92 S.Ct., at 1582, quoting H. K. Porter Co. v. NLRB, 397 U.S. 99, 108, 90 S.Ct. 821, 25 L.Ed.2d 146 (1970), and that it was therefore improper to hold Burns to the substantive terms of a collective-bargaining agreement which it had neither expressly nor impliedly assumed. Burns also stressed that holding a new employer bound by the substantive terms of the pre-existing collective-bargaining agreement might inhibit the free transfer of capital, and that new employers must be free to make substantial changes in the operation of the enterprise. 406 U.S., at 287—288, 92 S.Ct., at 1582—1583.
12
The courts below held that Wiley rather than Burns was controlling here on the ground that Burns involved an NLRB order holding the employer bound by the substantive terms of the collective-bargaining agreement, whereas this case, like Wiley, involved a § 301 suit to compel arbitration. Although this distinction was in fact suggested by the Court's opinion in Burns, see id., at 285—286, 92 S.Ct., at 1581—1582, we do not believe that the fundamental policies outlined in Burns can be so lightly disregarded. In Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957), this Court held that § 301 of the Labor Management Relations Act authorized the federal courts to develop a federal common law regarding enforcement of collective-bargaining agreements. But Lincoln Mills did not envision any freewheeling inquiry into what the federal courts might find to be the most desirable rule, irrespective of congressional pronouncements. Rather, Lincoln Mills makes clear that this federal common law must be 'fashion(ed) from the policy of our national labor laws.' Id., at 456, 77 S.Ct., at 918, Mr. Justice Douglas described the process of analysis to be employed:
13
'The Labor Management Relations Act expressly furnishes some substantive law. It points out what the parties may or may not do in certain situations. Other problems will lie in the penumbra of express statutory mandates. Some will lack express statutory sanction but will be solved by looking at the policy of the legislation and fashioning a remedy that will effectuate that policy.' Id., at 457, 77 S.Ct., at 918.
14
It would be plainly inconsistent with this view to say that the basic policies found controlling in an unfair labor practice context may be disregarded by the courts in a suit under § 301, and thus to permit the rights enjoyed by the new employer in a successorship context to depend upon the forum in which the union presses its claims.2 Clearly the reasoning of Burns must be taken into account here.
15
We find it unnecessary, however, to decide in the circumstances of this case whether there is any irreconcilable conflict between Wiley and Burns. We believe that even on its own terms, Wiley does not support the decision of the courts below. The Court in Burns recognized that its decision 'turn(ed) to a great extent on the precise facts involved here.' 406 U.S., at 274, 92 S.Ct., at 1575. The same observation could have been made in Wiley, as indeed it could be made in this case. In our development of the federal common law under § 301, we must necessarily proceed cautiously, in the traditional case-by-case approach of the common law. Particularly in light of the difficulty of the successorship question, the myriad factual circumstances and legal contexts in which it can arise, and the absence of congressional guidance as to its resolution, emphasis on the facts of each case as it arises is especially appropriate. The Court was obviously well aware of this in Wiley, as its guarded, almost tentative statement of its holding amply demonstrates.
16
When the focus is placed on the facts of these cases, it becomes apparent that the decision below is an unwarranted extension of Wiley beyond any factual context it may have contemplated. Although it is true that both Wiley and this case involve § 301 suits to compel arbitration, the similarity ends there. Wiley involved a merger, as a result of which the initial employing entity completely disappeared. In contrast, this case involves only a sale of some assets, and the initial employers remain in existence as viable corporate entities, with substantial revenues from the lease of the motor lodge and restaurant to Howard Johnson. Although we have recognized that ordinarily there is no basis for distinguishing among mergers, consolidations, or purchases of assets in the analysis of successorship problems, see Golden State Bottling Co. v. NLRB, 414 U.S. 168, 182—183, n. 5, 94 S.Ct. 414, 424, 38 L.Ed.2d 388 (1973), we think these distinctions are relevant here for two reasons. First, the merger in Wiley was conducted 'against a background of state law that embodied the general rule that in merger situations the surviving corporation is liable for the obligations of the disappearing corporation,' Burns, 406 U.S., at 286, 92 S.Ct., at 1581, which suggests that holding Wiley bound to arbitrate under its predecessor's collective-bargaining agreement may have been fairly within the reasonable expectations of the parties. Second, the disappearance of the original employing entity in the Wiley merger meant that unless the union were afforded some remedy against Wiley, it would have no means to enforce the obligations voluntarily undertaken by the merged corporation, to the extent that those obligations vested prior to the merger or to the extent that its promises were intended to service a change of ownership. Here, in contrast, because the Grissom corporations continue as viable entities with substantial retained assets, the Union does have a realistic remedy to enforce their contractual obligations. Indeed, the Grissoms have agreed to arbitrate the extent of their liability to the Union and their former employees; presumably this arbitration will explore the question whether the Grissoms breached the successorship provisions of their collective-bargaining agreements, and what the remedy for this breach might be.3
17
Even more important, in Wiley the surviving corporation hired all of the employees of the disappearing corporation. Although, under Burns, the surviving corporation may have been entitled to make substantial changes in its operation of the enterprise, the plain fact is that it did not. As the arbitrator in Wiley subsequently stated:
18
'Although the Wiley merger was effective on October 2, 1961, the former Interscience employees continued to perform the same work on the same products under the same management at the same work place as before the change in the corporate employer.' Interscience Encyclopedia, Inc., 55 Lab.Arb. 210, 218 (1970).4
19
The claims which the union sought to compel Wiley to arbitrate were thus the claims of Wiley's employees as to the benefits they were entitled to receive in connection with their employment. It was on this basis that the Court in Wiley found that there was the 'substantial continuity of identity in the business enterprise,' 376 U.S., at 551, 84 S.Ct., at 915, which it held necessary before the successor employer could be compelled to arbitrate.
20
Here, however, Howard Johnson decided to select and hire its own independent work force to commence its operation of the restaurant and motor lodge.5 It therefore hired only nine of the 53 former Grissom employees and none of the Grissom supervisors. The primary purpose of the Union in seeking arbitration here with Howard Johnson is not to protect the rights of Howard Johnson's employees; rather, the Union primarily seeks arbitration on behalf of the former Grissom employees who were not hired by Howard Johnson. It is the Union's position that Howard Johnson was bound by the pre-existing collective-bargaining agreement to employ all of these former Grisson employees, except those who could be dismissed in accordance with the 'just cause' provision or laid off in accordance with the seniority provision. It is manifest from the Union's efforts to obtain injunctive relief requiring the Company to hire all of these employees that this is the heart of the controversy here. Indeed, at oral argument, the Union conceded that it would be making the same argument here if Howard Johnson had not hired any of the former Grissom employees,6 and that what was most important to the Union was the prospect that the arbitrator might order the Company to hire all of these employees.7
21
What the Union seeks here is completely at odds with the basic principles this Court elaborated in Burns. We found there that nothing in the federal labor laws 'requires that an employer . . . who purchases the assets of a business be obligated to hire all of the employees of the predecessor though it is possible that such an obligation might be assumed by the employer.' 406 U.S., at 280 n. 5, 92 S.Ct., at 1578. See also Golden State Bottling Co. v. NLRB, 414 U.S., at 184 n. 6, 94 S.Ct., at 425. Burns emphasized that '(a) potential employer may be willing to take over a moribund business only if he can make changes in corporate structure, composition of the labor force, . . . and nature of supervision.' 406 U.S., at 287—288, 92 S.Ct., at 1582. We rejected the Board's position in part because '(i)t would seemingly follow that employees of the predecessor would be deemed employees of the successor, dischargeable only in accordance with provisions of the contract and subject to the grievance and arbitration provisions thereof. Burns would not have been free to replace Wackenhut's guards with its own except as the contract permitted.' Id., at 288, 92 S.Ct., at 1582. Clearly, Burns establishes that Howard Johnson had the right not to hire any of the former Grissom employees, if it so desired.8 The Union's effort to circumvent this holding by asserting its claims in a § 301 suit to compel arbitration rather than in an unfair labor practice context cannot be permitted.
22
We do not believe that Wiley requires a successor employer to arbitrate in the circumstances of this case.9 The Court there held that arbitration could not be compelled unless there was 'substantial continuity of identity in the business enterprise' before and after a change of ownership, for otherwise the duty to arbitrate would be 'something imposed from without, not reasonably to be found in the particular bargaining agreement and the acts of the parties involved.' 376 U.S., at 551, 84 S.Ct., at 915. This continuity of identity in the business enterprise necessarily includes, we think, a substantial continuity in the identity of the work force across the change in ownership. The Wiley Court seemingly recognized this, as it found the requisite continuity present there in reliance on the 'wholesale transfer' of Interscience employees to Wiley. Ibid. This view is reflected in the emphasis most of the lower courts have placed on whether the successor employer hires a majority of the predecessor's employees in determining the legal obligations of the successor in § 301 suits under Wiley.10 This interpretation of Wiley is consistent also with the Court's concern with affording protection to those employees who are in fact retained in '(t)he transition from one corporate organization to another' from sudden changes in the terms and conditions of their employment, and with its belief that industrial strife would be avoided if these employees' claims were resolved by arbitration rather than by "the relative strength . . . of the contending forces." Id., at 549, 84 S.Ct., at 914 quoting United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 580, 80 S.Ct. 1347, 1351, 4 L.Ed.2d 1409 (1960). At the same time, it recognizes that the employees of the terminating employer have no legal right to continued employment with the new employer, and avoids the difficulties inherent in the Union's position in this case. This holding is compelled, in our view, if the protection afforded employee interests in a change of ownership by Wiley is to be reconciled with the new employer's right to operate the enterprise with his own independent labor force.
23
Since there was plainly no substantial continuity of identity in the work force hired by Howard Johnson with that of the Grissoms, and no express or implied assumption of the agreement to arbitrate, the courts below erred in compelling the Company to arbitrate the extent of its obligations to the former Grissom employees. Accordingly, the judgment of the Court of Appeals must be reversed.
24
Reversed.
25
Mr. Justice DOUGLAS, dissenting.
26
The petitioner, Howard Johnson, in 1959 and 1960 entered into franchise agreements with P. L. Grissom, P. L. Grissom & Son, Charles T. Grissom, Ben Bibb, and the Belleville Restaurant Company (hereinafter collectively the Grissoms) under which the franchise operated a Howard Johnson Restaurant and Motor Lodge. In 1968 the Grissoms entered into collective-bargaining agreements with the respondent Union affecting both their restaurant and motel employees. On June 16, 1972, the Grissoms sold the business to Howard Johnson, the transfer of management to take place on July 24, 1972. On June 28, Howard Johnson notified the Grissoms that it would not recognize or assume their labor agreements and on July 9, 1972, the Grissoms gave notice to their employees that they would be terminated at midnight, July 23. Howard Johnson began interviewing prospective employees in early July, and when it took over the operation on July 24 it retained only nine of the Grissoms' employees; at least 40 were permanently replaced. The Union brought this action under § 301 of the Labor Management Relations Act, and the District Court issued an order compelling petitioner to arbitrate. The Court of Appeals affirmed, but today this Court reverses, holding that Howard Johnson was not a successor employer. I believe that the principles of successorship laid down in John Wiley & Sons v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898, and NLRB v. Burns International Security Services, Inc., 406 U.S. 272, 92 S.Ct. 1571, 32 L.Ed.2d 61, require affirmance, and thus I dissent.
27
Wiley was also a § 301 suit, to compel arbitration. There the company had merged with Interscience, another and smaller publisher, 40 of whose employees were represented by the union. The union contended that the merger did not affect its right to represent these employees in negotiations with Wiley, and that Wiley was bound to recognize certain rights of these employees which had been guaranteed in the collective-bargaining agreement signed by Interscience. Wiley contended that the merger terminated the collective-bargaining agreement for all purposes and refused to bargain with the union. We held that the union could compel arbitration of this dispute under the arbitration provision of the collective-bargaining agreement even though Wiley had never signed the agreement. We pointed out that the duty to arbitrate will not in every case survive a change of ownership, as when 'the lack of any substantial continuity of identity in the business enterprise before and after a change would make a duty to arbitrate something imposed from without, not reasonably to be found in the particular bargaining agreement and the acts of the parties involved.' Wiley, supra, 376 U.S. 551, 84 S.Ct. 915. But that was not the case in Wiley: '(T)he impressive policy considerations favoring arbitration are not wholly overborne by the fact that Wiley did not sign the contract being construed. This case cannot readily be assimilated to the category of those in which there is no contract whatever, or none which is reasonably related to the party sought to be obligatied.' Id., at 550, 84 S.Ct. at 915.
28
It must follow a fortiori that it is also not the case here. The contract between the Grissoms and the Union explicitly provided that successors of the Grissoms would be bound,1 and certainly there can be no question that there was a substantial continuity—indeed identity—of the business operation under Howard Johnson, the successor employer. Under its franchise agreement Howard Johnson had substantial control over the Grissoms' operation of the business;2 it was no stranger to the enterprise it took over. The business continued without interruption at the same location, offering the same products and services to the same public, under the same name and in the same manner, with almost the same number of employees. The only change was Howard Johnson's replacement of the Union members with new personnel, but as the court below pointed out, petitioner's reliance upon that fact is sheer 'boot-strap':
29
'(Howard Johnson) argues that it need not arbitrate the refusal to hire Grissoms' employees because it is not a successor. It is not a successor, because it did not hire a majority of Grissoms' employees.' 482 F.2d 489, 493.
30
As we said in Wiley, '(i)t would derogate from 'the federal policy of settling labor disputes by arbitration,' . . . if a change in the corporate structure or ownership of a business enterprise had the automatic consequence of removing a duty to arbitrate previously established . . ..' 376 U.S., at 549, 84 S.Ct., at 914.
31
NLRB v. Burns International Security Services, supra, does not require any different result. There the original employer, Wackenhut, had a contract with Lockheed to provide security services, and at the expiration of that contract Lockheed took bids on providing the service and hired Burns to replace Wackenhut. Wackenhut employees had been represented by the union, but Burns, which hired 27 of the 42 Wackenhut guards, refused to bargain with the union or honor the collective-bargaining agreement signed by Wackenhut. We affirmed the NLRB's order requiring Burns to bargain with the union, but concluded that Burns was not bound by the substantive provisions of the collective-bargaining agreement between the union and Wackenhut. In distinguishing Wiley, we pointed out in Burns that unlike Wiley it did not involve a § 301 suit to compel arbitration, and thus was without the support of the national policy favoring arbitration. Burns, supra, at 286, 92 S.Ct., at 1581. Moreover, in Burns 'there was no merger or sale of assets, and there were no dealings whatsoever between Wackenhut and Burns. On the contrary, they were competitors for the same work, each bidding for the service contract at Lockheed. Burns purchased nothing from Wackenhut and became liable for none of its financial obligations.' Ibid.
32
All of the factors distinguishing Burns and Wiley call here for affirmance of the order to arbitrate. This is a § 301 suit, and Howard Johnson did purchase the assets from the Grissoms. As a matter of federal labor law, when Howard Johnson took over the operation that had been conducted by its franchisee, it seems clear that it also took over the duty to arbitrate under the collective-bargaining agreements which expressly bound the Grissoms' successors. Any other result makes nonsense of the principles laid down in Wiley. The majority, by making the number of prior employees retained by the successor the sole determinative factor, accepts petitioner's bootstrap argument. The effect is to allow any new employer to determine for himself whether he will be bound, by the simple expedient of arranging for the termination of all of the prior employer's personnel. I cannot accept such a rule, especially when, as here, all of the other factors point so compellingly to the conclusion that petitioner is a successor employer who should be bound by the arbitration agreement.
1
Actually, employees at the restaurant were officially represented by the Hotel & Restaurant Employees & Bartenders International Union, while employees at the motor lodge were represented by Local 705 of the Hotel, Motel & Restaurant Employees Union. As the Court of Appeals observed. however, '(w) hile the unions named in the two agreements bear distinct names they are apparently identical in interest and goverance.' 482 F.2d 489, 491 n. 3. Both have been represented throughout this litigation by the respondent Detroit Local Joint Executive Board.
2
See The Supreme Court, 1971 Term, 86 Harv.L.Rev. 1, 255 256 (1972); Christensen, Successorships, Unit Changes, and the Bargaining Table, in Southwestern Leg. Found., 19th Institute on Labor Law, Labor Law Developments 1973, pp. 197, 205—206.
3
The Union apparently did not explore another remedy which might have been available to it prior to the sale, i.e., moving to enjoin the sale to Howard Johnson on the ground that this was a breach by the Grisoms of the successorship clauses in the collective-bargaining agreements. See National Maritime Union v. Commerce Tankers Corp., 325 F.Supp. 360 (S.D.N.Y.1971), vacated, 457 F.2d 1127 (CA2 1972). The mere existence of the successorship clauses in the bargaining agreements between the Union and the Grissoms, however, cannot bind Howard Johnson either to the substantive terms of the agreements or to the arbitration clauses thereof, absent the continuity required by Wiley, when it is perfectly clear the Company refused to assume any obligations under the agreements.
4
Subsequently, the Interscience plant was closed and the former Interscience employees were integrated into Wiley's work force. The arbitrator, relying in part on the NLRB's decision in Burns, held that the provisions of the Interscience collective-bargaining agreement remained in effect for as long as Wiley continued to operate the former Interscience enterprise as a unit in substantially the same manner as prior to the merger, but that the integration of the former Interscience employees into Wiley's operations destroyed this continuity of identity and terminated the effectiveness of the bargaining agreement. 55 Lab.Arb., at 218—220.
5
It is important to emphasize that this is not a case where the successor corporation is the 'alter ego' of the predecessor, where it is 'merely a disguised continuance of the old employer.' Southport Petroleum Co. v. NLRB, 315 U.S. 100, 106, 62 S.Ct. 452, 456, 86 L.Ed. 718 (1942). Such cases involve a mere technical change in the structure or identity of the employing entity, frequently to avoid the effect of the labor laws, without any substantial change in its ownership or management. In these circumstances, the courts have had little difficulty holding that the successor is in reality the same employer and is subject to all the legal and contractual obligations of the predecessor. See Southport Petroleum Co. v. NLRB, supra; NLRB v. Herman Bros. Pet Supply, 325 F.2d 68 (CA6 1963); NLRB v. Ozark Hardwood Co., 282 F.2d 1 (CA8 1960); NLRB v. Lewis, 246 F.2d 886 (CA9 1957).
There is not the slightest suggestion in this case that the sale of the restaurant and motor lodge by the Grissoms to Howard Johnson was in any sense a paper transaction without meaningful impact on the ownership or operation of the enterprise. Howard Johnson had no ownership interest in the restaurant or motor lodge prior to this transaction. Although the Grissoms' operation of the enterprise as Howard Johnson's franchisee was subject to substantial restraints imposed by the franchise agreements on some aspects of the business, the franchise agreements imposed no restrictions on the Grissoms' hiring or labor relations policies. There is nothing in the record to indicate that Howard Johnson had had any previous dealings with the Union, or had participated in any way in negotiating or approving the collective-bargaining agreements.
6
'Question: . . . You say the man is a successor and therefore there never was a break in his contractual obligations. You've still got to make the case for the successorship.
'Mr. Gold (for the Union): Well, that's right. I think our first duty is to show that there is a continuity of the business enterprise which makes it proper to say that the second employer is a successor.
'Where there isn't a continuity, then he is not a successor and he is not bound by the arbitration clause or any of the other potential obligations which are in the agreement.
'Question: But in deciding successorship, I take it you put aside the fact that he may not have hired any of the old employees?
'Mr. Gold: Yes, Your Honor . . ..' Tr. of Oral Arg. 37—38 (emphasis added).
7
'Question: Well, isn't part of your submission . . . that the arbitrator could decide to put all 41 (employees who had not been hired by Howard Johnson) back to work?
'Mr. Gold: Yes, Your Honor.
'Question: Which means that the successor does not have the right not to hire, that he must perhaps take over the old employees?
'Mr. Gold: Yes, Your Honor.
'Question: . . . (Y)ou still say that he may bring his own employees along.
'Mr. Gold: Well, no, one of the rules is that the just cause and seniority provisions of the agreement apply. That is probably the most important aspect of the bargain from the union and the employees' standpoint. And if—
'Question: You certainly are taking quite a bite out of Burns, I suppose, in these cases.' Tr. of Oral Arg. 27, 33.
8
See Crotona Service Corp., 200 N.L.R.B. 738 (1972). Of course, it is an unfair labor practice for an employer to discriminate in hiring or retention of employees on the basis of union membership or activity under § 8(a)(3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(3). Thus, a new owner could not refuse to hire the employees of his predecessor solely because they were union members or to avoid having to recognize the union. See NLRB v. Burns International Security Services, 406 U.S. 272, 280—281, n. 5, 92 S.Ct. 1571, 1578—1579, 32 L.Ed.2d 61 (1972); K.B. & J. Young's Super Markets v. NLRB, 377 F.2d 463 (CA9), cert. denied, 389 U.S. 841, 88 S.Ct. 71, 19 L.Ed.2d 105 (1967); Tri State Maintenance Corp. v. NLRB, 132 U.S.App.D.C. 368, 408 F.2d 171 (1968). There is no suggestion in this case that Howard Johnson in any way discriminated in its hiring against the former Grissom employees because of their union membership, activity, or representation.
9
The Court of Appeals stated that '(t)he first question we must face is whether Howard Johnson is a successor employer,' 482 F.2d, at 492, and, finding that it was, that the next question was whether a successor is required to arbitrate under the collective-bargaining agreement of its predecessor, id., at 494, which the court found was resolved by Wiley. We do not believe that this artificial division between these questions is a helpful or appropriate way to approach these problems. The question whether Howard Johson is a 'successor' is simply not meaningful in the abstract. Howard Johnson is of course a successor employer in the sense that it succeeded to operation of a restaurant and motor lodge formerly operated by the Grissoms. But the real question in each of these 'successorship' cases is, on the particular facts, what are the legal obligations of the new employer to the employees of the former owner or their representative? The answer to this inquiry requires analysis of the interests of the new employer and the employees and of the policies of the labor laws in light of the facts of each case and the particular legal obligation which is at issue, whether it be the duty to recognize and bargain with the union, the duty to remedy unfair labor practices, the duty to arbitrate, etc. There is, and can be, no single definition of 'successor' which is applicable in every legal context. A new employer, in other words, may be a successor for some purposes and not for others. See Golden State Bottling Co. v. NLRB, 414 U.S. 168, 181, 94 S.Ct. 414, 423, 38 L.Ed.2d 388 (1973). International Ass'n of Machinists v. NLRB, 134 U.S.App.D.C. 239, 244, 414 F.2d 1135, 1140 (1969) (Leventhal, J., concurring); Goldberg, The Labor Law Obligations of a Successor Employer, 63 Nw.U.L.Rev. 735 (1969); Comment, Contractual Successorship: The Impact of Burns, 40 U.Chi.L.Rev. 617, 619 n. 10 (1973).
Thus, our holding today is that Howard Johnson was not required to arbitrate with the Union representing the former Grissom employees in the circumstances of this case. We necessarily do not decide whether Howard Johnson is or is not a 'successor employer' for any other purpose.
10
See Printing Specialties Union v. Pride Papers Aaronson Bros. Paper Corp., 445 F.2d 361, 363—364 (CA2 1971); Wackenhut Corp. v. Plant Guard Workers, 332 F.2d 954, 958 (CA9 1964); International Ass'n of Machinists v. NLRB, 134 U.S.App.D.C., at 244 n. 4, 414 F.2d at 1140 n. 4 (Leventhal, J., concurring); Boeing Co. v. International Ass'n of Machinists, 351 F.Supp. 813 (M.D.Fla.1972); Owens-Illinois, Inc. v. District 65, Retail, Wholesale & Department Store Union, 276 F.Supp. 740 (S.D.N.Y.1967); Local Joint Executive Board, Hotel & Restaurant Employees v. Joden, Inc., 262 F.Supp. 390 (D.C.Mass.1966). See also Comment, supra, n. 9, at 621.
1
'This Agreement shall be binding upon the successors, assigns, purchasers, lessees or transferees of the Employer whether such succession, assignment or transfer be effected voluntarily or by operation of law or by merger or consolidation with another company provided the establishment remains in the same line of business.' 482 F.2d 489, 491.
2
The motel franchise agreement provided, for example, that Howard Johnson would determine and approve standards of construction, operation, and service, and would have the right at any time to enter the premises for that purpose; that prior approval would be required for equipment and supplies bearing the name 'Howard Johnson'; that Howard Johnson would have the first option to purchase if the business were to be sold, and that in any event Howard Johnson must approve any successor. See the District Court opinion, 81 L.R.R.M. 2329, 2330, and App. 50a et seq.
| 67
|
417 U.S. 380
94 S.Ct. 2315.
41 L.Ed.2d 141
FEDERAL POWER COMMISSION, Petitioner,v.TEXACO INC. et al. Dudley T. DOUGHERTY et al., Co-Executors, Estate of Mrs. James R. Dougherty et al., Petitioners, v. TEXACO INC. et al.
Nos. 72—1490 and 72—1491.
Argued Feb. 19, 1974.
Decided June 10, 1974.
Syllabus.
Following its notice of proposed rulemaking 'propos(ing) prospectively to exempt from regulation under the Natural Gas Act all existing and all future jurisdictional sales made by small producers . . .,' and the filing of comments and informal conferences, the Federal Power Commission (FPC) issued Order No. 428, which exempted all existing and future sales by 'small producers' from direct rate regulation, and provided that they could thereunder contract for the sale of their gas at any obtainable rates, without refund obligations with respect to increased rates, if any, collected for sales regulated thereunder to the pipelines. The FPC asserted that the order did not amount to 'deregulation of sales by small producers,' but was intended to regulate small producers' sales in the course of regulating the rates of pipeline and large producer customers of the small producers. Pipelines purchasing from small producers above ceiling prices were to be allowed 'tracking increases' in their rates, but those rates would be subject to refund 'with respect to new small producer sales, but only as to that part of the rate which is unreasonably high considering appropriate comparisons with highest contract prices for sales by large producers or the prevailing market price for intrastate sales in the same producing area.' The FPC asserted its intention of reviewing small-producer prices to maintain reasonable rates and specified that small producers remain subject to § 7(b) of the Natural Gas Act. The Court of Appeals set aside the FPC order, holding that the small-producer blanket certificate procedure contravened the FPC's statutory responsibilities under §§ 4 and 5 of the Act to ensure 'just and reasonable rates.' It viewed the order as merely calling for rates that were not unreasonably high as compared with the highest contract prices for large-producer sales or the prevailing market price in the intrastate market, and the court held unacceptable the possible contention that market prices themselves would produce just and reasonable rates. Held:
1. The scheme for regulating small-producer rates indirectly did not exceed the FPC's statutory authority. Pp. 386—393.
(a) Order No. 428 is not invalid because it does not initially consider each company and the reasonableness of its rates, or because it has a two-tier system for small producers and large producers. Cf. Permian Basin Area Rate Cases, 390 U.S. 747, 88 S.Ct. 1344, 20 L.Ed.2d 312. P. 390.
(b) Since pipeline rates are subject to refund to the extent that the purchased gas component of their rates is excessive, there is an incentive 'to bargain prices down.' Pp. 390—391.
(c) Requiring the pipelines and the large producers to assume risks in bargaining for reasonable prices from small producers that might entail refunds unrecoverable from the small producers, is not an abuse of the FPC's discretion under § 4(e) in balancing the interests involved. Pp. 391—392.
(d) It is premature to assert that the indirect regulation contemplated by Order No. 428 is confiscatory, especially since the FPC is to maintain a close review of the avowedly experimental scheme. Pp. 392—393.
2. But it is not clear from the wording of Order No. 428 that it satisfies the statutory requirement that the sale price for gas sold in interstate commerce be just and reasonable; at the least, the order is too ambiguous to satisfy the standard of clarity that an administrative order must exhibit, and the implication that the reasonableness of the small producers' rates would be judged by the assertion that the FPC 'would consider all relevant factors' in determining whether the proposed rates comported with the 'public convenience and necessity' is insufficient to sustain the order. Pp. 394—397.
3. The FPC lacks authority to rely exclusively on market prices as the final measure of 'just and reasonable' rates mandated by the Act; moreover, the FPC order made no finding as to the actual impact the market price increases would have on consumer gas expenditures. Pp. 397—399.
154 U.S.App.D.C. 168, 474 F.2d 416, vacated and remanded.
Mark L. Evans, Washington, D.C., for petitioner in No. 72 1490.
Ben F. Vaughan III, Austin, Tex., for petitioners in No. 72 1491.
Christopher T. Boland, Washington, D.C., and Peter H. Schiff, Albany, N.Y., for respondents in both cases.
Mr. Justice WHITE delivered the opinion of the Court.
1
This litigation involves the validity of Order No. 428 of the Federal Power Commission, 45 F.P.C. 454 (1971), which provides a blanket certificate procedure for small producers of natural gas, and relieves them of almost all filing requirements. The rates of small producers would no longer be directly regulated but would be subjected to indirect regulation through the review of purchased gas costs of the pipelines and large producers to whom these small producers sell. The Court of Appeals, with one judge dissenting, set aside the order, 154 U.S.App.D.C. 168, 474 F.2d 416 (1972), concluding that the Commission's order amounted to 'deregulation' of small producers and was unauthorized by the Natural Gas Act (the Act), 52 Stat. 821, 15 U.S.C. § 717 et seq. Because the validity of the order is of obvious importance, we granted the petition for a writ of certiorari filed by the Commission in No. 72—1490 and by the estate of Mrs. James R. Dougherty, an intervenor in the Court of Appeals, in No. 72—1491. 414 U.S. 817, 94 S.Ct. 119, 38 L.Ed.2d 49 (1973).
2
* On July 23, 1970, the Federal Power Commission issued a notice of proposed rulemaking 'propos(ing) prospectively to exempt from regulation under the Natural Gas Act all existing and all future jurisdictional sales made by small producers . . ..' 35 Fed.Reg. 12,220 (1970). Following the filing of comments and informal conferences, the Commission, noting that one of its important responsibilities was 'to assure maintenance of an adequate gas supply for the interstate market,' issued Order No. 428, aimed at encouraging 'small producers1 to increase their exploratory efforts which are so important to the discovery of new sources of gas . . . to facilitate the entry of the small producer into the interstate market and to stimulate competition among producers to sell gas in interstate commerce.'2 The small producer was to be assured that 'when he enters into a new contract for the interstate sale of gas, the provisions of his contract will not be subject to change. We also want to relieve the small producer of the expenses and burdens relating to regulatory matters.' 45 F.P.C., at 455. Accordingly, the order provided for a nationwide blanket certificate for small producers and relieved them, with some exceptions, from all filing requirements under the Act. Unlike large producers, subject to Commission-fixed ceilings on rates charged, the small producers could sell gas at the price the market would bear, even though in excess of maximum rates set for producers in pertinent area rate proceedings. Furthermore, they would have 'no refund obligations with respect to increased rates, if any, collected for sales regulated hereunder to pipelines . . ..' Id., at 457.
3
The order nevertheless asserted that the 'action taken here in our view does not constitute deregulation of sales by small producers.' id., at 455, and that the Commission would continue to regulate such sales in the course of regulating the rates of pipelines and large producers to whom the small producers sell their gas. Pipelines purchasing from small producers at prices in excess of existing ceilings were to be permitted to file 'tracking increases' in their rates, but those rates would be subject to refund 'with respect to new small producer sales, but only as to that part of the rate which is unreasonably high considering appropriate comparisons with highest contract prices for sales by large producers or the prevailing market price for intrastate sales in the same producing area.' Id., at 457. The issue would be resolved either in pipeline rate cases, a proceeding limited to the tracking increase, or in certificate cases. 'The Commission shall consider all relevant factors.' Id., at 458. Review of tracking increases by pipelines was not anticipated as to existing contracts with small producers; the order authorized small producers to increase their rates under these contracts, terms permitting.
4
Large producers buying from small producers would be permitted tracking increases to the extent authorized by their contracts and without refund obligation 'as long as the price differential is consistent with prevailing price differentials in the area and as long as the small producer prices for new gas are not unreasonably high, considering appropriate comparisons with highest contract prices by large producers or the prevailing market price for intrastate sales in the same producing area.' Id., at 456. To the extent that they reflected small-producer prices in excess of that standard, large-producer tracking increases would be subject to refund.
5
The Commission finally asserted that '(w)e intend to review the prices established in new contracts or contract amendments relating to sales by small producers to assure the reasonableness of the rates charged by such producers pursuant to the action we are taking herein. In the event we determine that this approach is inimical to the interests of consumers, we shall take further action to protect the consumers.' Id., at 459. The Commission apparently remained free to institute separate proceedings under § 5(a) of the Act, 15 U.S.C. § 717d(a), to reduce the producer's rates prospectively.
6
The Commission also made clear that small producers remain subject to the requirements of § 7(b) of the Act, 15 U.S.C. § 717f(b), with respect to the abandonment of jurisdictional sales, including those sales dealt with in the order. The order also limited the use of indefinite price escalation clauses in small-producer contracts and excluded from the reach of the order small-producer sales made from reserves transferred by large producers.3
7
The Court of Appeals set aside the Commission order, holding that under the statute all natural gas sold in interstate commerce must carry just and reasonable rates and that even if indirect regulation was permissible under the statute, Order No. 428 was infirm because nothing in it satisfied the Commission's 'duty to insure that all rates are 'just and reasonable." 154 U.S.App.D.C., at 173, 474 F.2d, at 421. Instead, the order was thought merely to call for rates that were not unreasonably high as compared with the highest contract prices for large-producer sales or the prevailing market price in the intrastate market—'factors which (the Commission) does not regulate or which derive solely from market forces.' Ibid. Nor could the court accept the possible argument that market forces themselves would produce just and reasonable rates, particularly when it understood the Commission itself to take the position that the just-and-reasonable standard was in no event mandatory. The Court of Appeals accordingly set aside the Commission's order.
II
8
The Commission does not contend in this Court that the Act permits it to exempt small-producer rates from regulation or to regulate those rates by any criterion less demanding than the just-and-reasonable standard mandated by §§ 4 and 5 of the Act, 15 U.S.C. §§ 717c and 717d. Its major propositions are, first, that Order No. 428, when properly understood, provides for just and reasonable rates but through the means of indirect, rather than direct, regulation; and, second, that the Act does not forbid this kind of indirect regulation. Respondents, on the other hand, contend that the duty imposed by the Act to provide just and reasonable rates cannot be satisfied by indirect regulation and that Order No. 428 in any event abandons the just-and-reasonable standard with respect to small-producer rates.
9
We face first the issue as to the validity of indirect regulation of small-producer rates: on the assumption that Order No. 428 allows pipelines and large producers to reflect in their rates only just and reasonable charges for gas purchased from small producers, is the order valid? We hold that it is, for we see nothing in the Act which requires the Commission fix the rates chargeable by small producers by orders directly addressed to them or which proscribes the kind of indirect regulation undertaken here.
10
The Act directs that all producer rates be just and reasonable but it does not specify the means by which that regulatory prescription is to be attained. That every rate of every natural gas company must be just and reasonable does not require that the cost of each company be ascertained and its rates fixed with respect to its own costs. Although for a time following Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035 (1954), the Commission proceeded to regulate rates company by company, there was soon a shift to the technique of setting area rates based on composite cost considerations. We sustained this mode of rate regulation.
11
In Wisconsin v. FPC, 373 U.S. 294, 309, 83 S.Ct. 1266, 1274, 10 L.Ed.2d 357 (1963), the Court affirmed the Commission's decision to abandon the individual cost-of-service method of fixing rates and to substitute area ratemaking. The Court said:
12
'To declare that a particular method of rate regulation is so sanctified as to make it highly unlikely that any other method could be sustained would be wholly out of keeping with this Court's consistent and clearly articulated approach to the question of the Commission's power to regulate rates. It has repeatedly been stated that no single method need be followed by the Commission in considering the justness and reasonableness of rates . . ..'
13
This was wholly consistent with the Court's prior views, see FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 62 S.Ct. 736, 86 L.Ed. 1037 (1942); FPC v. Hope Natural Gas Co., 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed. 333 (1944); Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 65 S.Ct. 829, 89 L.Ed. 1206 (1945), and reaffirmed the principle which had been clearly stated in the Hope case: 'Under the statutory standard of 'just and reasonable' it is the result reached not the method employed which is controlling.' 320 U.S., at 602, 64 S.Ct., at 287.
14
The principles of these prior cases were recognized and applied in the Permian Basin Area Rate Cases, 390 U.S. 747, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968), where we sustained a two-tier system of rates for natural gas producers. In the course of doing so, we recognized that encouraging the exploration for and development of new sources of natural gas was one of the aims of the Act and one of the functions of the Commission. The performance of this role obviously involved the rate structure and implied a broad discretion for the Commission. The Court summarized the principles controlling the judicial review of Commission orders in terms very pertinent here:
15
'The Act was intended to create, through the exercise of the national power over interstate commerce, 'an agency for regulating the wholesale distribution to public service companies of natural gas moving interstate'; Illinois Gas Co. v. Public Service Co., 314 U.S. 498, 506, 62 S.Ct. 384, 387, 86 L.Ed. 371; it was for this purpose expected to 'balanc(e) . . . the investor and the consumer interests.' FPC v. Hope Natural Gas Co. (320 U.S.), at 603, 64 S.Ct., at 288. This Court has repeatedly held that the width of administrative authority must be measured in part by the purposes for which it was conferred; see, e.g., Piedmont & Northern R. Co. v. Interstate Commerce Comm'n, 286 U.S. 299, 52 S.Ct. 541, 76 L.Ed. 115; Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 193—194, 61 S.Ct. 845, 852, 85 L.Ed. 1271; National Broadcasting Co. v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344; American Trucking Assns. v. United States, 344 U.S. 298, 311, 73 S.Ct. 307, 315, 97 L.Ed. 337. Surely the Commission's broad responsibilities therefore demand a generous construction of its statutory authority. (Footnote omitted.)
16
'Such a construction is consistent with the view of administrative rate making uniformly taken by this Court. The Court has said that the 'legislative discretion implied in the rate making power necessarily extends to the entire legislative process, embracing the method used in reaching the legislative determination as well as that determination itself.' Los Angeles Gas & Electric Corp. v. Railroad Comm'n, 289 U.S. 287, 304, 53 S.Ct. 637, 643, 77 L.Ed. 1180. And see San Diego Land & Town Co. v. Jasper, 189 U.S. 439, 446, 23 S.Ct. 571, 574, 47 L.Ed. 892. It follows that rate-making agencies are not bound to the service of any single regulatory formula; they are permitted, unless their statutory authority otherwise plainly indicates, 'to make the pragmatic adjustments which may be called for by particular circumstances.' FPC v. Natural Gas Pipeline Co. (315 U.S.), at 586, 62 S.Ct., at 743.' 390 U.S., at 776—777, 88 S.Ct., at 1364.
17
It followed that Commission action taken in the pursuit of a legitimate statutory goal enjoyed the presumption of validity, id., at 767, 88 S.Ct., at 1360, and that he who would upset the rate order under the Act carries "the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences." Ibid.
18
Accepting these views of our role as a court sitting in review, we cannot at this point say that the Commission has exceeded its powers by instituting a regime of indirect regulation of small-producer rates. Surely it is not fatal to Order No. 428 that it does not, as an initial matter, consider the costs of each company and the reasonableness of its rates. Nor is the order vulnerable because there will be one level of just and reasonable rates for small producers and another for large producers. As previously noted, the Court approved two sets of just and reasonable rates in the Permian Basin cases, the justification being the necessity to stimulate exploration for and the development of new supplies of natural gas. Id., at 796—797, 88 S.Ct., at 1375.
19
Indirect regulation through the mechanism of controlling large-producer costs will not merely recreate the situation which the Court in the Phillips case found to be inconsistent with the Natural Gas Act. In the pre-Phillips era, although asserting the right to pass on the prudentiality of various items of the pipelines' costs, the Commission did not purport to regulate the rates of producers with the aim of keeping them within just and reasonable limits, as the Commission now asserts it is doing under Order No. 428.
20
It is argued that permitting the small producers initially to charge what the market will bear and relying on later regulation of pipeline rates to protect the consumer is contrary to Atlantic Refining Co. v. Public Service Comm'n, 360 U.S. 378, 79 S.Ct. 1246, 3 L.Ed.2d 1312 (1959) (CATCO). But pipelines and large producers must file with the Commission their new contracts with the small producers, and their rates will be subject to suspension and refund within the limits set out in Order No. 428. As the Court noted in FPC v. Sunray DX Oil Co., 391 U.S. 9, 26, 88 S.Ct. 1526, 1535, 20 L.Ed.2d 388 (1968), the basic assumption which must have underlain the Court's CATCO decision was 'that the purchasing pipeline, whose cost of purchase is a current operating expense which the pipeline is entitled to pass on to its customers as part of its rates, lacks sufficient incentive to bargain prices down.' Here, on the other hand, the incentive is provided—pipeline rates are subject to refund to the extent that the purchased gas cost component of their rates is excessive.
21
This leads to the contention of the pipelines and the large producers that the scheme of indirect regulation envisioned by Order No. 428 unfairly subjects them to the risk of later determination that their gas costs are unjust and unreasonable and to the obligation to make refunds which they cannot in turn recover from the small producers whose rates have been found too high.4 But those whose rates are regulated characteristically bear the burden and the risk of justifying their rates and their costs. Rate regulation unavoidably limits profits as well as income. 'The fixing of prices, like other applications of the police power, may reduce the value of the property which is being regulated. But the fact that the value is reduced does not mean that the regulation is invalid.' FPC v. Hope Natural Gas Co., 320 U.S., at 601, 64 S.Ct., at 287. All that is protected against, in a constitutional sense, is that the rates fixed by the Commission be higher than a confiscatory level. FPC v. Natural Gas Pipeline Co., 315 U.S., at 585, 62 S.Ct., at 742. In the context of the Act's rate regulation, whether any rate is confiscatory, or for that matter 'just and reasonable,' can only be judged by 'the result reached, not the method employed.' FPC v. Hope Natural Gas Co., supra, at 602, 64 S.Ct., at 287. In the Permian Basin Area Rate Cases, 390 U.S., at 769, 88 S.Ct., at 1361, we stated a truism of rate regulation: 'Regulation may, consistently with the Constitution, limit stringently the return recovered on investment, for investors' interests provide only one of the variables in the constitutional calculus of reasonableness.'
22
Here, requiring pipelines and the large producers to assume the risk in bargaining for reasonable prices from small producers is within the Commission's discretion in working out the balance of the interests necessarily involved. The consumer would be protected from current excessive rates, but at the expense of the pipeline, rather than the producer, who is engaged in necessary exploratory activity, thus serving the public interest in getting greater gas production but at just and reasonable rates. Under such circumstances, it is surely not an abuse of the discretion the Commission retains under § 4(e) of the Act, see Permian Basin Area Rate Cases, supra, at 826—827, 88 S.Ct., at 1391, to refrain from imposing a refund obligation on the small producers.
23
Any broadside assertion that indirect regulation will be confiscatory is premature. The consequences of indirect regulation can only be viewed in the entirety of the rate of return allowed on investment, and this effect will be unknown until the Commission has applied its scheme in individual cases over a period of time. Moreover, the 'regulation of producer prices is avowedly still experimental,' id., at 772, 88 S.Ct., at 1362, and Order No. 428 asserts the Commission's intention to keep the experiment under close review. The Commission claims and is entitled to no license to be arbitrary or capricious in disallowing purchased gas costs of large producers and pipelines. The Commission may not exceed its authority under the Act; its orders are subject to judicial review; and reviewing courts must determine whether Commission orders, issued pursuant to indirect regulation, are supported by substantial evidence and whether it is rational to expect them 'to maintain financial integrity, attract necessary capital, and fairly compensate investors for the risk they have assumed, and yet provide appropriate protection to the relevant public interests, both existing and foreseeable.' Id., at 792, 88 S.Ct., at 1373.
24
If, in the course of the necessary bargaining with small producers, the large producers and the pipelines are given no guidance whatsoever as to what the standards of the Commission may be, the risk of incurring unrefundable expenses that may later be disallowed is considerably enhanced. The scope of this possible difficulty is measured by the standards, or lack of them, by which the Commission will review the purchased gas costs of the large producers and the pipelines. As Order No. 428 reveals, the Commission is surely aware of the problem, and we would expect additional attention to be given this question in the course of the remand proceedings which, as explained in Part III, we think are necessary here.5
III
25
We turn now to whether Order No. 428 is invalid for failure to comply with the Act's requirement that the sale price for gas sold in interstate commerce be just and reasonable. The Court of Appeals rejected what it apparently understood was 'the Commission's basic contention all along . . . that the 'just and reasonable' standard was not mandatory and that the FPC can simply choose not to regulate rates.' 154 U.S.App.D.C., at 175, 474 F.2d, at 422. Whatever the position of the Commission heretofore has been, it wisely does not challenge that aspect of the Court of Appeals judgment. Sections 4 and 5 of the Act require that all gas rates be just and reasonable; and the Court held in Phillips that this very prescription applies to the rates of all gas producers. The Commission may have great discretion as to how to insure just and reasonable rates, but it is plain enough to us that the Act does not empower it to exempt small-producer rates from compliance with that standard.
26
Section 16, 15 U.S.C. § 717o, upon which the Commission relies, is not to the contrary. It authorizes the Commission to perform any and all acts and to issue any and all rules and regulations 'as it may find necessary or appropriate to carry out the provisions of this Act'; and '(f)or the purposes of its rules and regulations, the Commission may classify persons and matters within its jurisdiction and prescribe different requirements for different classes of persons or matters.' But § 16 obviously does not vest authority in the Commission to set unjust and unreasonable rates, even for small producers. It does not authorize the Commission to set at naught an explicit provision of the Act. No producer is exempt from §§ 4 and 5. Neither the Permian Basin Area Rate Cases nor FPC v. Louisiana Power & Light Co., 406 U.S. 621, 92 S.Ct. 1827, 32 L.Ed.2d 369 (1972), on which the Government relies, suggests or holds that § 16 permits the Commission to ignore the specific mandates of those sections.6
27
The Court of Appeals also read Order No. 428 as failing to provide a mechanism for insuring that small-producer rates will be just and reasonable. In its view, the order provided a pure market standard for the approval of the purchased gas costs of large producers and pipelines, a standard which fell short of the requirements of the Act. Accordingly, it set aside the order.
28
The Commission does not assert here that it is free under the Act to equate just and reasonable rates with the prices for gas prevailing in the market place. Its major remaining contention is that the Court of Appeals misread Order No. 428 and that the order, properly understood, contemplates a scheme of indirect regulation that would assure just and reasonable small-producer rates for natural gas and that would judge small-producer rates not only by market factors but by all the relevant considerations necessary to arrive at the considered judgment contemplated by the Act. For present purposes, then, the Commission accepts the Court of Appeals' construction of the Act; but insists that the order is consistent with the statute as so construed.
29
In this posture of the case, we think it clear that Order No. 428 cannot stand in its present form and that the cases should be remanded for further proceedings before the Commission. We have studied the order with care, and we cannot accept the construction of it that the Commission now presses upon us. At the very least, the order is so ambiguous that it falls short of that standard of clarity that administrative orders must exhibit. The Commission was bound to exercise its discretion within the limits of the standards expressed by the Act; and 'for the courts to determine whether the agency has done so, it must 'disclose the basis of its order' and 'give clear indication that it has exercised the discretion with which Congress has empowered it." Burlington Truck Lines v. United States, 371 U.S. 156, 167—168, 83 S.Ct. 239, 245, 9 L.Ed.2d 207 (1962), quoting in part from Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 197, 61 S.Ct. 845, 853, 85 L.Ed. 1271 (1941). We shall indicate briefly our basis for this conclusion.
30
In the first place, Order No. 428 does not expressly mention the just-and-reasonable standard. It comes no closer than to subject pipeline rates to reduction and refund 'only as to that part of the rate which is unreasonably high considering appropriate comparisons with highest contract prices for sales by large producers or the prevailing market price for intrastate sales. . . .' 45 F.P.C., at 457. (Emphasis added.) The order took a very similar approach to the tracking increases by large producers. Moreover, under the order, contractually authorized increases in rates for flowing gas under existing contracts could be automatically passed through by the pipelines and would not be subject to examination under the standard proposed by the order with respect to new sales by small producers. There was no finding that these contemplated increased rates for flowing gas would be just and reasonable. The Commission merely asserts in its brief here that it was familiar with the existing contracts and must have considered the rates reserved to be acceptable under the Act.
31
It is true that pipeline and large-producer costs for new small-producer gas were not to be 'unreasonable' but the implication appears to be that reasonableness would be judged by the standard of the marketplace. It is also true that the Commission asserted that it was not deregulating small-producer rates, that the Commission 'shall consider all relevant factors' in determining whether proposed rates were consistent with the 'public convenience and necessity,' and that the Commission intended to review new contract prices charged by small producers 'to assure . . . the reasonableness of the rates charged by such producers pursuant to the action we are taking herein.' But these generalities do not supply the requisite clarity to the order or convince us that it should be sustained.
32
Had the order unambiguously provided what the Commission now asserts it was intended to provide,7 we would have a far different case to decide. But as it is, we cannot 'accept appellate counsel's post hoc rationalizations for agency action'; for an agency's order must be upheld, if at all, 'on the same basis articulated in the order by the agency itself.' Burlington Truck Lines, 371 U.S., at 168—169, 83 S.Ct., at 246; SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947).
IV
33
For the purposes of the proceedings that may occur on remand, we should also stress that in our view the prevailing price in the marketplace cannot be the final measure of 'just and reasonable' rates mandated by the Act. It is abundantly clear from the history of the Act and from the events that prompted its adoption that Congress considered that the natural gas industry was heavily concentrated and that monopolistic forces were distorting the market price for natural gas.8 Hence, the necessity for regulation and hence the statement in Sunray DX, 391, U.S., at 25, 88 S.Ct., at 1535, that if contract prices for gas were set at the market price, this In subjecting producers to regulation because of anticompetitive conditions in the industry, Congress could not have assumed that 'just and reasonable' rates could conclusively be determined by reference to market price. Our holding in Phillips implies just the opposite. This does not mean that the market price of gas would never, in an individual case, coincide with just and reasonable rates or not be a relevant consideration in the setting of area rates, see Permian Basin Area Rate Cases, 390 U.S., at 793—795, 88 S.Ct., at 1373—1374, it may certainly be taken into account along with other factors, Southern Louisiana Area Rate Cases v. F.P.C., 428 F.2d 407, 441 (C.A. 5), cert. denied sub nom. Associated Gas Distributors v. Austral Oil Co., 400 U.S. 950, 91 S.Ct. 244, 27 L.Ed.2d 257 (1970). It does require, however, the conclusion that Congress rejected the identity between the 'true' and the 'actual' market price.
34
The Court is not unresponsive to the special needs of small producers who play a critical role in exploratory efforts in the natural gas industry and ameliorating the supply shortage. The requirements of the Act, however, do not distinguish between small and large producers with respect to just and reasonable rates. Even if the effect of increased small-producer prices would make a small dent in the consumer's pocket, when compared with the rates charged by the large producers, the Act makes unlawful all rates which are not just and reasonable, and does not say a little unlawfulness is permitted. Moreover, there is no finding in the Commission's order as to the actual impact the projected market price increases would have on consumer expenditures for gas, and the Commission is previously on record in its Permian decision, as stating: '(T)he impact of small producer prices on consumers is by no means de minimis on an area basis, and is of great impact in some situations.' 34 F.P.C. 159, 235 (1965).
V
35
In concluding that the Commission lacks the authority to place exclusive reliance on market prices, we bow to our perception of legislative intent. It may be, as some economists have persuasively argued,9 that the assumptions of the 1930's about the competitive structure of the natural gas industry, if true then, are no longer true today. It may also be that control of prices in this industry, in a time of shortage, if such there be, is counterproductive to the interests of the consumer in increasing the production of natural gas. It is not the Court's role, however, to overturn congressional assumptions embedded into the framework of regulation established by the Act. This is a proper task for the Legislature where the public interest may be considered from the multifaceted points of view of the representational process.
36
Attempts have been made in the past to exempt producers from the coverage of the Act, but these attempts have been unsuccessful. The Court realized as much in the Phillips case. 347 U.S., at 685, and n. 14, 74 S.Ct., at 800. In 1950, Congress had passed a bill, H.R.1758, 81st Cong., 2d Sess., to exempt gas producers from the Act, but President Truman vetoed the bill stating that 'there is a clear possibility that competition will not be effective, at least in some cases, in holding prices to reasonable levels. Accordingly, to remove the authority to regulate, as this bill would do, does not seem to me to be wise public policy.' The President made this judgment despite the arguments that imposition of price control would discourage exploration and development of new wells. Public Papers of the President, Harry S. Truman, 1950, p. 257 (1965). For the Court to step outside its role in construing this statute, and insert itself into the debate on economics and the public interest, would be an unwarranted intrusion into the legislative forum where the debate again rages on the question of deregulation of natural gas producers.
37
We do, however, make clear that under the present Act the Commission is free to engage in indirect regulation of small producers by reviewing pipeline costs of purchased gas, providing that it insures that the rates paid by pipelines, and ultimately borne by the consumer, are just and reasonable. It may be, as some of the respondents suggest, that ensuring just and reasonable rates by means of indirect regulation will not be administratively feasible, but this is a matter for the Commission to consider.
38
We agree with the Court of Appeals that the order of the Commission must be set aside; but for reasons previously stated, we vacate the judgment of the Court of Appeals and remand the cases to that court with instructions to remand the cases to the Commission for further proceedings consistent with this opinion.
39
Vacated and remanded.
40
Mr. Justice STEWART took no part in the consideration or decision of these cases.
1
A 'small producer' was defined as an independent producer, not affiliated with a natural gas pipeline company, whose total jurisdictional sales on a nationwide basis, together with sales of affiliated producers, did not exceed 10,000,000 Mcf at 14.65 psia during any calendar year. New small-producer sales included any sale made pursuant to a contract dated after March 18, 1971.
2
The Commission found that small producers produce about 10% of the gas purchased by pipelines, excluding all pipeline-to-pipeline sales. It appears, however, that they also account for 80% of the natural gas exploration in this country.
3
Subsequently, the Commission issued two supplemental orders, Order No. 428—A, 45 F.P.C. 548, revising the annual statement requirements for small producers and Order No. 428—B, 46 F.P.C. 47, which denied applications for rehearing and modified Order No. 428 in respects that need not be mentioned here.
4
The large producers also contend that they are put at a disadvantage by the Commission's order because their contracts may not permit them to pass on the increased costs of gas purchased from small producers, whereas the pipelines will be in a position to do so. This is, however, a function of the producers' contracts, and the Commission has no authority, absent a finding that the existing contract rate 'is so low as to have an adverse effect on the public interest,' to permit large producers or pipelines to raise their rates in excess of the maximum authorized in their contracts, FPC v. Sierra Pacific Power Co., 350 U.S. 348, 355, 76 S.Ct. 368, 372, 100 L.Ed. 388 (1956); United Gas Pipe Line Co. v. Mobil Gas Service Corp., 350 U.S. 332, 76 S.Ct. 373, 100 L.Ed. 373 (1956). We think other claims of the large producers, as to unfair treatment or discrimination, are equally ill-founded.
5
The New York Public Service Commission also questions whether it is administratively feasible for the FPC, on review of individual pipelines' costs, to make sure rates are just and reasonable, claiming that this would be a return with a vengeance to the administrative morass which led to the adoption of area rates for producers in the first instance. This claim is also premature in light of possible regulatory approaches the FPC may take on remand.
6
The Commission's position is not advanced by FPC v. Hunt, 376 U.S. 515, 527, 84 S.Ct. 861, 868, 11 L.Ed.2d 878 (1964). The Court in that case merely questioned whether exemption might prove, after study, to be an available alternative.
7
The Commission, in its brief, has indicated that the standard will not be limited to comparisons with appropriate market prices, but will include (1) producer's costs, (2) the pipeline's need for gas, (3) the availability of other gas supplies, (4) the amount of gas dedicated under the contract, and (5) the rates of other recent small-producer sales previously approved for flowthrough.
8
As appears from § 1(a) of the Act, 15 U.S.C. § 717(a), the legislation stemmed from the 1935 Report of the Federal Trade Commission. S.Doc. No. 92, pt. 84—A, 70th Cong., 1st Sess. (published 1936). That report concluded that there was heavy concentration both in the production and distribution of natural gas. 'The 4 largest producer groups account for about 72 percent of the output of natural gas produced by 32 holding company groups in 1930.' Id., at 589. The heavy concentration of pipeline ownership 'accentuates whatever control the pipeline interests have of the available gas supply.' Id., at 590. The Commission concluded, on the basis of its detailed investigation of the industry, that '(t)he prime characteristic of the situation described is that of a steadily developing concert of interests dominating the producing, transporting, and distributing branches of the industry.' Id., at 600. The heart of the problem was at the pipeline end, since the concentration of ownership there allowed the concert of interests 'to determine the amount of natural gas which may be marketed by fixing the amount which may be transported. That in turn gives it power to say how much shall be produced.' Ibid. Based upon these findings, the Commission singled out as 'Specific Evils Existing in the Natural-Gas Industry' both the '(u)nregulated monopolistic control of certain natural-gas production areas' and the '(u)nregulated control of pipeline transmission and of wholesale distribution.' Id., at 615. It concluded that regulation, at least of pipelines, see id., at 616, was required.
'would necessarily be based on a belief that the current contract prices in an area approximate closely the 'true' market price—the just and reasonable rate. Although there is doubtless some relationship, and some economists have urged that it is intimate, such a belief would contradict the basis assumption that has caused natural gas production to be subjected to regulation. . . .' (Footnote omitted.)
9
See C. Hawkins, Structure of the Natural Gas Producing Industry, and P. MacAvoy, The Regulation-Induced Shortage of Natural Gas, in Regulation of the Natural Gas Producing Industry 137—191 (K. Brown ed. 1972). See also Statement of John N. Nassikas, Chairman, Federal Power Commission, Hearing on the Natural Gas Industry before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 93d Cong., 1st Sess., 43—72 (1973).
| 78
|
417 U.S. 283
94 S.Ct. 2328
41 L.Ed.2d 72
MOBIL OIL CORPORATION, Petitioner,v.FEDERAL POWER COMMISSION. PUBLIC SERVICE COMMISSION OF the State of NEW YORK, Petitioner, v. FEDERAL POWER COMMISSION. MUNICIPAL DISTRIBUTORS GROUP, Petitioner, v. FEDERAL POWER COMMISSION.
Nos. 73—437, 73—457 and 73—464.
Argued April 17, 1974.
Decided June 10, 1974.
Syllabus
The Federal Power Commission (FPC) instituted a proceeding in 1961 to establish an area rate structure for interstate sales of natural gas produced in the Southern Louisiana area. After extensive hearings the FPC in 1968 issued an order establishing ceiling rates for gas sold by producers in the area and ordering refunds of rates in excess of the maximum that had been collected prior to the order. The Court of Appeals upheld the order, but declared that the affirmance was not to be interpreted to foreclose the FPC from making such changes in its order, as to both past and future rates as it found to be in the public interest. In response to petitions for rehearing urging that the FPC's authority to modify its order, after affirmance by the court, could be exercised only prospectively, the Court of Appeals stated that '(w)e wish to make crystal clear the authority of the Commission in this case to reopen any part of its order that circumstances require to be opened,' that '(t)he Commission can make retrospective as well as prospective adjustments in this case if it finds that it is in the public interest to do so,' and that if 'the refunds are too burdensome in light of new evidence to the public interest . . . the Commission shall have the power and the duty to remedy the situation by changing its orders.' The FPC thereupon reopened the 1961 proceeding, and after considering a settlement proposal that had been agreed to by a large majority of the parties, issued an order in 1971 establishing a new rate structure for the Southern Louisiana area superseding the 1968 order. This 1971 order established, inter alia, (1) higher ceiling rates for both 'flowing' or 'first vintage' gas (gas delivered after the order's effective date under contracts dated prior to October 1, 1968), and 'new' or 'second vintage' gas (gas delivered after the order's effective date under contracts dated after October 1, 1968); (2) two incentive programs, one providing for refund work-off credits based on a refund obligor's commitment of additional gas reserves to the interstate market (the producer being required to offer at least 50% of the new reserves to the purchaser to whom the refund would otherwise be payable), and the other providing for contingent escalation of rates based on new dedications of gas to the market; (3) minimum rates to be paid by producers to pipelines for transportation of liquids and liquefiable hydrocarbons; and (4) a moratorium upon the filing of rate increases for flowing gas until October 1, 1976, and for new gas until October 1, 1977. The Court of Appeals upheld this order as an appropriate exercise of administrative discretion supported by substantial evidence on the authority of Permian Basin Area Rate Cases, 390 U.S. 747, 88 S.Ct. 1344, 20 L.Ed.2d 312. Held:
1. The FPC had the statutory authority to adopt the 1971 order, notwithstanding the Court of Appeals' affirmance of the 1968 order. Pp. 310—315.
(a) Under circumstances where the Court of Appeals' affirmance of the 1968 order was not 'unqualified' or final, and such order had not been made effective but was stayed until withdrawn in the 1971 order, the Court of Appeals' action in authorizing the FPC to reopen the 1968 order did not exceed the court's powers under § 19(b) of the Natural Gas Act 'to affirm, modify, or set aside (an) order in whole or in part,' or constitute an improper exercise of the court's equity powers with which it is vested in reviewing FPC orders. Pp. 310—312.
(b) The fact that the settlement proposal lacked unanimous agreement of the parties did not preclude the FPC from adopting the proposal as an order establishing just and reasonable rates, since the FPC clearly had the power to admit the agreement into the record, and indeed was obliged to consider it. Pp. 312—314.
(c) The fact that the Court of Appeals' opinion on rehearing regarding the 1968 order authorized modification of the 1968 refund provisions if the refunds 'are too burdensome in light of new evidence to be in the public interest,' did not require the FPC, before revising the refund terms, to find, based on substantial new evidence, that the refunds 'would substantially and adversely affect the producers' ability to meet the continuing gas needs of the interstate market,' since the opinion on rehearing was explicit that the FPC was to have 'great flexibility' and could make retrospective as well as prospective adjustments; moreover, the Court of Appeals flatly rejected 'the notion that the label 'affirmance' could possibly impair FPC's ability to alter or modify any of the provisions, particularly the refund provisions' of the 1968 order. Pp. 314—315.
2. Petitioners' challenges to the established price levels under the 1971 order are without merit. Pp. 315—321.
(a) Mobil's attack on the FPC's evidence of costs is clearly frivolous, since the FPC took extensive evidence of costs in its 1968 order hearings for flowing gas and in both its 1968 and 1971 hearings for new gas, and since the fragments of the record cited by Mobil do not sustain its heavy burden of showing that the FPC's choice was outside what the Court of Appeals could have found to be within the FPC's authority. P. 316.
(b) With respect to Mobil's argument that inclusion of refund workoff credits and contingent escalations in the just and reasonable rates indicates that producers unable to gain part or all of their share of such payments will receive merely their 'bare-bones' costs, which constitute illegally low prices, the Court of Appeals did not err in deciding that it was within the FPC's discretion and expertise to conclude that the refund workoff credits and contingent escalations could provide an opportunity for increased prices that would help in generating capital funds and in meeting rising costs, while assuring that such increases will not be levied upon consumers unless accompanied by increased supplies of gas. Pp. 316—319.
(c) New York's contention that the 1971 order rates for flowing gas are excessive is predicated on an erroneously limited view of the permissible range of the FPC's authority. Where the FPC's justification for increasing the price of flowing gas was the necessity for increased revenues to expand future production, rather than new evidence of differing production conditions, the Court of Appeals, against the background of a serious and growing domestic gas shortage, could properly conclude that the FPC might reasonably decide that, as compared with adjustments in rate ceilings to induce more exploration and production, its responsibility to maintain adequate supplies at the lowest reasonable rate could better be discharged by means of contingent escalation and refund credits. Pp. 319—321.
3. The claims of all three petitioners, with respect to both the contingent escalations on flowing gas and the refund credits, that even if the 1971 rates are sufficient to satisfy the Natural Gas Act's minimum requirements as to amount and, on the basis of the FPC's chosen methodology, are supported by substantial evidence, they are nevertheless unduly discriminatory and therefore unlawful under §§ 4 and 5 of the Act, are also without merit. Pp. 321—327.
(a) Concerning Mobil's argument that undue discrimination results because producers who had not settled their refund obligations will receive advantages from the contingent escalations and refund credits that producers like Mobil, which did settle its obligations, will not receive, it cannot be said that the Court of Appeals misapprehended or grossly misapplied the substantial-evidence standard in concluding that the FPC's assessment of the need for refund credits, compared to the costs and benefits of some other scheme, was adequately supported. Pp. 321—325.
(b) Though New York and MDG argue that the refund credit formula discriminates against pipeline purchasers because it permits producers to work off refunds by offering 50%, rather than 100%, of the new reserves to pipeline purchasers other than those owed the refunds, the Court of Appeals did not err in holding that the refund credit provision, the purpose of which was to increase the supply of gas, was within the FPC's discretion, since the FPC could reasonably conclude that the producers' incentive to explore for and produce new gas in the area, could result in their dedication of new reserves that would exceed in benefit the amount of the refunds. P. 325.
(c) With respect to New York's argument that some producers might abandon their normal business of exploring for and developing new reserves and yet enjoy the increase in their prices for flowing gas if other producers contribute substantial additional reserves, the FPC's belief that producers already operating in the area will continue to do so is at least an equally tenable judgment, and New York offered nothing to overcome the presumption of validity attaching to the exercise of the FPC's expertise. Pp. 326—327.
4. The Court of Appeals' conclusion, contrary to Mobil's contention, that the FPC's fixing of moratoria on new rate filings was supported by required findings of fact and by substantial evidence, did not misapprehend or grossly misapply the substantial-evidence standard. Pp. 327—328.
5. Mobil's argument that the FPC improperly failed to provide automatic adjustments in area rates to compensate for anticipated higher royalty costs, is hypothetical at this stage and in any event an affected producer is entitled to seek individualized relief. P. 328.
6. The Court of Appeals did not err in concluding that the FPC 'acted within the bounds of administrative propriety in abandoning' as a pragmatic adjustment the distinction in maximum permissible rates between casinghead gas and gas-well gas so far as new dedications are concerned, even though casinghead gas was formerly treated as a byproduct of oil and therefore costed and priced lower than gas-well gas. Pp. 328—330.
7. In arguing that the minimum rates provided by the 1971 order to be paid by producers to pipelines for transportation of liquids and liquefiable hydrocarbons are not supported by substantial evidence, Mobil has not met its burden of demonstrating that the Court of Appeals misapprehended or grossly misapplied the substantial-evidence standard. P. 330.
Placid Oil Co. v. F.P.C., 5 Cir., 483 F.2d 880, affirmed.
Carroll L. Gilliam, Washington, D.C., for petitioner Mobil Oil Corp.
George E. Morrow, Memphis, Tenn., for petitioners Public Service Commission of N.Y. and Municipal Distributors Group.
Leo E. Forquer, Washington, D.C., for respondent Federal Power Commission.
John R. Rebman, Houston, Tex., for producer-respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
We review here the affirmance by the Court of Appeals for the Fifth Circuit of a 1971 order of the Federal Power Commission1 that established an area rate structure for interstate sales2 of natural gas produced in the Southern Louisiana area. The Southern Louisiana area is one of seven geographical areas defined by the Commission for the purpose of prescribing areawide price ceilings.3 This is the second area rate case to reach this Court. The first was the Permian Basin Area Rate Cases, 390 U.S. 747, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968), in which the Court sustained the constitutional and statutory authority of the Commission to adopt a system of area regulation and to impose supplementary requirements in the discharge of its responsibilities under §§ 4 and 5 of the Natural Gas Act4 to determine whether producers' rates are just and reasonable.
2
The Court of Appeals affirmed the 1971 order in its entirety as an appropriate exercise of administrative discretion supported by substantial evidence on the record as a whole. Placid Oil Co. v. FPC, 483 F.2d 880 (CA5 1973). We granted the petitions for certiorari in these three cases5 to review the correctness of the Court of Appeals' holding sustaining the 1971 order as in all respects within the Commission's statutory powers, and to determine whether the Court of Appeals misapprehended or grossly misapplied the substantial-evidence standard. 414 U.S. 1142, 94 S.Ct. 894, 39 L.Ed.2d 99 (1974). We affirm.
3
* The Commission first instituted proceedings to establish an area rate structure for the Southern Louisiana area on May 10, 1961. 25 F.P.C. 942. The area consists of the southern portion of the State of Louisiana and the federal and state areas of the Gulf of Mexico off the Louisiana coast. The area accounts for about-one-third of the Nation's domestic natural gas production and has been described as 'the most important gas-producing area in the country.' Southern Louisiana Area Rate Cases, 428 F.2d 407, 418 CA5 1970) (hereafter SoLa I). Proceedings continued over seven years.6 On September 25, 1968, the Commission issued an order establishing an area rate structure, 40 F.P.C. 530, and, on March 20, 1969, a modified order on rehearing, 41 F.P.C. 301.7 Refunds under this structure for overcharges during the pendency of the proceeding amounted to some $375 million.8
4
An appeal was taken to the Court of Appeals for the Fifth Circuit. On March 19, 1970, the Court of Appeals affirmed the FPC orders but with 'serious misgivings,' SoLa I, supra, 428 F.2d at 439. Noting that '(a) serious shortage, in fact, may already be unavoidable . . .,' id., at 437, the Court of Appeals was critical of the Commission's failure adequately to assess 'supply and demand in either a semi-quantitative or qualitative way,' id., at 436. It was reinforced in this view by the evidence, including an FPC Staff Report, issued while the appeal was pending,9 that the Nation was faced with 'a severe gas shortage, with disastrous effects on consumers and the economy alike.' Id., at 435 n. 87.
5
Therefore, although determining 'that affirmance is the best course,' id., at 439, the Court of Appeals declared that the judgment was not in any wise to foreclose the Commission from making such changes in its orders, as to both past and future rates, as it found to be in the public interest. The court noticed the fact that, while the appeal was pending, the Commission, in March 1969, had instituted proceedings to reconsider rates for the off-shore portion of Southern Louisiana, see 41 F.P.C. 378, and later that year expanded the procedure to include the entire area, 42 F.P.C. 1110. Thus, it stated:
6
'The mandate of this Court should not, however, be interpreted to interfere with Commission action that would change the rates we have approved here. We specifically and emphatically reject the contention advanced . . . that the Commission has no power to set aside rates once determined by it to be just and reasonable when it has reason to believe its determinations may have been erroneous. In fact, the existence of the new proceedings, which as we understand them will take into account many of the issues whose absence has concerned us here, has been one of the factors we have considered in deciding to affirm the Commission's decisions.' 428 F.2d, at 444—445.
7
Pending decision on petitions for rehearing, however, the Commission advised the Court of Appeals, in a letter requested by the court, that, unless that court otherwise directed, it did not believe that it had authority to modify, rescind, or set aside a rate order or moratorium affirmed by the court. The Court of Appeals answered in its opinion denying rehearing, 444 F.2d 125, 126—127 (1970):
8
'We wish to make crystal clear the authority of the Commission in this case to reopen any part of its order that circumstances require the reopened. Under section 19(b) of the Natural Gas Act, this Court has the broad remedial powers that inhere in a court of equity, and pursuant to our equitable powers we make it part of the remedy in this case that the authority of the Commission to reopen any part of its orders, including those affecting revenues from gas already delivered, is left intact. The Commission can make retrospective as well as prospective adjustments in this case if it finds that it is in the public interest to do so.
9
'At the same time, we emphasize that our judgment is an affirmance and not a remand. The appropriate place for originally considering what parts of the orders must be reopened in light of new evidence is before the Commission. It may be that the Commission will decide that the refunds it has ordered are just and reasonable or at least that their significance to the public interest is outweighed by the confusion and delay that would result from their reopening. In this event, the Commission will allow its refund orders to stand as they are. Or it may be that the refunds are too burdensome in light of new evidence to be in the public interest. In that case, it is our judgment that the Commission shall have the power and the duty to remedy the situation by changing its orders.'
10
The Commission thereupon formally reopened the 1961 proceeding and consolidated it with the new proceeding, 44 F.P.C. 1638 (1970).10 An extensive record of many thousands of pages of testimony and more than a hundred exhibits was compiled between April 1970 and March 1971.11 Pursuant to the instructions of the Court of Appeals, much of the evidence focused on the gas shortage, projected levels of demand, and estimates of new supply needed to alleviate the problem. Evidence was also adduced bearing upon rate levels needed to reduce additional supply, the potential industry consequences of any new order, and new cost trends based on data unavailable at the time of the earlier proceedings.
11
Contemporaneously with the hearings, settlement conferences were instituted, on motion, by the Presiding Examiner, 46 F.P.C. 86, 103 (1971), and those conferences were attended by producers, pipelines, distributors, state commissions, municipally owned utilities, and the Commission staff. Eventually, a settlement proposal was submitted by one of the parties,12 and, after being placed on the record for comments, it was agreed to by a large majority of all interests.13 An intermediate decision of the Presiding Examiner was waived, and the Commission took up the case.
12
At the outset, the Commission stated that it believed that adoption of the settlement proposal was precluded unless the Commission found the terms to be in the public interest and supported by substantial evidence.14 Accordingly, the Commission evaluated the proposal in the light of the massive record that had been compiled in the decade since 1961, including the additional year of hearings directed in large part to the terms of the settlement proposal and the nature of the supply shortage. The Commission concluded that the terms of the proposed settlement were just and reasonable, and found them to be supported by substantial evidence in the record.15 The ceiling rates established in the 1968 orders, which because of Commission and court stays had never gone into effect, were held 'now (to) perform no office,' 46 F.P.C., at 102.
13
The effective date of the 1971 order was August 1, 1971. By the terms of this order 'flowing gas,' i.e., gas delivered after August 1, 1971, under contracts dated Prior to October 1, 1968, receives treatment different from 'new gas,' i.e., gas delivered after August 1, 1971, under contracts dated after October 1, 1968. The established flowing gas price ceilings are 22.275¢ per thousand cubic feet (Mcf) for gas produced onshore and 21.375¢ per Mcf for gas produced offshore. The established new gas price ceilings are 26¢ for both onshore and offshore gas.
14
Flowing gas ceilings automatically increased 0.5¢ per Mcf on October 1, 1973, and, as a further incentive for increasing the gas supply, the Commission also established increases up to 1.5 per Mcf, contingent upon the industry's finding and dedicating new gas reserves.16 New gas rates automatically increase 1¢ per Mcf on October 1, 1974. A moratorium is imposed upon the filing of producer rate increases for flowing gas until October 1, 1976, and for new gas until October 1, 1977.
15
The Commission also established minimal pipeline rates to be charged producers by pipelines for the transportation of certain liquid and liquefiable hydrocarbons, and eliminated the price differential between casinghead gas (gas dissolved in or associated with the production of oil) and new gas-well gas that it had imposed in earlier cases. 46 F.P.C., at 144. See Permian Basin, 390 U.S. at 760—761, 88 S.Ct. at 1356—1357.
16
The problem of refunds concerns deliveries of flowing gas prior to August 1, 1971. The rates established by the 1971 order were higher than those that would have been established under the 1968 order had they been put into effect.17 If refunds had been calculated on the basis of the 1968 order, they would have aggregated over $375 million. If they had been calculated upon the basis of the 1971 flowing gas ceiling rates, refunds would have aggreated less than $150 million. However, the proposed settlement stipulated a refund obligation of $150 million, with a proviso that this could be worked off by the commitment by a refund obligor of additional gas reserves to the interstate market.18 The Commission adopted this proposed as an integral part of the 1961—1971 rate structure and established a schedule aggregating $150 million of refunds from those that were owed but not yet paid by producers who had collected rates in excess of certain prescribed levels lower than the established flowing gas rates.19
II
17
Before addressing petitioners' arguments, we must consider briefly the situation in which the Commission has found itself in its attempts to regulate the natural gas market; the teachings of Permian Basin and other decisions of this Court as to the extent of the Commission's statutory authority in this area; the limitations upon review by the Court of Appeals of the Commission's order; and the limitations upon review by this Court of the Court of Appeals' affirmance of the order.
18
The history of the Commission's early experience with the Natural Gas Act, 15 U.S.C. § 717 et seq., has been fully developed in our first area rate opinion, Permian Basin, supra, at 755—759, 88 S.Ct. at 1353—1356, and may be merely summarized here. With the pssage of the Act in 1938, 52 Stat. 82, Congress gave the Commission authority to determine and fix 'just and reasonable rate(s),' § 5(a), 15 U.S.C. § 717d(a),20 for the 'sale in interstate commerce of natural gas for resale for ultimate public consumption for domestic, commercial, industrial, or any other use . . ..' § 1(b), 15 U.S.C. § 717(b).21 The Act was patterned after earlier regulatory statutes that applied to traditional public utilities and transportation companies, and that provided for setting rates equal to such companies' costs of service plus a reasonable rate of return.22
19
Until 1954, the Commission construed its mandate as requiring that it regulate the chain of distribution of natural gas only from the point where an interstate pipeline acquired it.23 Because such pipelines were relatively few in number24 and fell within the transportation company model, the Commission was able to apply a traditional regulatory approach, using individualized costs of service as a basis for determining price.25
20
In 1954, however, this Court ruled in Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035, that independent producers are '(n) atural-gas compan(ies)' within the meaning of § 2(6) of the Act, 15 U.S.C. § 717a(6).26 In response, the Commission at first attempted to extend to this new industry its old regulatory methods, including establishment of individual rates based on each producer's costs of service.27 The effort foundered on the sheer size of the task—thousands of independent producers being engaged in jurisdictional sales of gas at that time.28
21
In the early 1960's the Commission discontinued its attempts to deal with individual companies,29 and turned to the area rate method. The Commission established a number of discrete geographical areas within which it believed that costs and general operating conditions were reasonably similar,30 and set out to establish, by convening hearings and compiling massive records, uniform rate schedules that would govern all producers within each area. Upon the conclusion of the first of these undertakings, we reviewed the Commission's efforts and found no reversible error. Permian Basin Area Rate Cases, 390 U.S. 747, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968). See Wisconsin v. FPC, 373 U.S. 294, 83 S.Ct. 1266, 10 L.Ed.2d 357 (1963).
22
But, the Commission was soon confronted with indications, both from data available to it,31 and from criticism of its effort,32 that its cost emphasis in rate determination was being accompanied by a severe shortage in the supply of natural gas being dedicated to the interstate market. Since the Commission's subsequent area rate orders,33 including both its 1968 and 1971 orders, are adapted from the initial Permian Basin model and are governed by the same statutory provisions concerning ratemaking and judicial review, we will preface our discussion of the Commission's response to these difficulties with a brief review of the Permian Basin order and the applicable rules laid down in our opinion sustaining that order.
23
Subsequent to its establishment of geographical areas in 1961,34 the Commission consolidated three of those areas to form the Permian Basin area. The rate structure devised for this area set two ceiling prices, the higher one for gas produced from gas wells and dedicated to interstate commerce after January 1, 1961, and the other for gas-well gas dedicated to interstate commerce before January 1, 1961, and all gas produced from oil wells (casinghead gas) either associated with the production of the oil or dissolved in it.35 The Commission derived the higher rate for the newer 'vintage' gas-well gas from composite cost data obtained both from answers to producer questionnaires and from published data said to reflect the national costs of finding and producing gas-well gas in 1960.36 It derived the lower rate from Permian Basin historical cost data for the older vintage gaswell gas, and applied that rate to both that and casinghead gas without distinction.37 To these composite costs, the Commission added a return of 12%38 on the producers' average production investment,39 obtained by examining the cost data, imputing a rate base, and assuming that gas wells deplete at a constant rate beginning one year after investment and ending 20 years later.40 Finally, an adjustment up or down from the area ceiling rates was specified for gas of higher or lower quality and energy content than set by a selected standard.41 The resulting ceiling rates, including allowances for state taxes, were 14.5 per Mcf for first vintage and cashinghead gas, and 16.5¢ for second vintage gas. For those producers who individually might suffer hardship under this rate schedule, the Commission indicated that it would on rate occasions provide special relief, but it declined to specify what circumstances would justify such action.42
24
On review, the Court of Appeals refused to approve the Commission's order, holding that certain determinations of the ultimate effects of the order had not been made as required by FPC v. Hope Natural Gas Co., 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed. 333 (1944), that more precise delineation of the requirements for relief from the order must be set forth, and that the Commission could not require that producers refund excess charges during the pendency of the proceeding unless it concluded that aggregate actual area revenues exceeded aggregate permissible area revenues, and then apportioned only the excess among producers on an equitable basis. Skelly Oil Co. v. FPC, 375 F.2d 6, 36 (10th Cir. 1967).
25
On certiorari, this Court initially noted that judicial review of the Commission's orders is extremely limited:
26
'Section 19(b) of the Natural Gas Act provides without qualification that the 'finding of the Commission as to the facts, if supported by substantial evidence, shall be conclusive.' More important, we have heretofore emphasized that Congress has entrusted the regulation of the natural gas industry to the informed judgment of the Commission, and not to the preferences of reviewing courts. A presumption of validity therefore attaches to each exercise of the Commission's expertise, and those who would overturn the Commission's judgment undertake 'the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences.' FPC v. Hope Natural Gas Co., supra, 320 U.S. 591, at 602, 64 S.Ct. 281, at 288. We are not obliged to examine each detail of the Commission's decision; if the 'total effect of the rate order cannot be said to be unjust and unreasonable, judicial inquiry under the Act is at an end.' Ibid.
27
'Moreover, this Court has often acknowledged that the Commission is not required by the Constitution or the Natural Gas Act to adopt as just and reasonable any particular rate level; rather, courts are without authority to set aside any rate selected by the Commission which is within a 'zone of reasonableness.' FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 585, 62 S.Ct. 736, 743, 86 L.Ed. 1037. No other rule would be consonant with the broad responsibilities given to the Commission by Congress; it must be free, within the limitations imposed by pertinent constitutional and statutory commands, to devise methods of regulation capable of equitably reconciling diverse and conflicting interests.' Permian Basin, 390 U.S., at 767, 88 S.Ct., at 1360.
28
Applying these limitations in the context of review of area rate regulation, Permian Basin defined the criteria governing the scope of judicial review as follows:
29
'First, (the reviewing court) must determine whether the Commission's order, viewed in light-of the relevant facts and of the Commission's broad regulatory duties, abused or exceeded its authority. Second, the court must examine the manner in which the Commission has employed the methods of regulation which it has itself selected, and must decide whether each of the order's essential elements is supported by substantial evidence. Third, the court must determine whether the order may reasonably be expected to maintain financial integrity, attract necessary capital, and fairly compensate investors for the risks they have assumed, and yet provide appropriate protection to the relevant public interests, both existing and foreseeable. The court's responsibility is not to supplant the Commission's balance of these interests with one more nearly to its liking, but instead to assure itself that the Commission has given reasoned consideration to each of the pertinent factors.' Id., at 791—792, 88 S.Ct., a 1373 (emphasis supplied).
30
Where application of these criteria discloses no infirmities in the Commission's order, the order cannot be said to produce an 'arbitrary result,' and must be sustained. FPC v. Hope Natural Gas Co., 320 U.S., at 602, 64 S.Ct., at 287.
31
Applying these criteria, Permian reversed the Court of Appeals and sustained the Commission's order, although noting that the Commission had not adhered rigidly to a cost-based determination of rates, much less to one that based each producer's rates on his own costs.43 Each deviation from cost-based pricing was found not to be unreasonable and to be consistent with the Commission's responsibility to consider not merely the interests of the producers in 'maintain(ing) financial integrity, attract(ing) necessary capital, and fairly compensat(ing) investors for the risks they have assumed,' but also 'the relevant public interests, both existing and foreseeable.' 390 U.S., at 792, 88 S.Ct., at 1373. 'The Commission's responsibilities necessarily oblige it,' the Court said, 'to give continuing attention to values that may be reflected only imperfectly by producers' costs; a regulatory method that excluded as immaterial all but current or projected costs could not properly serve the consumer interests placed under the Commission's protection.' Id., at 815, 88 S.Ct., at 1385.
32
Permian Basin teaches that application of the three criteria of judicial review of Commission orders is primarily the task of the courts of appeals. For 'this (the Supreme) Court's authority is essentially narrow and circumscribed.' Id., at 766, 88 S.Ct., at 1359. The responsibility to assess the record to determine whether agency findings are supported by substantial evidence is not ours. Section 19(b) of the Act44 provides that '(t)he judgment and decree of the (Court of Appeals) affirming, modifying, or setting aside, in whole or in part, any such order of the Commission, shall be final, subject to review by the Supreme Court . . . upon certiorari . . ..' We have held as to a like provision in the National Labor Relations Act, 29 U.S.C. § 160(e), that thus '(w)hether on the record as a whole there is substantial evidence to support agency findings is a question which Congress has placed in the keeping of the Courts of Appeals. This Court will intervene only in what ought to be the rare instance when the standard appears to have been misapprehended or grossly misapplied.' Universal Camera Corp. v. NLRB, 340 U.S. 474, 491, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1951).
III
33
Before reviewing the Court of Appeals' affirmance of the Commission's 1971 order for compliance with Permian's requirements, we address contentions that challenge the statutory authority of the Commission to adopt the order, rather than the terms of the order itself. The first of these challenges, made by New York and MDG, is that the Commission had no statutory authority to change rates and refund obligations fixed in the Commission's 1968 order after that order was affirmed by the Court of Appeals in SoLa I. Brief for MDG 18; Brief for New York 15. The argument is that the affirmance was 'unqualified' and therefore exhausted the Court of Appeals' powers of review under § 19(b), thus rendering its authorization to the Commission to reopen its 1968 orders without legal effect. But the affirmance of the 1968 order was not 'unqualified.' Although the Commission could not have reopened the order on its own, see Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 254, 71 S.Ct. 692, 696, 95 L.Ed. 912 (1951); FPC v. Hope Natural Gas Co., 320 U.S., at 618, 64 S.Ct., at 295; the Court of Appeals' opinion on rehearing made it 'crystal clear' that, despite the form of the court's judgment, the Commission was fully authorized to reopen any part of the 1968 order that seemed appropriate and necessary if evidence as to the future supply problem indicated that this should be done.
34
The Court of Appeals properly took this step in light of new information, unavailable at the time of the 1968 order, that suggested the possible inadequacy of the 1968 determination, although not necessarily an inadequacy that justified setting aside the order. See Baldwin v. Scott County Milling Co., 307 U.S. 478, 59 S.Ct. 943, 83 L.Ed. 1409 (1939). Moreover, the 1968 order had not been made effective, being continuously stayed until withdrawn by the 1971 order. See 46 F.P.C., at 101. In these circumstances, we cannot say that the action of the Court of Appeals exceeded its powers under § 19(b) 'to affirm, modify, or set aside (an) order in whole or in part.'
35
This jurisdiction to review the orders of the Commission is vested in a court with equity powers, Natural Gas Pipeline Co. v. FPC, 128 F.2d 481 (CA7 1942), see Ford Motor Co. v. NLRB, 305 U.S. 364, 373, 59 S.Ct. 301, 306, 83 L.Ed. 221 (1939), and we cannot say that the Court improperly exercised those powers in the circumstances. Dolcin Corp. v. FTC, 94 U.S.App.D.C. 247, 255—256, 219 F.2d 742, 750—752 (1954).45 Indeed § 19(b) provides that the Court of Appeals may authorize the Commission in proper cases to take new evidence, upon which the Commission may modify its findings of fact and make recommendations concerning the disposition of its original order. Under the Court of Appeals disposition, the 1968 order was therefore not final and thus it was within the power of the Commission to reconsider and change it. See United Gas Improvement Co. v. Callery Properties, Inc., 382 U.S. 223, 229, 86 S.Ct. 360, 364, 15 L.Ed.2d 284 (1965).
36
Only New York presses the second challenge to the Commission's statutory authority to adopt the 1971 order. New York contends that the Commission is without power to adopt as a rate order a settlement proposal that lacks unanimous agreement of the parties to the proceeding. That contention has no merit.
37
The Commission clearly had the power to admit the agreement into the record—indeed, it was obliged to consider it.46 That it was admitted for the record did not, of course, establish without more the justness and reasonableness of its terms. But the Commission did not treat it as such. As we have noted,47 the Commission weighed its terms by reference to the entire record in the Southern Louisiana area proceeding since 1961, and further supplemented that record with extensive testimony and exhibits directed at the proposal's terms.48 We think that the Court of Appeals correctly analyzed the situation and stated the correct legal principles:
38
'No one seriously doubts the power—indeed, the duty—of FPC to consider the terms of a proposed settlement which fails to receive unanimous support as a decision on the merits. We agree with the D.C. Circuit that even 'assuming that under the Commission's rules (a party's) rejection of the settlement rendered the proposal ineffective as a settlement, it could not, and we believe should not, have precluded the Commission from considering the proposal on its merits.' Michigan Consolidated Gas Co. v. FPC, 1960, 108 U.S.App.D.C. 409, 283 F.2d 204, 224 . . ..
39
'As it should FPC is employing its settlement power under the APA, 5 U.S.C.A. § 554(c), and its own rules 18 C.F.R. § 1.18(a), to further the resolution of area rate proceedings. If a proposal enjoys unanimous support from all of the immediate parties, it could certainly be adopted as a settlement agreement if approved in the general interest of the public. But even if there is a lack of unanimity, it may be adopted as a resolution on the merits, if FPC makes an independent finding supported by 'substantial evidence on the record as a whole' that the proposal will establish 'just and reasonable' rates for the area.' 483 F.2d, at 893. (Emphasis in original.)
40
The choice of an appropriate structure for the rate order is a matter of Commission discretion, to be tested by its effects. The choice is not the less appropriate because the Commission did not conceive of the structure independently.
41
New York presents a final orgument against the Commission's authority. It contends that the Court of Appeals' opinion on rehearing in SoLa I authorized modification of the 1968 refund provisions only if the 1968 refunds 'are too burdensome in light of new evidence to be in the public interest.' 444 F.2d, at 127. It argues that this means the Commission was required first to find, based on substantial new evidence, that refunds 'would substantially and adversely affect the producers' ability to meet the continuing gas needs of the interstate market,' Brief for New York 18, and contends that the revision of the refund terms is therefore unauthorized because the Commission made no such finding. New York's premise is unsupportable. The opinion on rehearing is explicit that the Commission was to have 'great flexibility,' and could 'make retrospective as well as prospective adjustments in this case if it finds that it is in the public interest to do so.' 444 F.2d, at 126—127. Moreover, in the opinion under review, the Court of Appeals flatly rejected the argument New York has repeated in this Court. '(W)e categorically rejected (in SoLa I) the notion that the label 'affirmance' could possibly impair FPC's ability to alter or modify any of the provisions, particularly the refund provisions, of its SoLa I rate scheme if it believed that the exigencies of the gas industry required more effective remedial measures.' 483 F.2d, at 904 (emphasis in original).
IV
42
We turn now to petitioners' challenges to the rate order itself. We treat these contentions in three groups: challenges to the established price levels, challenges to the Commission's allocation of gas and receipts among pipelines and producers through the refund credits and contingent escalations, and, finally, claims that certain specific provisions of the rate order lack substantial evidence.
A.
43
Petitioner Mobil contends that the rates fixed for both flowing or first vintage gas and new or second vintage gas are too low. New York and MDG attack the rates for flowing gas as too high, but do not attack the new-gas rates. Each of the arguments is premised on a common error: that certain provisions of the order can be isolated and viewed without regard to the total effect the order is designed to achieve.
44
Mobil's attack on the Commission's evidence of costs is clearly frivolous. The Commission took extensive evidence of costs in its 1968-order hearings for flowing gas, and in both its 1968-order and 1971-order hearings for new gas. In response to the Commission's rates, selected from the final cost 'range' it found to be justifiable on the basis of the entire record, Mobil points to selected fragments of the record. We have examined the testimony cited and do not think that it sustains Mobil's heavy burden of showing that the final Commission choice was outside what the Court of Appeals could have found to lie within the Commission's authority. FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 585, 62 S.Ct. 736, 742, 86 L.Ed. 1037 (1942).
45
Mobil further contends that the inclusion of refund workoff credits and contingent escalations in the Commission's just and reasonable rates indicates that producers unable to gain part or all of their share of such payments will receive merely their 'bare-bones' costs, which constitute illegally low prices. We do not question that such producers may receive less per unit of gas than will others. But that hardly invalidates the Commission's order. See Permian Basin, 390 U.S., at 818—819, 88 S.Ct., at 1386 1387. Mobil's argument assumes that there is only one just and reasonable rate possible for each vintage of gas, and that this rate must be based entirely on some concept of cost plus a reasonable rate of return. We rejected this argument in Permian Basin and we reject it again here. The Commission explicitly based its additional 'non-cost' incentives on the evidence of a need for increased supplies. Obviously a price sufficient to maintain a producer, while not itself necessarily required by the Act,49 may not be sufficient also to encourage an increase in production. As we said in Permian Basin, supra, 390 U.S. at 796 798, 88 S.Ct. at 1375:
46
'The supply of gas-well gas is therefore relatively elastic, and its price can meaningfully be employed by the Commission to encourage exploration and production. . . .
47
'. . . We have emphasized that courts are without authority to set aside any rate adopted by the Commission which is within a 'zone of reasonableness.' . . . The Commission may, within this zone, employ price functionally in order to achieve relevant regulatory purposes; it may, in particular, take fully into account the probable consequences of a given price level for future programs of exploration and production. Nothing in the purposes or history of the Act forbids the Commission to require different prices for different sales, even if the distinctions are unrelated to quality, if these arrangements are 'necessary or appropriate to carry out the provisions of this Act.' . . . We hold that the statutory 'just and reasonable' standard permits the Commission to require differences in price for simultaneous sales of gas of identical quality, if it has permissibly found that such differences will effectively serve the regulatory purposes contemplated by Congress.'
48
Plainly the Court of Appeals did not err in deciding that it was well within Commission discretion and expertise to conclude that the refund workoff credits and contingent escalations could provide opportunity for increased prices that would help in generating capital funds and in meeting rising costs, while assuring that such increases would not be levied upon consumers unless accompanied by increased supplies of gas. It is true that the Commission concluded that it could not determine the precise amount of additional gas supply that would be found and dedicated to interstate sales as a result of this formula. But this was also true of any change it might have made in gas prices. The Commission took massive evidence on supply, demand, and the relation between the two.50 Its difficulties, while not minor,51 did not stem from any failure to seek answers. Rather, the Commission pointed out that the results of exploratory activity are by nature dependent to some extent on chance, and the level of exploratory activity in turn may be influenced by many other factors besides price, including, the Commission said, 'monetary inflation, changes in real cost of input resources, availability of input resources, changes in alternative investment opportunities, development of new producing areas, size of prospective reservoirs, changes in business confidence, degree of directionality of exploratory effort (toward gas or oil), changes in industry technology, and other factors influencing business decisions.'52 We think the record sufficiently supports the Commission's conclusion:
49
'Summarizing, there exists a positive relationship between gas contract price levels and exploratory effort; no reliable quantitative forecasts may be made by increments of additional gas supply resulting from specific increased gas prices; increases in ceiling prices which yield increases in producer revenues will result in expanded gas exploration activity; and the adequacy of expanded gas exploratory activity in terms of sufficiency of gas supply in relation to gas demands must be determined by continued Commission observation of the results of our decisions.' 46 F.P.C., at 124.
50
New York's contention that the rates on flowing or first vintage gas are not supported by substantial evidence is also predicated on an erroneously limited view of the permissible range of the Commission's authority to employ price to encourage exploration or production. Reduced to simplest form, New York's contention is that the 1968 order set just and reasonable rates for first vintage gas, that no new evidence was introduced as to the cost of that gas, and that the 1971-order prices for that gas are consequently excessive. Again, as we said in Permian, the Commission is not so limited in its construction of rate formulae. Its justification here for increasing the price of flowing or first vintage gas was not that new evidence showed that the conditions of producing that gas differed from the conditions found in the 1968 opinion, but, as he Commission frankly acknowledged, new revenues were deemed necessary to expand future production. As between placing the burden of that expansion on new or second vintage gas alone or spreading it over both old and new gas, it judged the latter more equitable and more likely to lead to the immediately increased capital necessary in the face of a crisis. We see nothing in New York's argument to suggest that the Commission could not—in view of its finding that increased revenues were necessary—place the burden of those payments on all users rather than on those alone who purchased gas in the future. Indeed, it is worth noting that the Commission's rate orders in Permian included in the cost components of gas a noncost price element for future expansion of exploratory effort.53
51
In this situation, the Commission could reasonably choose its formula as an appropriate mechanism for protecting the public interest. And, against the background of a serious and growing domestic gas shortage, the Court of Appeals could certainly conclude that the Commission might reasonably decide that, as compared with adjustments in the rate ceilings for gas producers to induce more exploration and production, its responsibility to maintain adequate supplies at the lowest reasonable rate could better be discharged by means of the contingent escalation and refund credit provisions. We therefore agree with the Court of Appeals' holding that 'these periodic escalations were a proper subject for the exercise of administrative discretion and clearly fall within that 'zone of reasonableness' which we allow FPC on review.' 483 F.2d, at 908.
B
52
Mobil, New York, and MDG all raise claims that even if the Commission's rates are sufficient to satisfy the Act's minimum requirements as to amount and, on the basis of the Commission's chosen methodology, are supported by substantial evidence, they are nonetheless unduly discriminatory and therefore unlawful under §§ 4 and 5 of the Act. This attack is directed both to the contingent escalations on flowing or first vintage gas and to the refund credits.
53
The background to Mobil's argument is a Commission program inaugurated after promulgation in 1960 of guidelines for area rate regulation. Statement of General Policy No. 61—1, 24 F.P.C. 818 (1960); Fourth Amendment to Statement of General Policy No. 61—1, 26 F.P.C. 661 (1961). That program was aimed at disposing of claims arising from rates that exceeded guideline levels. The program encouraged settlement of contested rate dockets and resulted in substantial producer refunds, reduction of producer rates to guideline levels, and moratoria on producer rate increases for substantial periods. Major producers like Mobil that cooperated with the program thus had little if any refund obligation to 'work off' among the $150 million refunds directed by the 1971 order, whereas producers who for over a decade had not cooperated with FPC but had continued collection of higher rates, had high refund liabilities, and thus enjoyed the benefits of the refund credit formula. Mobil contends undue discrimination results because these producers earn refund credits by dedicating new natural gas reserves which are not counted toward industry escalations, yet also receive all escalations in flowing gas ceiling rates earned by dedication of new natural gas reserves by other producers. Moreover, Mobil's argument continues, the refund credits provide the noncooperating producers with working capital they may use, for example, in competitive lease biddings and other corporate activities, while cooperating producers like Mobil are not allowed comparable allowances in the revenues to be realized from the area rates.
54
The Commission squarely faced up to the Mobil argument as follows, 46 F.P.C., at 109—110:
55
'The substance of their argument is that the rate design in the settlement proposal unlawfully discriminates against producers who in the past cooperated with the Commission and consumer and distributor interests by executing companywide settlements, and made refunds which reduced their revenues to the general level of the Commission's Section 7 guideline level, and in favor of producers who did not enter into such rate settlements or otherwise reduce their contested Section 4 and Section 7 rates. The latter . . . in the meantime have collected rates considerably higher than those realized by the group which settled. Under the proposed settlement, as Mobil points out, one group is in effect rewarded for their relative intransigence—they will be able to retain revenues collected up to the agreed 22.375¢ (where their contracts permit) and achieve a favored revenue position.
56
'The logic of this (Mobil's) position cannot be assailed. Candor requires us to admit that some of the predicted inequities as among producers will surely occur, and those who have attempted to work 'within the system' are comparatively disadvantaged. We have chosen to go the route of the alternative rate design suggested in the (settlement) proposal. The inequitable consequences which might flow from it have to be compared with its advantages, and . . . no scheme can be free of some inequities. The broader acceptability of the (settlement) proposal with the distributor group impels us to act as we do.'
57
In other words, it was the Commission's judgment that even though the refund credit device does not operate as favorably for producers who paid refunds and lowered rates, the advantages in the public interest that could result from encouraging exploration and increased production overrode such possible inequitable consequences. The Court of Appeals held that in thus striking the balance, the Commission acted within its statutory authority upon substantial evidence. The Court of Appeals stated, 483 F.2d, at 905:
58
'FPC concluded that the overall structure would stimulate greater exploration and development and have a general pro-competitive effect. We will not reject an administrative decision merely because one producer's piece of cake is iced and another's is not. The crucial factor, in total alignment with both Permian and SoLa I, is that both get some cake. Given the wisdom of the administrative desire to elicit new supply, and accepting the proposition that the incalculable relationship between rate and supply is positive, we refuse to tamper with an overall program which effectively exploits that relationship. FPC's order setting the total refund obligation of all gas producers in (the Southern Louisiana area) is therefore fully sustained.'
59
The question ultimately becomes whether this degree of discrimination in some of the provisions of the rate order renders the order unjust and unreasonable as a whole, despite its overall balance of effects and purposes. Obviously, some discrimination arises from the mere fact of area, rather than individual-producer, regulation, but Permian held such effects justified. Similarly, departure from cost basing in setting rates can, on Mobil's theory of the meaning of 'discrimination,' be said to be discriminatory, but Permian held that this too may be justified by other regulatory concerns. Here, although the impact on Mobil exists, the size of that impact will depend on the fortuity of other producers' success in future exploratory efforts, and, of course, the favorable terms of its settlement would have to be considered in mitigation of that impact.
60
We cannot say that the Court of Appeals misapprehended or grossly misapplied the substantial-evidence standard in concluding that the Commission's assessment of the need for the refund credits, compared to the costs and benefits of some other scheme, was adequately supported. Mobil voluntarily exercised a business judgment in deciding early in the course of the proceedings to compromise in advance refund liabilities that might be imposed upon it at the conclusion of the various rate proceedings. In a sense, therefore, the claimed discrimination arises solely from its voluntary decision. This was part of the Commission's answer to Mobil's contention, 46 F.P.C., at 135, 'Parties who enter into settlements or those who refuse to do so, always run the risk that the ultimate Commission determination may be higher or lower than the settlement levels.' And the Court of Appeals pointed out, 483 F.2d, at 906 n. 31: 'If the (1971) rates were lower than those established in these agreements, the private settlements would have been worth-while. As it turns out, FPC was more generous in (1971) than was anticipated. But this clearly furnishes no basis for attack.' Moreover, it is a matter of speculation whether Mobil's gain from its settlement actually might be less advantageous than its hypothetical gains from refund credits.
61
New York and MDG argue that the refund credit formula is discriminatory against pipeline purchasers because it permits producers to work off refunds by offering 50%, rather than 100%, of the new reserves to pipeline purchasers other than those owed the refunds. It may suffice to answer that the pipeline purchasers affected make no complaint. In any event, since the purpose of the device is to increase supply, we cannot say that the Court of Appeals erred in holding that the provision was within Commission discretion. The record shows that two-thirds of the refund obligations are owed to three of the 14 pipeline companies serving the area.54 The Commission could reasonably conclude that in guaranteeing that 50% of the new reserves must be offered to these three companies, their producers' incentive to explore for and produce new gas anywhere in the area, could result in their dedication of new reserves that would exceed in benefit the amount of the refunds.
62
It is also contended that, because the work-off provision of the order applies entirely to present producers, the work-off provision 'imperil(s) the entry of new producer entrants and (gives) a competitive advantage to producers who had charged the most unreasonable rates in the past.' Brief for MDG 47. The 0.5¢ per Mcf incentive increases on flowing gas are attacked on the same ground. Brief for New York 37. The Court of Appeals, addressing this attack upon both the contingent escalation provisions and the refund work-offs, sufficiently answered these arguments:
63
'And for that unnamed new market entrant, for whom much concern is expressed, we fail to see why he would be in the least bit dissuaded from committing new reserves at 26¢/Mcf by the fact that it might allow some of his competitors to raise their 22.375¢/Mcf flowing gas price by a half-penny.' 483 F.2d, at 908.
64
Finally, New York argues that some producers might abandon their normal business of exploring for and developing new reserves and yet enjoy the 0.5¢ per Mcf increase in their prices for flowing gas if other producers go ahead and contribute substantial additional reserves. We are not persuaded. The Commission's belief that producers already operating in the area will continue to do so is certainly at least an equally tenable judgment.
65
The Commission's purpose is to obtain increasing production of gas, and its targets are not so demonstrably unrelated as to justify acceptance of New York's fears that contingent escalations will have a negative effect on overall exploratory effort. In any event, other than the expressed fears, New York offered nothing to overcome the 'presumption of validity (that) attaches to each exercise of the Commission's expertise . . . (T)hose who would overturn the Commission's judgment undertake 'the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences." Permian Basin, 390 U.S., at 767, 88 S.Ct., at 1360.
C
66
We come last in our consideration of the Commission's order to a series of more narrowly drawn objections raised by the various parties. Mobil objects to the Commission's fixing of moratoria on new rate filings—until October 1, 1976, for flowing or first vintage gas contracts, and until October 1, 1977, for new or second vintage gas contracts. It contends that those provisions are unsupported by required findings of fact and by substantial evidence. The Court of Appeals reached a contrary conclusion and we are not able to say that this conclusion misapprehended or grossly misapplied the substantial-evidence standard. We pointed out in Permian Basin that, unless raised as an attack on the viability of the entire order, such claims are, at best, premature. It is true, as Mobil argues, that the underlying conditions of stability justifying the moratorium in Permian have been found by the Commission to be no longer true. But the Commission has responsively shifted from reliance upon stable prices to reliance upon automatic escalations together with refund credits and contingent escalations. Even as to producers like Mobil that settled (for a yet-unknown financial benefit) their refund obligations, the contingent escalations and automatic escalations introduced for the purpose of both encouraging increased exploratory activity and covering inflation costs offer adequate assurances of keeping those producers above that line where a moratorium might run afoul of the minimum return required under the Act and the Constitution. See Permian Basin, supra, at 769—771, 88 S.Ct., at 1361—1362.
In addition, as the Court of Appeals said:
67
'(T)here are several alternative methods by which a single aggrieved producer may establish higher rates as his circumstances warrant. . . . Thus, the system is so structured that FPG can retain industry and area wide rate stability for a period of at least five years while simultaneously protecting the financial integrity of the individual producer. And if the change in circumstances is so widespread that the area rate is no longer economically feasible as set, FPC has the power to lift its moratorium or establish new area rates, or both.' 483 F.2d, at 909.
68
Mobil also complains that the Commission failed to provide automatic adjustments in area rates to compensate for anticipated higher royalty costs. It relies on Mobil Oil Corp. v. FPC, 149 U.S.App.D.C. 310, 463 F.2d 256 (1972), where the Court of Appeals for the District of Columbia Circuit reversed a Commission holding that subjected royalties to FPC administrative ceilings. Mobil argues that under that decision the 1971 rate schedules must take into account the possibility of higher royalty obligations. We agree with the Court of Appeals that Mobil's argument is hypothetical at this stage and that in any event an affected producer is entitled to seek individualized relief. The Court of Appeals said:
69
'(W)e are not willing to alter or stay the implementation of area wide rates for the entire industry merely on the basis of what might happen to some producers' costs if (the District of Columbia Circuit's) statement of the law prevails.
70
'If, as subsequent events develop, the producers are put in a bind by their royalty obligations, they may certainly petition FPC for individualized relief. Permian contemplated it.' 483 F.2d, at 911 (emphasis in original).
71
New York objects to the Commission's elimination of the distinction in maximum permissible rates between casinghead gas and gas-well gas so far as new dedications are concerned. Casinghead gas has traditionally been treated as a byproduct of oil and therefore costed and priced lower than gas-well gas. The Court of Appeals held that 'FPC acted within the bounds of administrative propriety in abandoning any such distinction.' Id., at 910. We cannot say that this conclusion, supported by the following reasoning, was error:
72
'We believe that several considerations support this course of action: (i) 'the exigencies of administration demand the smallest possible number of separate area rates', Permian, supra, 390 U.S. at 761, 88 S.Ct. at 1357, . . . (ii) there is a serious problem of allocating the proper amount of exploration and development expenses between oil and gas, see SoLa I: 428 F.2d 422 n. 30, (iii) imposing a lower price on casinghead gas might "invite the divergence of such gas to the intrastate market," Op: 598, 167, and (iv) making the production of casinghead gas economically unfeasible might encourage profit-minded producers to flare it rather than market it—thus making natural gas in (the Southern Louisiana area) not merely a wasting but a wasted, asset. . . .'
73
483 F.2d, at 909 (emphasis in original).55 Such pragmatic adjustments were used in Permian Basin as a way of equating first vintage gas and all casinghead gas, new and old. All that the Commission has done here is to equate all new casinghead gas with all new gas just as old casinghead gas has always been equated with old gas-well gas.
74
Mobil complains of the provision of the order that established minimum rates to be paid by producers to pipelines for transportation of liquids and liquefiable hydrocarbons. Mobil argues that these minimum rates are not supported by substantial evidence. The Court of Appeals disagreed. 'We have examined the testimony regarding this matter and conclude that FPC had a substantial evidentiary basis from which it could conclude that the particular rates which it established should supply a reasonable floor on these charges. This answers Mobil's objection.' Id., at 911. Mobil has not met its burden of demonstrating that the Court of Appeals misapprehended or grossly misapplied the substantial-evidence standard.
V
75
The overriding objective of the Commission was, as the Court of Appeals observed, to adopt 'a total rate structure to motivate private producers to fully develop (the Southern Louisiana area's) resources.' Id., at 891. The Commission's findings, 46 F.P.C., at 102, emphasize that goal:
76
'Our duty is to take all the action we believe necessary to reverse a downtrend of the exploration and development effort, thereby to increase the likelihood of augmenting the national inventory of proved reserves of natural gas. We would be derelict—we can think of no softer word—if we were to be guided by the legalisms of the past in seeking solutions to the problems which have grown like barnacles as this case has aged and its size has mounted.'
77
Features of the 1971 order designed to increase supplies of natural gas may strike some as novel but we have emphasized that the Commission 'must be free . . . to devise methods of regulation capable of equitably reconciling diverse and conflicting interests.' Permian, 390 U.S., at 767, 88 S.Ct., at 1360. That principle has obvious applicability in this time of acute energy shortage. This accents the observation, apparently still the case, that 'area regulation of producer prices is avowedly still experimental in its terms and uncertain in its ultimate consequences.' Id., at 772, 88 S.Ct., at 1362. For, as the Court of Appeals said:
78
'Cast in the perspective of the human travail, some might say that the dozen year experience with area rate regulation should arguably justify a holding that the experimental phase has passed. In 1971, . . . however, FPC had only twice been the beneficiary of the judicial function to declare 'what the law is.' No one can honestly say that judges have been any more sure than commissioners, as all struggle with a problem that grows out of the peculiar mixture of a simultaneous service and exhaustion of a depletable asset. All have been groping. The day for groping is not yet over. And it does not denigrate what FPC has done to say that much may yet be imperfect and much remains to be done or redone. So we can find that FPC has conscientiously attempted to establish 'just and reasonable' rates within the framework allowed by judicial preceddent, yet, it is still experimenting.' 483 F.2d, at 889.
79
We cannot now hold that, in these circumstances, the Court of Appeals erred in deciding that the Commission's 1971 order was an appropriate exercise of administrative discretion supported by substantial evidence.
80
Affirmed.
81
Mr. Justice STEWART and Mr. Justice POWELL took no part in the consideration or decision of these cases.
1
Opinion No. 598, 46 F.P.C. 86 (1971), together with the Commission's order correcting certain errors and denying rehearing as to all other issues, Opinion No. 598—A, 46 F.P.C. 633 (1971).
2
As in Permian Basin Area Rate Cases, 390 U.S. 747, 754 n. 2, 88 S.Ct. 1344, 1353, 20 L.Ed.2d 312 (1968), sales within the Commission's jurisdiction will, for convenience, be termed 'jurisdictional' or 'interstate' sales. See n. 17, infra.
3
The Court of Appeals reported the status of area rate proceedings in 483 F.2d 880, 886 n. 3. The Commission has updated that information as follows:
'1. Permian Basin Area
'Opinion Nos. 468 and 468—A, 34 FPC 159, and 1068, respectively (1965), affirmed Permian Basin Area Rate Cases, 390 U.S. 747 (88 S.Ct. 1344, 20 L.Ed.2d 312) (1968)
'New rates for this area were established in:
'Opinion Nos. 662 and 662—A (Area Rate Proceeding, Permian Basin Area), —- FPC —-, —-, (Docket No. AR70—1 (Phase I), issued August 7, 1973, and September 28, 1973, respectively); pending review sub nom. Chevron Oil Co., Western Division, et al. v. F.P.C. (9th Cir. Nos. 73—2861, et al., filed September 28, 1973)
'2. Southern Louisiana Area
'Opinion Nos. 546 and 546—A, 40 FPC 530, 41 FPC 301, respectively (1968), affirmed sub nom. Austral Oil Co., et al. v. F.P.C., 428 F.2d 407 (5th Cir. 1970), on rehearing, 444 F.2d 125 (1970); certiorari denied sub nom. Municipal Distributors Group v. F.P.C., 400 U.S. 950 (91 S.Ct. 241, 27 L.Ed.2d 257) (1970)
'New rates for this area were established in:
'Opinion Nos. 598 and 598—A, 46 FPC 86 and 633, respectively (1971), affirmed sub nom. Placid Oil Co., et al. v. F.P.C., 483 F.2d 880 ((5th Cir.) 1973) (the instant case).
'3. Texas Gulf Coast Area
'Opinion Nos. 595 and 595—A, 45 FPC 674 and 46 FPC 827, respectively (1971), reversed and remanded sub nom. Public Service Commission of the State of New York, et al. v. F.P.C., 487 F.2d 1043 (D.C.Cir. 1973), certiorari pending sub nom. Shell Oil Co., et al. v. Public Service Commission of the State of New York, et al. (Sup.Ct.Nos. 73—966, et al., filed December 22, 1973).
'4. Hugoton-Anadarko Area
'Opinion No. 586, 44 FPC 761 (1970), affirmed sub nom. People of the State of California, et al. v. F.P.C., 466 F.2d 974 (9th Cir. 1972).
'5. Other Southwest Area
'Opinion Nos. 607 and 607—A, 46 FPC 900 and 47 FPC 99, respectively (1971), affirmed sub nom. Shell Oil Co., et al. v. F.P.C., 484 F.2d 469 (5th Cir. 1973), certiorari pending sub nom. Mobil Oil Corp. v. F.P.C.
(Sup.Ct.No.73—438, filed September 6, 1973).
'6. Appalachian and Illinois Basin
'Order Nos. 411, 411—A and 411—B, 44 FPC 1112, 1334 and 1487, respectively (1970) (these orders were never appealed).
'The Commission declined to establish new area rates for this area in Opinion No. 639, 48 FPC 1299 (1972), affirmed sub nom. Shell Oil Co., et al. v. F.P.C., 491 F.2d 82 (5th Cir. Nos. 73 1369 (73—1329) et al., decided March 14, 1974).
'7. Rocky Mountain Area
'Opinion Nos. 658 and 658—A, 49 FPC 924 and —- FPC —-, respectively (1973), petition for review filed and dismissed on motion of petitioner sub nom. Exxon Corporation v. F.P.C. (D.C.Cir. No. 73—1854, dismissed February 22, 1974).
'Opinion Nos. 658 and 658—A prescribed just and reasonable rates for gas produced in this area from wells commenced prior to January 1, 1973 and sold under contracts dated prior to October 1, 1968. Sales from this area which are not covered by the rates established in Opinion Nos. 658 and 658—A will be governed by the rates prescribed in the Commission's pending nationwide rate roceedings (see below). Pending completion of the nationwide proceedings, such sales are being permanently certified under Section 7 of the Natural Gas Act, 15 U.S.C. § 717f, at the initial rates prescribed in Order No. 435, 46 FPC 68 (1971) sub nom. American Public Gas Association, et al. v. F.P.C., 498 F.2d 718 (D.C.Cir. Nos. 72—1812, et al., May 23, 1974).'
The Commission further advises that '(p)roceedings to establish uniform nationwide rates for all jurisdictional producer sales have been instituted at the Commission. When these proceedings are completed, the rates prescribed therein will supersede all area rates. As to gas from wells commenced on or after January 1, 1973, see;
'Notice of Proposed Rulemaking and Order Prescribing Procedures, 38 Fed.Reg. 10014 (Docket No. R—389—B, issued April 11, 1973).
'As to gas from wells commenced prior to January 1, 1973, see;
'Notice of Proposed Rulemaking and Order Prescribing Procedures,
38 Fed.Reg. 14295 (Docket No. R—478, issued May 23, 1973).' Memorandum from General Counsel, FPC (May 17, 1974).
As to the Commission's shift from individual ratemaking through an adjudicative procedure to area ratemaking through a rulemaking procedure, see Dakin, Ratemaking as Rulemaking—The New Approach at the FPC: Ad Hoc Rulemaking in the Ratemaking Process, 1973 Duke L.J. 41.
4
Sections 4(a) and 5(a), 15 U.S.C. §§ 717c(a) and 717d(a), respectively provide:
§ 4(a) 'All rates and charges made, demanded, or received by any natural-gas company for or in connection with the transportation or sale of natural gas subject to the jurisdiction of the Commission, and all rules and regulations affecting or pertaining to such rates or charges, shal be just and reasonable, and any such rate or charge that is not just and reasonable is declared to be unlawful.'
§ 5(a) 'Whenever the Commission, after a hearing had upon its own motion or upon complaint of any State, municipality, State commission, or gas distributing company, shall find that any rate, charge, or classification demanded, observed, charged, or collected by any natural-gas company in connection with any transportation or sale of natural gas, subject to the jurisdiction of the Commission, or that any rule, regulation, practice, or contract affecting such rate, charge, or classification is unjust, unreasonable, unduly discriminatory, or preferential, the Commission shall determine the just and reasonable rate, charge, classification, rule, regulation, practice, or contract to be thereafter observed and in force, and shall fix the same by order: Provided however, That the Commission shall have no power to order any increase in any rate contained in the currently effective schedule of such natural gas company on file with the Commission, unless such increase is in accordance with a new schedule filed by such natural gas company; but the Commission may order a decrease where existing rates are unjust, unduly discrimintory, preferential, otherwise unlawful, or are not the lowest reasonable rates.'
5
Petitioner in No. 73—437, Mobil Oil Corp., is a major producer of natural gas in the Southern Louisiana area. Petitioner in No. 73—457, Public Service Commission of the State of New York and petitioner in No. 73—464, Municipal Distributors Group—A group of approximately 200 municipally owned gas distributors—represent major consumer interests. Hereafter in this opinion they will be referred to respectively as 'Mobil,' 'New York,' and 'MDG.' Although all three attack at times the same provisions of the 1971 order, the attacks make different arguments as best serve the self-interest of the particular petitioner. Thus, the ceiling rate for flowing gas established by the Commission includes a noncost factor designed to facilitate investment by producers in exploration and development of new gas reserves. Mobil, understandably concerned with higher prices, argues that the noncost addition is not enough; indeed, that the rates fixed both for flowing gas and for new gas are too low. New York and MDG, on the other hand, concerned with lower prices, object that the rates for flowing gas are too high and reduce the level of refund obligations.
6
Approximately five years were consumed by hearings, and the trial examiner's opinion issued on December 30, 1966, 40 F.P.C. 703.
7
Pursuant to its authority, upheld in Permian, to use price flexibly, the Commission established three 'vintages' for onshore gas delivered under contracts made, respectively, (1) before 1961, (2) between January 1, 1961, and October 1, 1968, and (3) after October 1, 1968. It set price ceilings for the three vintages, respectively, at 18.5¢ per thousand cubic feet (Mcf), 19.5¢ per Mcf, and 20¢ per Mcf. For offshore gas in the federal domain, which is not subject to the Louisiana severance tax, the ceilings were 1.5¢ per Mcf below onshore levels. The Commission also ordered refunds aggregating approximately $375 million for gas sold and delivered between the initiation of the proceedings and the effective date of its opinion, October 1, 1968, at prices above the established pre-October 1 ceilings. Finally, it established, subject to the right of individual producers to petition for exceptions, an indefinite moratorium on rate increases above the pre-October 1 ceilings, and a moratorium until January 1, 1974 (over five years), on rate increases above the post-October 1 maximum. Such moratoria provide for automatic suspension of any rate filing, without determination of justness and reasonableness. See, e.g., United Gas Imp. Co. v. Callery Properties, Inc., 382 U.S. 223, 86 S.Ct. 360, 15 L.Ed.2d 284 (1965).
8
As of the end of 1970, the precise amount of these refunds was $376,428,000, see 5 App. 237e, but they were accruing interest under terms of the Commission's order. Opinion No. 546, 40 F.P.C. 530 (1968).
9
See Sola I, 428 F.2d 407, 435 n. 87 (CA5 1970). This report was updated by FPC Staff Report No. 2, National Gas Supply and Demand 1971—1990 (1972), which states in part: "The emergence of a natural gas shortage during the past two years marks a historic turning point—the end of natural gas industry growth uninhibited by supply considerations. ... For practical short-term purposes we are confronted with the fact that current proven reserves in the lower 48 states . . . have dropped from 289.3 trillion cubic feet (Tcf) in 1967 to 259.6 in 1970, a 10.3 percent drop within a three-year period. . . ." FPC v. Louisiana Power & Light Co., 406 U.S. 621, 626 n. 2, 92 S.Ct. 1827, 1831, 32 L.Ed.2d 369 (1972).
10
On January 26, 1971, the consolidated proceeding was expanded to include all rate certification proceedings that had been, or would have been, initiated in the Southern Louisiana area during the pendency of the case. Pet. for Cert. of New York 9.
11
46 F.P.C., at 101.
12
United Distribution Companies, a group of 32 major distribution companies. Id., at 103 n. 25.
13
The Commission's tabulation stated:
'In support of the settlement proposal are 32 major distribution companies representing 25 percent of the gas distribution operations in the United States, serving about 10.3 million customers at retail; 55 gas distribution companies which supply gas service to more than 10 million customers; all interstate pipelines purchasing gas from the Southern Louisiana area; and 46 natural gas producers, comprising 80 percent of the total gas production flowing from the area. . . . The Commission staff likewise supported the settlement proposal.' Id., at 103.
14
The Commission opinion states:
'We have more than a settlement proposal before us. We have the entire record made in the original Southern Louisiana proceedings, plus the record opened with the institution of Docket No. AR 69—1 and concluded after Docket No. AR 61—2 was consolidated with it. The settlement proposal was obviously heavily influenced by the teachings of (SoLa I), as the parties perceived those teachings, and so was the record made in conjunction with it. It is our duty to review that record and to make findings thereon, and to come to conclusions therefrom. Only if substantial evidence supports it can we approve the settlement proposal, and this means that we must analyze supply and demand, supply-cost relationships, and costing methodology. Rate design, incentives, refunds, and economic considerations, as the record permits insight into these matters, must also be discussed.' Id., at 106.
15
The Commission's conclusion that the rates were just and reasonable is to be found in 46 F.P.C., at 110. Conclusions that they were supported by substantial evidence appear throughout the opinion following appropriate examination of the record evidence. See, e.g., id., at 131, 137—138, 142.
16
Under the formula if, before October 1, 1977, the industry as a whole finds and dedicates to the interstate market new gas reserves in the Southern Louisiana area of seven and one half Tcf, the rate for flowing gas will escalate by 0.5¢; if, prior to that date, such reserves equal eleven and one quarter Tcf, the rate will increase by an additional 0.5¢; if, prior to the same date, such reserves equal 15 Tcf, a final 0.5¢ escalation will become effective. Id., at 143.
17
The rates that would have been established had the 1968 orders become effective ranged from 17¢ per Mcf to 20¢ per Mcf.
18
The Commission's formula works thus: Any company with a 'refund obligation' to any natural gas pipeline company is allowed to reduce the refund obligation by one cent for each Mcf of new gas reserves committed to the interstate market in the Southern Louisiana area during the period ending October 1, 1977. Any portion of the 'refund obligation' not so discharged is payable in cash with interest, subject to certain special relief provisions for producers who either achieve 65% of their obligations by August 1, 1976, or who have nonetheless made a 'sincere and diligent effort' to discharge them. Opinion No. 598—A 46 F.P.C. 633, 641 (1971). The producer is required to commit, or give right of first refusal to, at least 50% of the new reserves to the purchaser to whom the refund would otherwise by payable. The reserves committed to reduce the refund obligation may not be counted by the producer committing those reserves as a part of the industry reserves required to trigger the escalated prices for flowing gas referred to in n. 16 above.
19
The rate levels for refund purposes are as follows:
(a) For deliveries prior to January 1, 1965, 20.625¢ per Mcf for onshore gas and 19.625¢ per Mcf for offshore gas.
(b) For deliveries from January 1, 1965, to September 30, 1968, 21.25¢ per Mcf for onshore gas and 20.25¢ per Mcf for offshore gas.
(c) For deliveries from October 1, 1968, to January 1, 1971, 30.5% of the difference between revenues during this period based on rates prior to October 1, 1970, and the revenues that would have resulted during this period through the application of rates established in SoLa I, as modified. This percentage factor of 30.5 may be increased to as high as 33% to produce the $150 million refund total.
(d) For deliveries after January 1, 1971, base area rates prescribed in the 1971 order, see 46 F.P.C., at 140.
20
See n. 4, supra.
21
Section 717(b) provides:
'The provisions of this chapter shall apply to the transportation of natural gas in interstate commerce, to the sale in interstate commerce of natural gas for resale for ultimate public consumption for domestic, commercial, industrial, or any other use, and to natural-gas companies engaged in such transportation or sale, but shall not apply to any other transportation or sale of natural gas or to the local distribution of natural gas or to the facilities used for such distribution or to the production or gathering of natural gas.'
22
See, e.g., Interstate Commerce Act, 49 U.S.C. § 1 et seq. See Kitch, Regulation of the Field Market for Natural Gas by the Federal Power Commission, 11 J. Law and Econ. 243 (1968); Note Legislative History of the Natural Gas Act, 44 Geo.L.J. 695, 702, 704 (1956).
The contention was early made that in regulating the ultimate source of a production, here the natural-gas producer, the problem is not to ensure a reasonable rate of return, but to use prices functionally to produce a supply that will satisfy a socially selected level of demand, and efficiently to allocate that supply. See FPC v. Hope Natural Gas Co., 320 U.S. 591, 629, 64 S.Ct. 281, 300, 88 L.Ed. 333 (1944) (separate opinion of Jackson, J.):
'The heart of this problem is the elusive, exhaustible, and irreplaceable nature of natural gas itself. Given sufficient money, we can produce any desired amount of railroad, bus, or steamship transportation, or communications facilities, or capacity for generation of electric energy, or for the manufacture of gas of a kind. In the service of such utilities one customer has little concern with the amount taken by another, one's waste will not deprive another, a volume of service can be created equal to demand, and today's demands will not exhaust or lessen capacity to serve tomorrow. But the wealth of Midas and the writ of man cannot produce or reproduce a natural gas field.'
Compare, for a review of the possible purposes of natural gas regulation and the arguments for and against the scheme of the Natural Gas Act, Breyer & MacAvoy, The Natural Gas Shortage and the Regulation of Natural Gas Producers, 86 Harv.L.Rev. 941, especially 944—952 (1973).
23
See Columbian Fuel Corp., 2 F.P.C. 200 (1940); cases cited in Permian Basin, 390 U.S., at 756 n. 7, 88 S.Ct., at 1354. Section 1(b), 15 U.S.C. § 717(b), exempts 'the production or gathering of natural gas' from the Act.
Both the reason for the Commission's view and the logical infirmity in it appear in the legislative history of the Act. The growing concentration of natural gas pipelines had led to traditional abuses associated with monopoly power—limitation of supply, discriminatory pricing, and barriers to entry. Hearing on H.R. 4008 before the House Committee on Interstate and Foreign Commerce, 75th Cong., 1st Sess., 47, 70—73, 89—91, 101—103 (1937). The States first proved incapable of combating these foreign corporations, id., at 50, 93, and then were barred by decisions of this Court holding that such regulation violated the Interstate Commerce Clause. See, e.g., People's Natural Gas Co. v. Public Service Comm., 270 U.S. 550, 46 S.Ct. 371, 70 L.Ed. 726 (1926).
Congress' response was to take over where the States' power ceased, following the chain of distribution back into the interstate market, and it quite naturally used a public utility model. But, once begun, prevention of the circumvention of such regulation virtually compelled extension of control to the source.
Although the debate continues today as to whether the production of natural gas is, or has the potential to be, competitive, compare Diener, Area Price Regulation in the Natural Gas Industry of Southern Louisiana, 46 Tul.L.Rev. 695 (1972) (not competitive), with Breyer & MacAvoy, The Natural Gas Shortage and the Regulation of Natural Gas Producers, 86 Harv.L.Rev. 941 (1973) (competitive), revision of the regulation required by the Act is a matter for consideration by the Congress, not by this Court. See FPC v. Texaco, 417 U.S. 380, at 400—401, 94 S.Ct. 2315, at 2327 2328, 41 L.Ed.2d 141.
24
Prior to the Phillips case there were fewer than 200 pipeline companies subject to Commission regulation. Statement of General Policy No. 61—1, 24 F.P.C. 818 (1960). Immediately prior to passage of the Act, four holding company groups controlled over 55% of the Nation's pipeline mileage. Hearings on H.R. 11662 before a Subcommittee of the House Committee on Interstate and Foreign Commerce, 74th Cong., 2d Sess., 12, 52 (1936).
25
See Phillips Petroleum Co., 24 F.P.C. 537, 542 (1960).
26
Section 717a provides:
'When used in this chapter, unless the context otherwise requires—
'(6) 'Natural-gas company' means a person engaged in the transportation of natural gas in interstate commerce, or the sale in interstate commerce of such gas for resale.'
27
See Phillips Petroleum Co., supra, at 542.
28
Various statistics presented by the Commission in its Phillips opinion on remand indicated a total of 3,372 independent producers with rates on file and an estimated backlog so large that, if the staff of the Commission were tripled, it would take over 82 years to reach current status. 24 F.P.C., at 545—546.
29
Statement of General Policy No. 61—1, 24 F.P.C. 818 (1960).
30
Ibid.
31
See Opinion No. 598, 46 F.P.C., at 112—114 (American Gas Association, Committee on Natural Gas Reserves, Annual Reports).
32
See, e.g., Kitch, supra, n. 22, at 276—280. See also Permian Basin, 390 U.S., at 816—817, 88 S.Ct., at 1385—1386.
33
See n. 3, supra.
34
Statement of General Policy No. 61—1, supra.
35
Permian Basin, supra, at 759—760, 88 S.Ct., at 1355—1356.
36
Id., at 761, 88 S.Ct., at 1356.
37
Ibid.; cf. infra, at 329—330.
38
The Commission has raised the rate of return to 15% in the instant case. 46 F.P.C., at 131.
39
Cf. ibid.
40
Cf. ibid.
41
See 46 F.P.C., at 143: 'The maximum standard will be 1050 Btu's per cubic foot of gas, . . . and the minimum standard will be 1000 Btu's per cubic foot of gas.' Adjustments outside this range are to be on a proportional basis. This was the standard used in Permian Basin, see 390 U.S., at 762—763, 88 S.Ct., at 1357 1358.
42
Id., at 770—771, 88 S.Ct., at 1361—1362.
43
Indeed, in addition to its general approval of such an approach, see 390 U.S., at 814—815, 88 S.Ct., at 1384, 1385, the Court in Permian Basin listed each of the noncost factors used by the Commission and approved them. See id., at 815 n. 98, 88 S.Ct., at 1385.
44
Section 19(b), 15 U.S.C. § 717r(b), states:
'(b) 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, by filing in such court, within sixth days after the order of the Commission upon the application for rehearing, a written petition praying that the order of the Commission be modified or set aside in whole or in part. . . . Upon the filing of such petition such court shall have jurisdiction, while upon the filing of the record with it shall be exclusive, to affirm, modify, or set aside such order in whole or in part. . . . The finding of the Commission as to the facts, if supported by substantial evidence, shall be conclusive. . . . The judgment and decree of the court, affirming, modifying, or setting aside, in whole or in part, any such order of the Commission, shall be final, subject to review by the Supreme Court of the United States upon certiorari . . ..'
45
New York asserts (Brief 17—18) that the Court of Appeals 'does not sit as a court of equity in reviewing actions of an administrative agency . . ..' We agree with and adopt the Commission's answer to that contention, Brief for Federal Power Commission 24 n. 20: 'But the case it cites for that proposition, Federal Radio Commission v. General Electric Co., 281 U.S. 464 (50 S.Ct. 389, 74 L.Ed. 969), is wholly inapposite. The issue there was whether (the Supreme) Court had jurisdiction to review a decision of the Court of Appeals for the District of Columbia setting aside an order of the Federal Radio Commission. (The) Court held that it did not have jurisdiction, because under the pertinent statute the court of appeals, as a legislative court, was in effect 'a superior and revising agency' (281 U.S., at 467 (50 S.Ct., at 390)). The proceeding in the court of appeals thus 'was not a case or controversy in the sense of the judiciary article, but was an administrative proceeding, and therefore . . . the decision therein is not reviewable by (the Supreme) Court' (id., at 470 (50 S.Ct., at 391)).
'(The Supreme) Court's statement that the court of appeals in such cases does not exercise 'ordinary jurisdiction at law or in equity' (id., at 468 (50 S.Ct., at 390)) refers only to that court's former special role as a legislative court. It does not mean, as New York mistakenly infers, that reviewing courts exercising judicial rather than administrative jurisdiction do not sit as courts of equity. As (that) Court stated, the jurisdiction of reviewing courts under statutes similar to the Natural Gas Act is 'quite unlike the jurisdiction exercised on appeals from the Radio Commission' (id., at 470 (50 S.Ct., at 391)).'
46
Title 18 CFR § 1.18(a) provides:
'(a) To adjust or settle proceedings. In order to provide opportunity for the submission and consideration of facts, arguments, offers of settlement, or proposals of adjustment, for settlement of a proceeding, or any of the issues therein, or consideration of means by which the conduct of the hearing may be facilitated and the disposition of the proceeding expedited, conferences between the parties to the proceeding and staff for such purposes may be held at any time prior to or during such hearings before the Commission or the officer designated to preside thereat as time, the nature of the proceeding, and the public interest may permit.'
47
See text accompanying nn. 7—8, supra.
48
The Appendix filed in this Court, and containing only those portions of the record designated by the parties, includes over 800 pages of testimony and over 300 pages of exhibits from the reopened proceedings. We note that four different cost studies were presented. These studies estimated costs of production ranging from 18.2¢ to 24.03¢ per Mcf for gas flowing under contracts dated prior to October 1, 1968. With respect to gas sold under contracts dated on or after October 1, 1968, the cost estimates based on a 1969 test year ranged from 19.39¢ to 38.02¢. The rates ultimately fixed by the Commission, even including incentive increments, were within the range of cost estimates.
49
See Permian Basin, 390 U.S., at 769—770, 88 S.Ct., at 1361—1362. We said there:
'(T)he just and reasonable standard of the Natural Gas Act 'coincides' with the applicable constitutional standards, FPC v. Natural Gas Pipeline Co., (315 U.S. 575,) at 586, (62 S.Ct. 736,) at 743, and any rate selected by the Commission from the broad zone of reasonableness permitted by the Act cannot properly be attached as confiscatory.' Id., at 770, 88 S.Ct., at 1361.
The Court then refused to invalidate, without reference to particular cases, a Commission plan to provide "appropriate relief' if (a producer) establishes that its 'out-of-pocket expenses in connection with the operation of a particular well' exceed its revenue from the well under the applicable area price.' Id., at 770—771, 88 S.Ct., at 1362.
50
See n. 48, supra. The evidence is set out at length and discussed in 46 F.P.C., at 110—123.
51
This is well exemplified by the problems arising from the fact that many costs are jointly incurred in the production of oil, gas, and other hydrocarbons. One witness testified that any number of accounting methods may be used to allocate such costs, and listed 10 of them. 4 App. 635—637. He further testified that these methods would produce a widely varying range of results, and that a choice of one of them was largely a matter of preference. The Commission's determination to use a 'modified Btu' approach, whereby a Btu of natural gas is assumed to be 'worth' only a selected fraction of a Btu of oil, is a policy choice having significant consequences for the industry. The same witness testified that switching from the Commission's assumption in its 1968 opinion that a Btu of oil is worth 3.5 times a Btu of natural gas to a 2.34 factor would make several cents' difference in the ceiling rates. Id., at 550. An assumption of equality would thus appear likely to have a large impact. Yet no market price comparison of the values of oil and gas is available for the interstate market since the Commission sets the price of natural gas.
Moreover, another witness testified that, since natural gas competes with oil in many markets, producers of both harm themselves when they expand their production of natural gas under the restraint of price ceilings. Id., at 476—481. Cf. n. 23, supra.
52
46 F.P.C., at 121.
53
See Permian Basin, 390 U.S., at 815 n. 98, 88 S.Ct., at 1385. With the introduction of the formula used in this case, the Commission stated:
'Adjustment for Exploration in Excess of Production. This adjustment was designed, in prior cases, to continue to provide findings in excess of production. At the present time, findings of nonassociated gas are substantially less than production . . .. As we indicated in Texas Gulf Coast, our concept of economic costing includes the costs of eliciting the required exploratory and drilling effort. Thus, there is no reason to consider special allowance categories.' 46 F.P.C., at 133.
54
See 5 App. 266e.
55
In its opinion on rehearing the Commission stated, 46 F.P.C., at 636—637:
'We note, again, that the Btu content of casinghead and gas-well gas is about the same, and the record shows that substantial volumes of casinghead gas are being flared in Southern Louisiana—reason in itself for eliminating the price discrimination.'
| 78
|
417 U.S. 333
94 S.Ct. 2298
41 L.Ed.2d 109
Joseph Anthony DAVIS, Petitioner,v.UNITED STATES.
No. 72—1454.
Argued Feb. 26, 1974.
Decided June 10, 1974.
Syllabus
After being declared a delinquent, petitioner was ordered to report for induction pursuant to Selective Service regulations, which permitted the ordering of a declared delinquent to report for induction even though he had not been found acceptable for military service. When petitioner did not report as ordered, he was prosecuted and convicted for failure to report for induction. Following a remand by the Court of Appeals for reconsideration in the light of the intervening decision of this Court in Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532, the District Court concluded that Gutknecht did not affect the conviction, and the Court of Appeals affirmed. While petitioner's petition for certiorari was pending in this Court, the Court of Appeals decided United States v. Fox, 454 F.2d 593, wherein, on the authority of Gutknecht, that court reversed a conviction based on facts virtually identical to those on which petitioner's conviction was based. This Court subsequently denied certiorari in the petitioner's case. After beginning his sentence, petitioner brought this collateral proceeding under 28 U.S.C. § 2255, asserting that the Court of Appeals in the Fox case had effected a change in the law of the Ninth Circuit after affirmance of his conviction and that the holding in Fox required that his conviction be set aside. The District Court summarily denied relief. The Court of Appeals affirmed on the ground that because petitioner had unsuccessfully litigated the Gutknecht issue on direct review, the court's earlier affirmance was 'the law of the case' and precluded petitioner from securing relief under § 2255 on the basis of an intervening change in law. Held:
1. Even though the legal issue raised in a prior direct appeal from petitioner's conviction was determined against petitioner, he is not precluded from raising the issue in a § 2255 proceeding 'if new law has been made . . . since the trial and appeal.' Kaufman v. United States, 394 U.S. 217, 230, 89 S.Ct. 1068, 1076, 22 L.Ed.2d 227. Pp. 341—342.
2. The fact that petitioner's claim is grounded 'in the laws of the United States' rather than in the Constitution does not preclude its assertion in a § 2255 proceeding, particularly since § 2255 permits a federal prisoner to assert a claim that his confinement is 'in violation of the Constitution or laws of the United States.' Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982, distinguished. Pp. 346—347.
3. The issue that petitioner raises is cognizable in a § 2255 proceeding. Pp. 346—347.
472 F.2d 596, reversed and remanded.
Marvin M. Karpatkin, New York City, for petitioner.
Edmund W. Kitch, Chicago, Ill., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
This case involves the availability of collateral relief from a federal criminal conviction based upon an intervening change in substantive law. While the question presented is a relatively narrow one, it arises as the result of a rather complicated chain of events.
2
* In February 1965, the petitioner, Joseph Anthony Davis, was classified I—A by his draft board and ordered to report for a pre-induction physical examination. Davis failed to appear on the appointed date. He later informed his local board that his failure to report was due to illness. Although the board attempted to arrange a second date for the pre-induction physical, its attempts to communicate with the petitioner were frustrated by his failure to keep the board apprised of his correct mailing addresses. As a result, the local board's communications to the petitioner were returned to the board stamped 'addressee unknown,' and Davis again failed to report for the physical. In December 1965, the board sent the petitioner a warning that it was considering declaring him a delinquent because of his failure to report for the second pre-induction physical.1 This communication was also returned to the board stamped 'addressee unknown.'
3
After another unsuccessful attempt to communicate with the petitioner, the local board declared him a delinquent, pursuant to 32 CFR § 1642.4(a) (1967),2 both because of his failure to report for the second pre-induction physical and because of his failure to keep the local board informed of his current address.3 At the same time the board mailed the petitioner a delinquency notice. Shortly after the delinquency declaration, the board sent the petitioner an order directing him to report for induction into the Armed Forces. Once again, the order was returned to the board stamped 'addressee unknown.' Several months later, the board sent the petitioner a second order to report for induction. This time the order was mailed to a St. Paul, Minnesota, address that Davis had used when requesting a duplicate draft card. Although there was no indication that Davis did not receive the induction order, he once again failed to report as ordered. This second failure to report for induction resulted in the petitioner's prosecution and conviction under 50 U.S.C.App. § 462(a).4
4
At the time that the local board issued the second induction order, 32 CFR § 1631.7(a) (1967) provided that registrants could be ordered to report for induction only after they '(had) been found acceptable for service in the Armed Forces and . . . the local board (had) mailed (them) a Statement of Acceptability . . . at least 21 days before the date fixed for induction.' Since, at the time of his induction order, Davis had not yet appeared for a physical examination to determine his acceptability, quite obviously neither one of these requirements was satisfied. The regulation, however, went on to provide that 'a registrant classified in Class I—A or Class I—A—O who is a delinquent may be selected and ordered to report for induction to fill an induction call notwithstanding the fact that he has not been found acceptable for service in the Armed Forces and has not been mailed a Statement of Acceptability . . ..' The only other registrants similarly excepted from these prerequisites were those who had volunteered for induction. In light of this proviso, the local board evidently concluded that the preconditions to induction stated in § 1631.7(a) were inapplicable to the petitioner, whom it had earlier declared to be a delinquent, and that it was thus free to issue an induction order to the petitioner.5
5
Davis appealed his conviction to the Court of Appeals for the Ninth Circuit. While that appeal was pending, this Court announced its decision in Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532 (1970). In Gutknecht a Selective Service registrant's induction had been accelerated because his local board had declared him a delinquent.6 When he failed to report for induction as ordered, he was prosecuted and convicted under 50 U.S.C.App. § 462. The delinquent registrant's accelerated induction was ordered in accordance with another portion of 32 CFR § 1631.7(a) that, like the provision applicable to Davis, called for exceptional treatment for registrants whom a local board had declared delinquent. Local boards were authorized by 32 CFR § 1642.4 to issue a declaration of delinquency '(w)henever a registrant . . . failed to perform any duty or duties required of him under the selective service law,' other than to report as ordered for induction or for civilian work. Both Davis and Gutknecht were declared delinquent on the authority of § 1642.4.7 In Gutknecht, the Court held that the Selective Service regulations that accelerated the induction of delinquent registrants by shifting them to the first priority in the order of call were punitive in nature and, as such, were without legislative sanction.8 Accordingly, the Court concluded that the registrant could not be prosecuted for failure to comply with an induction order issued pursuant to these regulations.
6
After Gutknecht, the Court of Appeals remanded the petitioner's case to the District Court 'without limitation of scope but especially for consideration . . . in the light of the intervening decision of Gutknecht v. United States.' 432 F.2d 1009, 1010 (1970). On remand, the District Court, after conducting a hearing, concluded that the petitioner's induction had not been accelerated because of his delinquency status and that Gutknecht therefore did not affect his conviction.9 On appeal, the Court of Appeals affirmed. 447 F.2d 1376.
7
While Davis' subsequent petition for certiorari was pending in this Court, the Court of Appeals for the Ninth Circuit decided United States v. Fox, 454 F.2d 593. The circumstances leading to Fox's induction order were virtually identical to those in the petitioner's case. Like Davis, 'Fox was declared delinquent by his Selective Service Board . . . for his failure to appear for pre-induction physical examinations as ordered . . ..' Ibid. Prior to receiving his induction order, 'Fox . . . was never found to be 'acceptable for service' and he was (not) mailed a Statement of Acceptability . . . at least 21 days before his induction date . . ..' '(T)hus the only authority the Local Board had for its order to Fox to report for induction was the provision of § 1631.7(b)10 for delinquents to be called without a previous finding of acceptability or the mailing of a Statement of Acceptability 21 days before induction.' Id., at 595. This was the same regulation on which the board's induction order to Davis had been preducated.
8
At Fox's post-Gutknecht trial for failure to report for induction, 'the government offered evidence . . . to show that Fox's induction order was not accelerated by the declaration of delinquency.' 'The trial judge found no acceleration and convicted.' Id., at 593—594. The Court of Appeals reversed Fox's conviction on the authority of Gutknecht. The court held that Fox's induction was accelerated by the declaration of delinquency as a matter of law (because) (w)ithout the declaration, the Board could not have ordered him to report for induction.' Id., at 594. Thus, the court concluded 'that the (induction) order . . . was illegal and created no duty on Fox's part to report for induction.' Id., at 595.
9
In opposing Davis' petition for certiorari, the Solicitor General Conceded that 'the holdings in Fox and in (Davis) are inconsistent,' but nevertheless urged the Court to deny certiorari in that 'the conflict is an intra-circuit one . . . (to) be resolved by the Ninth Circuit itself . . ..' Supplemental Memorandum for the United States in Opposition 2 (No. 71—661, O.T.1971). We denied Davis' petition for certiorari. 405 U.S. 933, 92 S.Ct. 939, 30 L.Ed.2d 809.
10
After an unsuccessful attempt to secure a rehearing in the Court of Appeals, Davis was remitted to federal custody to commence serving his three-year sentence. He then instituted the present collateral proceeding under 28 U.S.C. § 2255, which permits '(a) prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . (to) move the court which imposed the sentence to vacate, set aside or correct the sentence.' In his § 2255 motion, Davis asserted that the Court of Appeals for the Ninth Circuit had in the Fox case effected a change in the law of that Circuit after the affirmance of his conviction, and that its holding in Fox required his conviction to be set aside. The District Court summarily denied the petitioner's motion.11 On appeal, the Court of Appeals affirmed without considering the merits of the petitioner's claim on the ground that '(t)he decision on the direct appeal is the law of the case,' and that therefore any 'new law, or change in law' resulting from its decision in United States v. Fox would 'not (be) applied in this circuit under circumstances such as here presented.' 472 F.2d 596. Because the case presents a seemingly important question concerning the extent to which relief under 28 U.S.C. § 2255 is available by reason of an intervening change in law, we granted certiorari. 414 U.S. 999, 94 S.Ct. 351, 38 L.Ed.2d 234.
II
11
The sole issue before the Court in the present posture of this case is the propriety of the Court of Appeals' judgment that a change in the law of that Circuit after the petitioner's conviction may not be successfully asserted by him in a § 2255 proceeding.12 Thus, our inquiry is confined to the availability of a § 2255 proceeding for the resolution of Davis' claim to relief from his conviction.
12
Because the petitioner had unsuccessfully litigated the Gutknecht issue on direct review, the Court of Appeals held that its earlier affirmance was 'the law of the case' and precluded the petitioner from asserting on collateral attack his claim that its Fox decision had subsequently changed the law of the Ninth Circuit on that issue. In this Court, the Solicitor General's brief concedes that the opinion of the Court of Appeals in this regard 'is not consonant with this Court's holding in Sanders v. United States, 373 U.S. 1 (83 S.Ct. 1068, 10 L.Ed.2d 148).13 In Sanders, the Court held inter alia, that even though the legal issue raised in a § 2255 motion 'was determined against (the applicant) on the merits on a prior application,' 'the applicant may (nevertheless) be entitled to a new hearing upon showing an intervening change in the law . . ..' Sanders v. United States, 373 U.S. 1, 17, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148. The same rule applies when the prior determination was made on direct appeal from the applicant's conviction, instead of in an earlier § 2255 proceeding, 'if new law has been made . . . since the trial and appeal.' Kaufman v. United States, 394 U.S. 217, 230, 89 S.Ct. 1068, 1076, 22 L.Ed.2d 227 (1969). Thus, the Court of Appeals erred in holding that 'the law of the case,' as determined in the earlier appeal from the petitioner's conviction, precluded him from securing relief under § 2255 on the basis of an intervening change in law.
13
Nevertheless, the Solicitor General contends that we should affirm the judgment of the Court of Appeals because the petitioner's claim is not 'of constitutional dimension' (Brief for United States 34) and thus is not cognizable in a § 2255 collateral proceeding. At the outset, we note that the Government's position finds scant support in the text of § 2255, which permits a federal prisoner to assert a claim that his confinement is 'in violation of the Constitution or laws of the United States.' (Emphasis added.)
14
It is argued forcefully in a dissenting opinion today that this language, which appears in the first paragraph of § 2255, is somehow qualified by the third paragraph of the statute, which provides:
15
'If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.'
16
The dissent of Mr. Justice REHNQUIST rejects any suggestion that the language concerning 'sentence(s) . . . otherwise open to collateral attack' can encompass a claim that a confinement under that sentence violates the 'laws of the United States,' contending that this would reduce the remaining language regarding 'a denial or infringement of constitutional rights' to surplusage. Indeed, the nub of the dissent is that § 2255 'does not speak of an illegal 'confinement' . . . or even of an illegal conviction, but rather of illegal sentences.' Post, at 2309. (Emphasis in original.) Although this microscopic analysis of § 2255 surely shows that the statutory language is somewhat lacking in precision, the resulting shadow that the dissenting opinion would cast over the statute totally disappears in the light of its legislative history.
17
That history makes clear that § 2255 was intended to afford federal prisoners a remedy identical in scope to federal habeas corpus. As the Court pointed out in United States v. Hayman, 342 U.S. 205, 219, 72 S.Ct. 263, 272, 96 L.Ed. 232 (1952), the 'history of Section 2255 shows that it was passed at the instance of the Judicial Conference to meet practical difficulties that had arisen in administering the habeas corpus jurisdiction of the federal courts. Nowhere in the history of Section 2255 do we find any purpose to impinge upon prisoners' rights of collateral attack upon their convictions. On the contrary, the sole purpose was to minimize the difficulties encountered in habeas corpus hearings by affording the same rights in another and more convenient forum.' Thus, there can be no doubt that the grounds for relief under § 2255 are equivalent to those encompassed by § 2254, the general federal habeas corpus statute, under which relief is available on the ground that '(a person) is in custody in violation of the Constitution or laws or treaties of the United States.' (Emphasis added.) Furthermore, although the dissent of Mr. Justice REHNQUIST derides the view that the words 'otherwise open to collateral attack' are intended to be 'a catch-all phrase,' post, at 358, the legislative history fully supports that view. In recommending to Congress what eventually became § 2255, the Judicial Conference Committee on Habeas Corpus Procedure stated that '(t)he motion remedy broadly covers all situations where the sentence is 'open to collateral attack.' As a remedy, it is intended to be as broad as habeas corpus.'14
18
No miscroscopic reading of § 2255 can escape either the clear and simple language of § 2254 authorizing habeas corpus relief 'on the ground that (the prisoner) is in custody in violation of the . . . laws . . . of the United States' or the unambiguous legislative history showing that § 2255 was intended to mirror § 2254 in operative effect. Thus, we cannot agree that the third paragraph of § 2255 was in any fashion designed to mark a retreat from the clear statement that § 2255 encompasses a prisoner's claim of 'the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States.' Accordingly, we conclude that the text of the statute cannot sustain the Government's position that only claims 'of constitutional dimension' are cognizable under § 2255.
19
Moreover, there is no support in the prior holdings of this Court for the proposition that a claim is not cognizable under § 2255 merely because it is grounded in the 'laws of the United States' rather than the Constitution. It is true, of course, that in Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947), the Court held that the nonconstitutional claim in that case could not be asserted to set aside a conviction on collateral attack. But Sunal was merely an example of 'the general rule . . . that the writ of habeas corpus will not be allowed to do service for an appeal.' Id., at 178, 67 S.Ct., at 1950. 'Appeals could have been taken in these cases, but they were not.' Id., at 177, 67 S.Ct., at 1590. The Court was careful to point out that 'if Sunal and Kulick had pursued the appellate course and failed, their cases would be quite different. But since they chose not to pursue the remedy which they had, we do not think they should now be allowed to justify their failure by saying they deemed any appeal futile.' Id., at 181, 67 S.Ct., at 1592. Moreover, '(t)he case (was) not one where the law was changed after the time for appeal had expired.' Ibid. Thus, Sunal cannot be read to stand for the broad proposition that nonconstitutional claims can never be asserted in collateral attacks upon criminal convictions.15 Rather, the implication would seem to be that, absent the particular considerations regarded as dispositive in that case, the fact that a contention is grounded not in the Constitution, but in the 'laws of the United States' would not preclude its assertion in a § 2255 proceeding.
20
This is not to say, however, that every asserted error of law can be raised stitution, but in the 'laws of the United States, 368 U.S. 424, 429, 82 S.Ct. 468, 472, 7 L.Ed.2d 417 (1962), for example, we held that 'collateral relief is not available when all that is shown is a failure to comply with the formal requirements' of a rule of criminal procedure in the absence of any indication that the defendant was prejudiced by the asserted technical error. We suggested that the appropriate inquiry was whether the claimed error of law was 'a fundamental defect which inherently results in a complete miscarriage of justice,' and whether '(i)t . . . present(s) exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.' Id., at 428, 82 S.Ct., at 471 (internal quotation marks omitted). The Court did not suggest that any line could be drawn on the basis of whether the claim had its source in the Constitution or in the 'laws of the United States.'
21
In this case, the petitioner's contention is that the decision in Gutknecht v. United States, as interpreted and applied by the Court of Appeals for the Ninth Circuit in the Fox case after his conviction was affirmed, establishes that his induction order was invalid under the Selective Service Act and that he could not be lawfully convicted for failure to comply with that order. If this contention is well taken, then Davis' conviction and punishment are for an act that the law does not make criminal. There can be no room for doubt that such a circumstance 'inherently results in a complete miscarriage of justice' and 'present(s) exceptional circumstances' that justify collateral relief under § 2255. Therefore, although we express no view on the merits of the petitioner's claim, we hold that the issue he raises is cognizable in a § 2255 proceeding.
22
The judgment of the Court of Appeals is accordingly reversed and the case is remanded for further proceedings consistent with this opinion.
23
It is so ordered.
24
Judgment of Court of Appeals reversed and case remanded.
25
Mr. Justice POWELL, concurring in part and dissenting in part.
26
I agree with the Court's holding that review under 28 U.S.C. § 2255 is available to petitioner, due to the intervening change in the law of the Circuit. But I would dispose of the case finally, not remand it.
27
Petitioner's case turns on whether his conviction for refusing induction has been invalidated by Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532 (1970). Both parties have raised, briefed and argued this issue, and it is properly before us. We should, in the interest of judicial economy if for no other reason, decide the Gutknecht issue and bring to an end this lengthy litigation, rather than remand it to the Court of Appeals for that court's fourth round of consideration.
28
In my view, petitioner's reliance upon Gutknecht is misplaced. Petitioner reads Gutknecht as invalidating the former delinquency regulations of the Selective Service System in every possible application.1 He espouses a per se rule under which any induction order that derived from an application of those delinquency regulations is illegal. Gutknecht does not have such a broad sweep.
29
In Gutknecht, the registrant was declared a delinquent for failing to retain his registration and classification papers in his possession at all times. He had surrendered these papers in an act of protect against the Vietnam conflict. As a consequence of the delinquency declaration, he was rushed—indeed it might be said railroaded—to induction. The entire process lasted less than two months, and Gutknecht was issued an induction order on the day after Christmas, only six days after he had been declared a delinquent. He was deprived of his standing in the order of call and was truly 'accelerated' in that he was ordered to induction prior to the date on which he would have been called if treated in the normal manner. Gutknecht, in essence, was caught upon the tide of punitive actions by the Selective Service System in the late 1960's against those who were thought to be avading military service because of opposition to the Vietnam conflict.
30
The Court's opinion in Gutknecht repeatedly refers to this deliberately punitive attitude of the Service and its use of the then prevailing delinquency regulations as a means, short of criminal prosecution, for dealing with such persons. See, e.g., 396 U.S., at 306—308, 90 S.Ct., at 511—512. But I do not read Gutknecht as overturning the former delinquency regulations in all circumstances, or as depriving boards of a reasonable and effective alternative procedure for dealing with recalcitrant registrants who plainly were seeking to avoid military service. If the stated rationale of the holding in Guknecht is accepted, that case invalidated those regulations only insofar as they were applied punitively to advance the date of a registrant's induction or to deprive him of procedural rights, that he had not waived. See United States v. Dobie, 444 F.2d 417 (CA4 1971). The reasons relied upon by the Court in Gutknecht and in the concurring opinion of Mr. Justice Stewart, 396 U.S., at 314, 90 S.Ct., at 515, are incompatible with a per se rule proscribing all board authority to order an evasive registrant to report for induction. Thus, in my view, United States v. Fox, 454 F.2d 593 (CA9 1971), on which Davis relies, was incorrectly decided.
31
In the instant case it is undisputed that Davis was not, as a result of being declared delinquent, ordered to report for induction at a point in time prior to the normal order of his call. Indeed, due to the board's patient efforts to deal with Davis' repeated attempts to obstruct the induction process, Davis was ordered to report for induction some seven months later than would have been the case if the process had been allowed to function normally. There is no hint of vindictiveness or of an attempt to punish Davis.
32
The only impact on Davis of being declared delinquent, other than a delay in the issuance of an order to report for induction, was that the declaration of delinquency permitted the board under then prevailing regulations to issue an induction order in the absence of a pre-induction physical examination and of the resulting form letter notifying Davis of his acceptability for service.2 Davis attempts to portray these preconditions on induction as significant procedural rights of which he was unfairly deprived by the board. The argument is frivolous. Davis frustrated every effort of the board over a period of more than two years to accord him the right to a physical examination. Thus he waived the procedural rights on which he now seeks to rely. Moreover, he would have received such an examination in any event if he had reported for induction. And the form notifying a registrant of acceptability for service is hardly a matter of major moment, particularly to one who had long been on notice of the pendency of an induction order.
33
On the record in this case, no one could seriously contend that Davis was the victim of punitive action or that he was not treated with tolerance and forbearance. In my view, the Court in Gutknecht could hardly have intended to invalidate an induction order in such circumstances.
34
I would affirm the judgment.
35
Mr. Justice REHNQUIST, dissenting.
36
The Court today holds, with a minimum of discussion, that petitioner, in a proceeding under 28 U.S.C. § 2255, may rise his claim that his induction into the Armed Forces was accelerated contrary to the principles of Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532 (1970). The Court reaches this result despite the fact that a United States District Court and the Court of Appeals for the Ninth Circuit previously considered this contention in light of Gutknecht and concluded that petitioner's induction had not in fact been accelerated. As a justification for the decision this Court suggests that a § 2255 motion is both permissible and appropriate because a panel of the Court of Appeals for the Ninth Circuit has rendered a subsequent decision which adopts a new legal test for determining whether acceleration has occurred and which, if applied to petitioner, would probably change the outcome of his case. Since I believe the Court's decision is justified neither by the language of § 2255 itself nor by any prior case decided by this Court, and since I believe the potential consequences of the decision are harmful to the administration of justice, I dissent.
37
* The Court's conclusion, discussed infra, that claims such as petitioner's can be raised on a § 2255 motion, is actually unnecessary for the disposition of this case. The decisions of the District Court and the Court of Appeals rested entirely on application of a 'law of the case' theory, a position that the Government now disavows and that the Court disposes of in a single paragraph. The petitioner in his petition for certiorari and in his brief on the merits principally addressed that issue and his sole rebuttal of the Government's contention that nonconstitutional attacks on judgments of conviction are not cognizable in § 2255 proceedings is contained in his reply brief where he devotes one paragraph to arguing that his claim is constitutional. Thus the Court reaches out to decide a highly important issue without the benefit of lower court attention to the question, without full briefing, and, in my view, without full examination of the issues involved. It would seem preferable to remand this case, as the Court does anyway, without deciding this issue, allowing further consideration of the question below and leaving our venture into this area for a more appropriate occasion. Since the Court declines to do so, however, I will also address the broader question to which the Court proceeds.
II
38
The facts of this case are set out in detail in the Court's opinion. I review them here briefly only to emphasize the extent of both administrative and judicial consideration which petitioner has received. A mere recounting of the facts dispels the notion that there are any equities whatever in support of petitioner's claim for relief.
39
Petitioner's difficulties with the Selective Service System began in February of 1965 when he was classified I—A by his local draft board. At that time he was ordered to report for a pre-induction physical examination, but did not appear on the specified date. The board then attempted to schedule another physical but was frustrated by petitioner's failure to advise the board of his whereabouts. At this point the board warned petitioner that he was in danger of being declared a delinquent, but this warning was also returned with the notation 'addressee unknown.'
40
The board made one more unsuccessful attempt to communicate with petitioner and then declared him a delinquent according to the regulations then in effect.1 After a brief interval the board then mailed petitioner, not a third notice to report for a physical examination, but rather a notice to report for induction. This order having been returned stamped 'addressee unknown,' the board followed up by sending petitioner a second notice to report for induction which he apparently received. He did not report, however, and was then prosecuted for this refusal.
41
All parties to this case concede that Selective Service registrants who are not declared delinquents are not mailed orders of induction before they have taken a physical examination. Without the delinquency classification, which allowed the board to issue an induction order without having given a physical examination, the board would have been faced with one of two alternatives. It could have prosecuted the petitioner for failure to take the physical examination or, alternatively, it could have continued the obviously futile mailing of additional notices concerning the physical. The delinquency procedure enabled the board to bypass those two undesirable options, and, in effect, provided for a temporary waiver of the examination until the time stated in the induction order. It should be noted that this procedure does not allow the board to induct anyone without a physical examination; rather it simply allows the board to call persons for induction prior to the time an examination is given.2
42
Having been convicted in the District Court, petitioner took a direct appeal to the Court of Appeals for the Ninth Circuit. While the appeal was pending in that court, however, this Court decided Gutknecht, and the Court of Appeals then remanded the case to the District Court for further consideration in light of our decision. On remand, the District Court decided that Gutknecht did not apply because petitioner's induction had not in fact been accelerated.3 The court also found that '(d)efendant's substantial rights were not prejudiced by the Local Board's ordering him to report for induction without first giving him a physical examination and sending him a Notice of Acceptability,'4 because '(t)he failure to give such an examination and such Notice of Acceptability were (sic) caused by defendant's own failure to report for physical examination on October 8, 1965, as ordered.'5 The Court of Appeals agreed that Gutknecht did not control this case and affirmed.6 We denied certiorari.7
43
Although one might have supposed the proceedings to be closed at this point, our denial of certiorari marked only the end of phase one. For petitioner, having failed on his direct attack, then sought relief under 28 U.S.C. § 2255, presenting the same claims of acceleration which had previously been rejected. The principal basis for petitioner's motion was that the law of the Ninth Circuit, unfavorable to him at the time of his conviction and appeal, had subsequently been charged in United States v. Fox, 454 F.2d 593 (1971). The District Court denied relief without comment, and the Court of Appeals again affirmed.8 Stating that '(t)he decision on the direct appeal is the law of the case,'9 that court also noted specifically 'that Fox does not even suggest overruling Davis,'10 and further that 'the new law, or change in law, rule is not applied in this circuit under circumstances such as here presented. Odom v. United States, supra (9 Cir., 455 F.2d 159).'11 Again one would suppose that the dispute had reached its end, but this Court today decrees otherwise, remanding it for yet more consideration by the courts below.
III
44
For reasons that I frankly do not understand, the Court seems to believe that the question of whether claims such as petitioner's may be raised in a motion under § 2255 is either largely settled by § 2255 itself and by earlier decisions of this Court or, perhaps, is too inconsequential to require extended treatment. Neither premise is sound. Both the language of § 2255 and the case law of this Court suggest that the issue is very much in doubt, and the potential consequences of the decision suggest that the matter calls for serious and careful consideration.
45
In deciding whether claims of this type may be raised in a § 2255 motion, the logical starting place is the statute itself. The Court's opinion, however, gives the statute only a passing nod, apparently believing that ambiguity is best resolved by ignoring the source from which it arises. I believe the statute and the Court's treatment of it require a closer look.
46
The Court begins its discussion of the statute by stating: 'At the outset, we note that the Government's position finds scant support in the text of § 2255, which permits a federal prisoner to assert a claim that his confinement is 'in violation of the Constitution or laws of the United States."12 (Emphasis in Court's opinion.) The language quoted by the Court is taken from the first paragraph of § 2255 which reads: sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.'
47
That paragraph, however, does not speak of an illegal 'confinement,' as suggested by the Court, or even an illegal conviction, but rather of illegal sentences. Furthermore, the paragraph is concerned only with motions for relief, not with the Court's power to grant relief. The power to grant relief is instead governed by the more specific provisions of paragraph three of the statute.
48
The language of paragraph three differs quite strikingly from the language quoted above. After providing for notice and a hearing in appropriate cases, the paragraph continues:
49
'If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.'
50
This language certainly makes less clear the intended scope of paragraph one, since, contrary to the emphasis on 'sentence' in the earlier paragraph, the provisions of paragraph three mention 'sentence' which may be set aside only twice, and then in connection with those 'not authorized by law or otherwise open to collateral attack . . ..'13 More importantly, the paragraph makes no mention of judgments rendered in violation of the laws of the United States. Rather the paragraph permits relief only where 'there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack . . ..' (Emphasis added.) Thus a disrict court may grant relief under this section only where (1) the judgment rendered was without jurisdiction; (2) the sentence was not authorized by law or is otherwise open to collateral attack; or (3) there has been such a denial of constitutional rights as to render the judgment vulnerable to collateral attack. Petitioner's case does not even arguably meet any one of these tests: the District Court clearly had jurisdiction to render a judgment of conviction; the sentence was concededly within the limits authorized by law and not otherwise vulnerable; and the Court apparently accepts the fact that petitioner has not presented a constitutional claim against the judgment. Nothing in the more generalized reference to 'laws of the United States' in the first paragraph of § 2255, therefore, can redeem petitioner's complete failure to bring himself within the operative language of the third paragraph.14
51
The Court, however, strongly suggests that its opinion could rest upon the provision of paragraph three providing relief for 'sentence(s) . . . otherwise open to collateral attack.' This suggestion only compounds the confusion. To begin with, it seems odd that the Court chooses to bypass the language of that same sentence dealing with sentences (rather than judgments) 'not authorized by law' since that language far more closely parallels the language from the first paragraph cited by the Court. But, in any event, reading words 'otherwise open to collateral attack' as simply a catch-all phrase, including any recognizable ground for upsetting convictions on direct appeal makes it difficult to see why Congress then bothered to include the separate provision allowing relief when 'there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack . . ..' The Court could not reasonably argue that this provision in intended to give additional protection to constitutional rights because the Court purports to find no distinction in the statute between constitutional and nonconstitutional attacks on judgments of conviction.
52
But assuming for the moment that the Court's approach is correct, I find a second obstacle to this decision in the definition, or lack of definition, of the word 'laws.' For though the Court seems to accept that petitioner has stated a recognizable claim that his sentence was somehow imposed in violation of the laws of the United States, the Court only briefly mentions what law the sentence is thought to be in violation of. Certainly petitioner cannot contend that where the constitution, treaties, or statutes of for refusing to report for induction is in violation of that section. Nor does he point to any other statutory provision which prohibits his incarceration for that offense. Therefore the basis for the claim, as the Court seems to believe, lies somewhere in the holdings of this Court in Gutknecht and of the Court of Appeals for the Ninth Circuit in Fox. The inclusion of either of these decisions in the category of 'laws of the United States' merits some additional attention.
53
The term 'laws of the United States' was included in § 2255 presumably to continue its traditional place in federal habeas corpus statutes.15 The Habeas Corpus Act of 1867, c. 28, 14 Stat. 385, gave federal courts the 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 . . ..' This language was carried forward in Rev.Stat. § 753 and now in 28 U.S.C. §§ 2241(c)(3) and 2254 where the word 'law' has been changed to 'laws.' He same phrasing has now been incorporated into § 2255. But the term's longevity has not brought with it a corresponding judicial elucidation. Like many other issues in the field of habeas corpus, the question seems to have been left for decision on a case-by-case basis.
54
Certainly a creditable argument could be made that the term 'laws' applies only to federal statutes, not to individual decisions of the federal courts. In 1842, for example, only 25 years before the Habeas Corpus Act was passed, this Court stated: 'In the ordinary use of language it will hardly be contended that the decisions of Courts constitute laws.' Swift v. Tyson, 16 Pet. 1, 18, 10 L.Ed. 865.16 But even if some allowance for judicial lawmaking is made, the question in this case is not settled. For, if the law be Gutknecht, then the Court's 'new law' argument immediately disappears. Petitioner had a full opportunity to argue the applicability of Gutknecht on remand from his first appeal, and both the District Court and Court of Appeals found that it was not controlling. Since that time no decision of this Court has modified Gutknecht in any way which would now bring petitioner within its scope. Thus the real focus of petitioner's argument must be that Fox is the governing law. But in that regard, I cannot see why a decision by a single panel of the Court of Appeals for the Ninth Circuit should be considered a 'law' of the United States. In fact the Court of Appeals itself stated that its decision in Fox had not overruled Davis, pointing out that an en banc decision of the Court of Appeals would be necessary for such a result. Thus the Court today categorizes as a 'law of the United Sates' a decision which is still open to question within the Court of Appeals' own jurisdiction.
55
The Court gives no indication of where this loose process of definition will end. It would certainly be surprising if a decision of the Court of Appeals for the Fourth Circuit, for example, were sufficient to give prisoners in the Ninth Circuit grounds for a $2255 motion, but it is not clear to me why a decision of the Fourth Circuit is any less a law of the United States than a decision of the Ninth Circuit. Concededly, it need not be considered binding on the Ninth Circuit, but that is not the concern under § 2255. Nor is it obvious to me what the Court would require a court of appeals to do when intracircuit conflicts arise. The decision today would seem to compel the Court to give a defendant already convicted according to one statutory interpretation the benefit of any more liberal interpretation which might emerge. This erratic process of interpretation finds no warrant in § 2255.
IV
56
The Court's lack of attention to the statutory language in this case is more than matched by the sparsity of the case law it cites. Although the Court seems to accept without question that both relief under § 2255 and habeas corpus relief have long been available to prisoners making nonconstitutional attacks on judgments of conviction, the Court cites not a single case from this Court that so holds.17 Certainly neither Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), nor Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969), the two most significant § 2255 decisions in recent years, is controlling on the important issue presented here, for both decisions involved completely different factual situations and considerations.18 Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), a third important case under § 2255 and one cited by the Court in its opinion, would seem to cut against the Court's position. In Hill the Court held that a failure to follow the requirements of Fed.Rule Crim.Proc. 32(a), a rule promulgated under the auspices of a federal statute, was not the type of error which could be raised on a § 2255 motion. The Court stated:
57
'The failure of a trial court to ask a defendant represented by an attorney whether he has anything to say before sentence is imposed is not of itself an error of the character or magnitude cognizable under a writ of habeas corpus. It is an error which is neither jurisdictional nor constitutional. It is not a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure. It does not present 'exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent." 368 U.S., at 428, 82 S.Ct., at 471. (Emphasis added; citations omitted.)
58
The only other case mentioned by the Court which might be relevant to this issue is Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947), a case like Hill in which this Court denied relief for a claim with no constitutional foundation. The Court today suggests, by stress on a negative pregnant, that the decision to deny habeas corpus relief in that case was grounded solely on the petitioner's failure to raise his claim on direct appeal and that if the issue had been properly raised, the Court would have reached a different conclusion. It is true, of course, that collateral relief is not to be employed as a substitute for an appeal, and Sunal is a leading case for that proposition. But a reading of Sunal which recognizes only the effect of failure to appeal is unnecessarily grudging. The Court in Hill, for example, although faced with a situation in which the noncompliance with Rule 32(a) was not raised on appeal, did not imply that the error could have been raised in § 2255 proceedings if an appeal had been taken. Rather the Court stated flatly: 'We hold that the failure to follow the formal requirements of Rule 32(a) is not of itself an error that can be raised by collateral attack . . ..' 368 U.S., at 426, 82 S.Ct., at 468.
59
Although the scope of relief in a habeas corpus proceeding remains largely undefined, probably out of concern that definition would introduce unwanted limitation, the judicial expansion of the federal courts' habeas power had not previously reached the type of claim asserted here. Certainly Mr. Justice Frankfurter's catalogue in Sunal, supra, 332 U.S., at 185—186, 67 S.Ct., at 1594—1595 (dissenting opinion), makes no mention of such grounds. And there is no dearth of authority to the effect that federal habeas corpus is not available merely to correct errors of law.19 Many decisions of lower federal courts have at least implicitly limited collateral relief to claims of constitutional stature.20
60
The lack of foundation from which the Court now proceeds to fashion a new, expansive collateral-relief doctrine unfortunately suggests that the Court is prepared to extend or retract, relief on the basis of whether a majority of the Court believes that a particular set of factual circumstances is 'exceptional' or that a particular litigant has raised an appealing point. Thus, the petitioner in Hill is barred from raising his claim at all in a § 2255 proceeding because failure to comply with an explicit federal rule is 'not of itself an error of the character or magnitude cognizable under a writ of habeas corpus.' The petitioner in Sunal is also barred, despite a 'far more compelling' claim than the one raised in Hill, see 368 U.S., at 428, 82 S.Ct., at 471, apparently because he did not receive a previous rejection of his claim on direct appeal. but petitioner in this case succeeds. According to the Court, this case is different, for petitioner has already had his precise claim decided against him once, curiously enough a circumstance considered favorable for him, and because '(t)here can be no room for doubt that such a circumstance (conviction for failure to obey a possibly invalid order) 'inherently results in a complete miscarriage of justice' and 'present(s) exceptional circumstances' that justify collateral relief under § 2255.' It is difficult to see that this process of selection rests upon any reasoned distinctions which may be derived from either the statute or the cases.
V
61
The Court's rather brief dismissal of the Government's arguments in this case might be understandable were the issues of less importance, or the result less likely to produce severe repercussions. After all, the scope of § 2255 relief has been undefined for almost 25 years and it might be supposed that continuation of this state of affairs would cause no unusual difficulties. But the potential consequences of the Court's decision today make a laissez-faire attitude inappropriate. For, '(a)ssuming that there 'exists,' in an ultimate sense, a 'correct' decision of a question of law, we can never be assured that any particular tribunal has in the past made it: we can always continue to ask whether the right rule was applied, whether a new rule should not have been fashioned.' Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441, 447 (1963). Two examples will suffice as illustrations.
62
(1) This Court occasionally, though not with great frequency, is called upon to resolve conflicts among the courts of appeals on nonconstitutional criminal questions. For example, in January of 1974, the Court decided United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603, a case in which we were asked to resolve a conflict among the courts of appeals concerning the circumstances under which fraudulent use of a credit card might violate the federal mail fraud statute. The Courts of Appeals for the Sixth and Tenth Circuits had construed the scope of the statute somewhat more narrowly than five other courts of appeals. In Maze we approved the minority approach, agreeing with the Sixth Circuit that the respondent's conviction under the mail fraud statute should be reversed.
63
The Court's decision today seems to provide full opportunity for all defendants convicted under the Mail Fraud Act in the circuits whose view was not accepted to relitigate those convictions in a § 2255 proceeding. Most of those convictions have received full appellate review, and many defendants had unsuccessfully sought certiorari in this Court. The district courts, faced with this influx of motions, will be faced with the difficult task of sifting through various factual claims to determine if the principles of Maze should be applied. I suspect that the burden will not be inconsiderable.
64
(2) The Court of Appeals for the Ninth Circuit, in affirming the dismissal of petitioner's § 2255 motion, cited its own decision in Odom v. United States, 455 F.2d 159 (1972). That case involved the question of whether the petitioner was entitled to the benefit of Wade v. United States, 426 F.2d 64 (1970), a case which had established new law on insanity for the Ninth Circuit. At the time Wade was decided the Court of Appeals specifically held that the decision should apply only to 'convictions (which) have not become final as of the date of this decision.'21 Under my reading of the Court's opinion in this case, however, petitioner Odom and anyone else who had raised an insanity defense in the Ninth Circuit may now proceed to file § 2255 motions in the District court. For Davis' conviction was as final as Odom's conviction, and no basis is evident for saying that one decision is less a 'law of the United States' than the other.
65
The effect will be twofold. First, federal courts which are already overburdened with cases will find that burden increased. As Mr. Justice Jackson noted in Brown v. Allen, 344 U.S. 443, 537, 73 S.Ct. 397, 425, 97 L.Ed. 469 (1953) (concurring in result): 'It must prejudice the occasional meritorious application to be buried in a flood of worthless ones.' Second, there will be substantial disincentive for federal courts to overthrow settled doctrines, no matter how salutary new ones might seem. Although enlightened jurisprudence may call for adopting new policies or correcting errors of interpretation, any court considering such changes must be constantly aware that numerous final convictions will thereupon be placed in jeopardy. The possible, and often undeserved, advantage to a particular litigant is thus obtained at a cost to the entire judicial system.
66
These examples unfortunately may be multiplied. Admittedly, the Court does attempt to set a minimum threshold for such claims, requiring "a fundamental defect inherently result(ing) in a complete miscarriage of justice," and "exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent." (Ante, at 346). This dictum, it is hoped, will partially offset the effect of the holding in this case, though if this petitioner's case represents a miscarriage of justice it is hard to imagine one that does not. But one must be concerned that the Court, having taken this giant step so casually, may find the next step equally easy to take, allowing perhaps challenges to evidentiary rulings and other trial matters heretofore considered inappropriate for federal habeas corpus.
VI
67
The decision in this case cannot reasonably be explained by the maxim 'Hard cases make bad law,' for although the law made is bad the case is not hard. Whatever reason there might be to strain the contours of § 2255 to permit relief to someone visited with obvious injustice, the fact is that this petitioner has had full opportunity to make his case at every stage of the way. He has alleged no deprivation of his rights to a full and fair hearing at trial, no deprivation of his right to appeal, no inability to get adequate consideration on appellate review. He simply alleges that had his case been appealed at a different time he would have won it. I cannot find that those circumstances are so exceptional as to warrant the result reached today.
68
I therefore dissent from the Court's opinion. Were I persuaded otherwise, on that score, however, I would nonetheless agree for the reasons stated in Mr. Justice POWELL in his concurring and dissenting opinion, ante, p. 347, that the judgment should be affirmed.
1
The notice further stated that '(a) delinquent registrant loses his eligibility for deferment and may be placed in a class immediately available for service. He is ordered for induction ahead of other registrants.' Pet. for Cert. 21a.
2
This regulation, which was rescinded shortly after our decision in Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532 (1970), provided in pertinent part: '(a) Whenever a registrant has failed to perform any duty or duties required of him under the selective service law other than the duty to comply with an Order to Report for Induction . . . or the duty to comply with an Order to Report for Civilian Work . . ., the local board may declare him to be a delinquent.'
3
Title 32 CFR § 1641.4 imposes a duty on every registrant to report for an Armed Forces physical examination at the time and place fixed in the order mailed to the registrant by the board. Title 32 CFR § 1641.1 imposes a duty on every registrant 'to keep his local board currently informed in writing of . . . the address where mail will reach him . . ..'
4
Title 50 U.S.C.App. § 462(a) provides, in pertinent part, that 'any person . . . who in any manner shall knowingly fail or neglect or refuse to perform any duty required of him under or in the execution of this title, or rules, regulations, or directions made pursuant to this title . . . shall, upon conviction in any district court of the United States of competent jurisdiction, be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment.' Title 32 CFR § 1641.5 imposes a duty on every registrant 'to report for induction at the time and place ordered by the local board.'
5
Both induction orders sent to the petitioner had the word 'Delinquent' typed on the face. The local board's 'Minutes of Action' also reflect that the petitioner was ordered to report 'as Del.'
6
Title 32 CFR § 1631.7 (1967) established an order in which registrants who were eligible would be called for induction. A registrant's place in this order of call was determined by several factors, including age and marital status. If a registrant were declared a delinquent under 32 CFR § 1642.4 (1967), he immediately entered the first priority in the order of call and was ordered to report for induction even ahead of volunteers for induction. In this sense, the registrant's induction was 'accelerated' as a result of the local board's delinquency declaration.
7
Gutknecht had been declared a delinquent for failing to have his registration certificate and current classification notice in his possession at all times, as required by 32 CFR §§ 1617.1 and 1623.5, respectively.
8
In this regard, the Court said:
'The power under the regulations to declare a registrant 'delinquent' has no statutory standard or even guidelines. The power is exercised entirely at the discretion of the local board. It is a broad, roving authority, a type of administrative absolutism not congenial to our law-making traditions. . . . We search the Act in vain for any clues that Congress desired the Act to have punitive sanctions apart from the criminal prosecutions specifically authorized . . .. If federal or state laws are violated by registrants, they can be prosecuted. If induction is to be substituted for these prosecutions, a vast rewriting of the Act is needed.' 396 U.S., at 306—307, 90 S.Ct., at 511.
9
At the hearing in the District Court, the executive secretary of the local board testified that the petitioner would have been inducted earlier if he had not failed to appear for the physical. In corroboration, the Government introduced the local board's 'delivery lists' showing the induction dates of other registrants at the local board. The District Court found that if the petitioner had complied with the local board's procedures and '(h)ad . . . not been declared a Delinquent, he would have been ordered to report for induction on or before November 15, 1966,' which would have been nearly eight months before he finally failed to report (July 11, 1967).
10
Between the dates of the induction orders of Davis and Fox, the provisions of 32 CFR § 1631.7(a) (1967) were incorporated into 32 CFR § 1631.7(b) (1969).
11
At the time of his § 2255 motion in the District Court, Davis also moved under Fed.Rule Crim.Proc. 35 for reduction or modification of his sentence. This motion was taken under advisement by the District Court and was thereafter granted in part. As a result, the petitioner was released from incarceration after having served four months of his three-year sentence, and he was placed on probation for the remainder of the original term.
12
In the absence of a decision by the Court of Appeals on the merits of the petitioner's contentions, this case is not an appropriate vehicle to consider whether the Gutknecht decision has retroactive application or whether the Fox case was correctly decided by the Court of Appeals.
13
Brief for United States 25 n. 11.
14
United States v. Hayman, 342 U.S. 205, 217, 72 S.Ct. 263, 271, 96 L.Ed. 232 (1952).
15
Although Sunal held that a federal prisoner could not assert a nonconstitutional claim on collateral attack if he had not raised it on appeal, the Court there recognized that this rule would not bar the assertion of constitutional claims in collateral proceedings even if the applicant had failed to pursue them on appeal. 332 U.S. 174, 178—179, 182, 67 S.Ct. 1588, 1590—1591, 1592, 91 L.Ed. 1982. Cf. Kaufman v. United States, 394 U.S. 217, 223, 89 S.Ct. 1068, 1072, 22 L.Ed.2d 227 (1969).
1
Gutknecht concerned primarily 32 CFR § 1642.13 (1969), now superseded, which assigned first priority in the order of induction to delinquents. That regulation is not at issue here.
2
Under 32 CFR § 1631.7 (1967), which has been withdrawn, the board could issue induction orders to those classified I—A or I—A—O who had been (i) found acceptable for service and (ii) mailed a Statement of Acceptability at least 21 days before the date fixed for induction, provided:
'That a registrant classified in Class I—A or Class I—A—O who is delinquent may be selected and ordered to report for induction . . . notwithstanding the fact that he has not been found acceptable for service . . . and has not been mailed a Statement of Acceptability . . ..'
Davis received his induction notice under this regulation. Davis maintains that Gutknecht invalidated the above proviso clause, thus depriving the Board of the power to induct him in the absence of a finding of acceptability (i.e., a pre-induction physical) and a Statement of Acceptability. But, as noted, Gutknecht dealt with punitive treatment of delinquents, not all treatment of such registrants. Moreover, the above regulation was not at issue in Gutknecht.
1
The particular regulation relied upon by the board was 32 CFR § 1642.4(a) (1967), which was rescinded after the Court's decision in Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532 (1970).
2
The District Court specifically found that petitioner 'would have received a complete physical examination prior to induction had he reported on July 11, 1967, as ordered.' Pet. for Cert. 10a.
3
Id., at 9a.
4
Ibid.
5
Id., at 9a—10a.
6
447 F.2d 1376.
7
405 U.S. 933, 92 S.Ct. 939, 30 L.Ed.2d 809.
8
472 F.2d 596.
9
Ibid.
10
Ibid.
11
Ibid.
12
Ante, at 342—343.
'A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the
13
The statute seems, at times, to use the terms 'sentence' and 'judgment' interchangeably, for paragraph three allows relief from judgments in specified instances while paragraph one would seem to allow attacks only on sentences. But the fact that no distinction is made between the terms in paragraph one does not mean that their contrasting use in paragraph three can automatically be deemed without significance. The Court should attempt to reach a reasonable interpretation based upon the particular context of the statute and the historical background of collateral relief, rather than simply abandoning the statute to study its legislative history. See, e.g., United States v. Sobell, 314 F.2d 314 (CA2), cert. denied, 374 U.S. 857, 83 S.Ct. 1906, 10 L.Ed.2d 1077 (1963).
14
It might be argued, of course, that the first paragraph of § 2255 was for some reason designed to permit the filing of motions for relief even in some cases where relief could not be granted under paragraph three. But the Court offers no reason, and I can think of none, why Congress would encourage such a futile exercise. What the Court has done is simply to read most of paragraph three out of the statute, apparently assuming that its more specific provisions have no function in a proper interpretation of § 2255.
15
Section 2255 was enacted to provide the same relief available under the federal habeas corpus statute without the logistical problems encountered in the latter remedy. United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232 (1952). The Court makes much of this fact in its opinion but then drops the issue without examining what constituted a 'law' for purposes of habeas corpus or what the scope of habeas corpus relief has proved to be under the decisions of this Court.
16
The Court in Swift v. Tyson, supra, was considering a section of the Judiciary Act of 1789, § 34, 1 Stat. 92, which stated, in part: '(T)he laws of the several states, except where the constitution, treaties, orstatutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply.' The Court, in explaining its doubt that court decisions constituted 'laws' observed: 'They are, at most, only evidence of what the laws are, and not of themselves laws. They are often re-examined, reversed, and qualified by the Courts themselves, whenever they are found to be either defective, or ill-founded, or otherwise incorrect.' 16 Pet., at 18.
17
The Court, in fact, avoids the necessity for a closer look at the statutory language of § 2255 by turning instead to the provisions of the federal habeas statute as a guide. This reliance makes all the more curious the fact that the court does not support its view of the scope of federal habeas by any convincing citation of authority.
18
The Sanders Court's statement of the issue before it clearly demonstrates how different that case was from the one now under consideration. In Sanders the Court said: 'We consider here the standards which should guide a federal court in deciding whether to grant a hearing on a motion of a federal prisoner under 28 U.S.C. § 2255.' 373 U.S., at 2, 83 s.Ct., at 1070. That issue arises, not under paragraph one of § 2255, setting forth the claims which a prisoner might make, or under that part of paragraph three setting forth the grounds on which relief might be granted, but under the language found earlier in paragraph three dealing with when a hearing must be held. Thus, the Court in Sanders was faced with the question, not of whether a particular type of claim is cognizable at all in a § 2255 proceeding, but simply whether a hearing is required on a claim concededly within the reach of that section.
The petitioner in Kaufman, in contrast to the petitioner here, sought relief on the ground that he had been subjected to an unconstitutional search and seizure. The Court's recognition of the constitutional tenor of his claim is evident throughout the opinion. For example, the Court clearly stated that 'the availability of collateral remedies is necessary to insure the integrity of proceedings at and before trial where constitutional rights are at stake,' 394 U.S., 225, 89 S.Ct., at 1073, (emphasis added), and that '(t)he provision of federal collateral remedies rests more fundamentally upon a recognition that adequate protection of constitutional rights relating to the criminal trial process requires the continuing availability of a mechanism for relief.' Id., at 226, 89 S.Ct., at 1074 (emphasis added).
19
See, e.g., Sunal v. Large, 332 U.S. 174, 179, 67 S.Ct. 1588, 1591, 91 L.Ed. 1982 (1947).
20
See, e.g., DeMaro v. Willingham, 401 F.2d 105, 106 (CA7 1968); Lothridge v. United States, 441 F.2d 919 (CA6 1971).
21
426 F.2d, at 74.
| 01
|
417 U.S. 369
94 S.Ct. 2291
41 L.Ed.2d 132
CITY OF PITTSBURGH, Petitioner,v.ALCO PARKING CORPORATION et al.
No. 73—582.
Argued April 15, 1974.
Decided June 10, 1974.
Syllabus
Respondent operators of offstreet parking facilities in Pittsburgh, Pa., sued to enjoin the enforcement of a city ordinance imposing an increased 20% tax on the gross receipts from parking or storing automobiles at nonresidential parking places, alleging, inter alia, that the ordinance was invalid under the Due Process Clause of the Fourteenth Amendment. The lower courts sustained the ordinance, but the Pennsylvania Supreme Court invalidated it on the ground that the tax was so unreasonably high and burdensome that, in the context of competition from public lots operated by the city parking authority, which enjoyed certain tax exemptions and other advantages, the ordinance had the 'effect' of an uncompensated taking of property contrary to the Due Process Clause. Held: The ordinance is not unconstitutional, and the city was constitutionally entitled to put the automobile parker to the choice of using other transportation or paying the increased tax. Pp. 373—379.
(a) The fact that a tax is so excessive as to render a business unprofitable or even threaten its existence furnishes no ground for holding the tax unconstitutional, Magnano Co. v. Hamilton, 292 U.S. 40, 54 S.Ct. 599, 78 L.Ed. 1109; Alaska Fish Salting & By-Products Co. v. Smith, 255 U.S. 44, 41 S.Ct. 219, 65 L.Ed. 489; and the judiciary should not infer from such fact, alone, a legislative attempt to exercise a forbidden power in the form of a seeming tax. Pp. 373—376.
(b) The ordinance does not lose its character as a tax or revenue-raising measure and may not be invalidated as too burdensome under the Due Process Clause merely because the taxing authority, directly or through an instrumentality enjoying various forms of tax exemption, competes with the taxpayer in a manner that the judiciary thinks is unfair, since the Due Process Clause does not demand of or permit the judiciary to undertake to separate burdensome and nonburdensome taxes or to oversee the terms and circumstances under which the government or its tax-exempt instrumentalities may compete with the private sector. P. 376.
453 Pa. 245, 307 A.2d 851, reversed.
Ralph Lynch, Jr., Pittsburgh, Pa., for petitioner.
Leonard Boreman, Pittsburgh, Pa., for respondents.
Mr. Justice WHITE delivered the opinion of the Court.
1
The issue in this case is the validity under the Federal Constitution or Ordinance No. 704, which was enacted by the Pittsburgh, Pennsylvania, City Council in December 1969, and which placed a 20% tax on the gross receipts obtained from all transactions involving the parking or storing of a motor vehicle at a nonresidential parking place in return for a consideration.1 The ordinance superseded a 1968 ordinance imposing an dentical tax, but at the rate of 15%, which in turn followed a tax at the rate of 10% imposed by the city in 1962. Soon after its enactment, 12 operators of offstreet parking facilities located in the city sued to enjoin enforcement of the ordinance, alleging that it was invalid under the Equal Protection and Due Process Clauses of the Fourteenth Amendment, as well as Art. VIII, § 1, of the Pennsylvania Constitution, which requires that taxes shall be uniform upon the same class of subjects. It appears from the findings and the opinions in the state courts that, at the time of suit, there were approximately 24,300 parking spaces in the downtown area of the city, approximately 17,000 of which the respondents operated. Another 1,000 were in the hands of private operators not party to the suit. The balance of approximately 6,100 was owned by the Parking Authority of the city of Pittsburgh, an agency created pursuant to the Parking Authority Law of June 5, 1947, Pa.Stat.Ann., Tit. 53, § 341 et seq. (1974). The trial court also found that there was then a deficiency of 4,100 spaces in the downtown area.
2
The Court of Common Pleas sustained the ordinance. Its judgment was affirmed by the Commonwealth Court by a four-to-three vote, 6 Pa.Cmwlth. 433, 291 A.2d 556 (1972), on rehearing, 6 Pa.Cmwlth. 433, 295 A.2d 349 (1972); but the Pennsylvania Supreme Court reversed, also four to three. 453 Pa. 245, 307 A.2d 851 (1973). That court rejected challenges to the ordinance under the Pennsylvania Constitution and the Equal Protection Clause, but invalidated the ordinance as an uncompensated taking of property contrary to the Due Process Clause of the Fourteenth Amendment. Because the decision appeared to be in conflict with the applicable decisions of this Court, we granted certiorari, 414 U.S. 1127, 94 S.Ct. 863, 38 L.Ed.2d 751 (1974), and we now reverse the judgment.2
3
In the opinion of the Supreme Court of Pennsylvania, two aspects of the Pittsburgh ordinance combined to deprive the respondents of due process of law. First, the court thought the tax was 'unreasonably high' and was responsible for the inability of nine of 14 different private parking lot operators to conduct their business at a profit and of the remainder to show more than marginal earnings. 453 Pa., at 259—260, 307 A.2d, at 859—860. Second, private operators of parking lots faced competition from the Parking Authority, a public agency enjoying tax exemption (although not necessarily from this tax)3 and other advantages which enabled it to offer offstreet parking at lower rates than those charged by private operators. The average all-day rate for the public lots was $2 as compared with a $3 allday rate for the private lots. Ibid. The court's conclusion was that '(w)here such an unfair competitive advantage accrues, generated by the use of public funds, to a local government at the expense of private property owners, without just compensation, a clear constitutional violation has occurred. . . .' '(T)he unreasonably burdensome 20 percent gross receipts tax, causing the majority of private parking lot operators to operate their businesses at a loss, in the special competitive circumstances of this case constitutes an unconstitutional taking of private property without due process of law in violation of the Fourteenth Amendment of the United States Constitution.' Id., at 267, 269 270, 307 A.2d, at 863, 864.
4
We cannot agree that these two considerations, either alone or together, are sufficient to invalidate the parking tax ordinance involved in this case. The claim that a particular tax is so unreasonably high and unduly burdensome as to deny due process is both familiar and recurring, but the Court has consistently refused either to undertake the task of passing on the 'reasonableness' of a tax that otherwise is within the power of Congress or of state legislative authorities, or to hold that a tax is unconstitutional because it renders a business unprofitable.
5
In Magnano Co. v. Hamilton, 292 U.S. 40, 54 S.Ct. 599, 78 L.Ed. 1109 (1934), the Court sustained against due process attack a state excise tax of 15¢ per pound on all butter substitutes sold in the State. Conceding that the 'tax is so excessive that it may or will result in destroying the intrastate business of appellant,' id., at 45, 54 S.Ct., at 602, the Court held that 'the due process of law clause contained in the Fifth Amendment is not a limitation upon the taxing power conferred upon Congress,' that no different rule should be applied to the States, and that a tax within the lawful power of a State should not 'be judicially stricken down under the due process clause simply because its enforcement may or will result in restricting or even destroying particular occupations or business.' Id., at 44, 54 S.Ct., at 601. The premise that a tax is invalid if so excessive as to bring about the destruction of a particular business, the Court said, had been 'uniformly rejected as furnishing on juridical ground for striking down a taxing act.' Id. at 47, 54 S.Ct., at 602. Veazie Bank v. Fenno, 8 Wall. 533, 548, 19 L.Ed. 482 (1869); McCray v. United States, 195 U.S. 27, 24 S.Ct. 769, 49 L.Ed. 78 (1904); and Alaska Fish Salting & By-Products Co. v. Smith, 255 U.S. 44, 41 S.Ct. 219, 65 L.Ed. 489 (1921), are to the same effect.
6
In Alaska Fish, a tax on the manufacture of certain fish products was sustained, the Court saying, id., at 48—49, 41 S.Ct., at 220: 'Even if the tax should destroy a business it would not be made invalid or require compensation upon that ground alone. Those who enter upon a business take that risk. . . . We know of no objection to exacting a discouraging rate as the alternative to giving up a business, when the legislature has the full power of taxation.' See also International Harvester Co. v. Wisconsin Dept. of Taxation, 322 U.S. 435, 444, 64 S.Ct. 1060, 1065, 88 L.Ed. 1373 (1944); Child Labor Tax Case, 259 U.S. 20, 30, 42 S.Ct. 449, 66 L.Ed. 817 (1922); Brushaber v. Union Pacific R. Co., 240 U.S. 1, 24, 36 S.Ct. 236, 244, 60 L.Ed. 493 (1916); Flint v. Stone Tracy Co., 220 U.S. 107, 168—169, 31 S.Ct. 342, 356, 55 L.Ed. 389 (1911).
7
Neither the parties nor the Pennsylvania Supreme Court purports to differ with the foregoing principles. But the state court concluded that this was one of those 'rare and special instances' recognized in Magnano and other cases where the Due Process Clause may be invoked because the taxing statute is 'so arbitrary as to compel the conclusion that it does not involve an exertion of the taxing power, but constitutes, in substance and effect, the direct exertion of a different and forbidden power, as, for example, the confiscation of property.' 292 U.S., at 44,4 54 S.Ct., at 601.
8
There are several difficulties with this position. The ordinance on its face recites that its purpose is '(t)o provide for the general revenue by imposing a tax . . .,' and in sustaining the ordinance against an equal protection challenge, the state court itself recognized that commercial parking lots are a proper subject for special taxation and that the city had decided, 'not without reason, that commercial parking oprations should be singled out for special taxation to raise revenue because of traffic related problems engendered by these operations.' 453 Pa., at 257, 307 A.2d, at 858 (emphasis added).
9
It would have been difficult from any standpoint to have held that the ordinance was in no sense a revenue measure. The 20% tax concededly raised substantial sums of money; and even if the revenue collected had been insubstantial, Sonzinsky v. United States, 300 U.S. 506, 513—514, 57 S.Ct. 554, 555—556, 81 L.Ed. 772 (1937), or the revenue purpose only secondary, Hampton & Co. v. United States, 276 U.S. 394, 411—413, 48 S.Ct. 348, 352—353, 72 L.Ed. 624 (1928), we would not necessarily treat this exaction as anything but a tax entitled to the presumption of the validity accorded other taxes imposed by a State.
10
Rather than conclude that the 20% levy was not a tax at all, the Pennsylvania court accepted it as such and merely concluded that it was so unreasonably high and burdensome that, in the context of competition by the city, the ordinance had the 'effect' of an uncompensated taking of property. 453 Pa., at 269, 307 A.2d, at 864. The court did not hold a parking tax, as such, to be beyond the power of the city but it appeared to hold that a bona fide tax, if sufficiently burdensome, could be held invalid under the Fourteenth Amendment. This approach is contrary to the cases already cited, particularly to the oft-repeated principle that the judiciary should not infer a legislative attempt to exercise a forbidden power in the form of a seeming tax from the fact, alone, that the tax appears excessive or even so high as to threaten the existence of an occupation or business. Magnano Co. v. Hamilton, supra, at 47, 54 S.Ct., at 602; Child Labor Tax Case, supra, at 40 41, 42 S.Ct., at 451—452; Veazie Bank v. Fenno, supra, at 548.
11
Nor are we convinced that the ordinance loses its character as a tax and may be stricken down as too burdensome under the Due Process Clause if the taxing authority, directly or through an instrumentality enjoying various forms of tax exemption, competes with the taxpayer in a manner thought to be unfair by the judiciary. This approach would demand not only that the judiciary undertaken to separate those taxes that are too burdensome from those that are not, but also would require judicial oversight of the terms and circumstances under which the government or its tax-exempt instrumentalities may undertake to compete with the private sector. The clear teaching of prior cases is that this is not a task that the Due Process Clause demands of or permits to the judiciary. We are not now inclined to chart a different course.
12
In Veazie Bank, supra, a 10% tax on state bank notes was sustained over the objection of the dissenters that the purpose was to foster national banks, instrumentalities of the National Government, in preference to private banks chartered by the States. More directly in pont is Puget Sound Power & Light Co. v. Seattle, 291 U.S. 619, 54 S.Ct. 542, 78 L.Ed. 1025 (1934), where the city imposed a gross receipts tax on a power and light company and at the same time actively competed with that company in the business of furnishing power to consumers. The company's contention was that 'constitutional limitations are transgressed . . . because the tax affects a business with which the taxing sovereign is actively competing.' Id., at 623, 54 S.Ct., at 544. Calling on prior cases in support, the Court rejected the contention, holding that 'the Fourteenth Amendment does not prevent a city from conducting a public waterworks in competition with private business or preclude taxation of the private business to help its rival to succeed.' Id., at 626, 54 S.Ct., at 546. See also Madera Water Works v. Madera, 228 U.S.,454, 33 S.Ct. 571, 57 L.Ed. 915 (1913). The holding in Puget Sound remains good law and, together with the other authorities to which we have already referred, it is sufficient to require reversal of the decision of the Pennsylvania Supreme Court.
13
Even assuming that an uncompensated and hence forbidden 'taking' could be inferred from an unreasonably high tax in the context of competition from the taxing authority, we could not conclude that the Due Process Clause was violated in the circumstances of this case. It was urged by the city that the private operators would not suffer because they could and would pass the tax on to their customers, who, as a class, should pay more for the services of the city that they directly or indirectly utilize in connection with the special problems incident to the twice daily movement of large numbers of cars on the streets of the city and in and out of parking garages. The response of the Pennsylvania Supreme Court was that competition from the city prevented the private operators from raising their prices and recouping their losses by collecting the tax from their customers. On the record before us, this is not a convincing basis for concluding that the parking tax effected an unconstitutional taking of respondents' property. There are undisturbed findings in the record that there were 24,300 parking places in the downtown area, that there was an overall shortage of parking facilities, and that the public authority supplied only 6,100 parking spaces. Because these latter spaces were priced substantially under the private lots it could be anticipated that they would be preferred by those seeking parking in the downtown area. Insofar as this record reveals, for the 20% tax to have a destructive effect on private operators as compared with the situation immediately preceding its enactment, the damage would have to flow chiefly, not from those who preferred the cheaper public parking lots, but from those who could no longer afford an increased price for downtown parking at all. If this is the case, we simply have another instance where the government enacts a tax at a 'discouraging rate as the alternative to giving up a business,' a policy to which there is no constitutional objection. Alaska Fish Salting & By-Products Co. v. Smith, 255 U.S., at 49, 41 S.Ct., at 220; Magnano Co. v. Hamilton, 292 U.S., at 46, 54 S.Ct., at 602.
14
The parking tax ordinance recited that '(n)on-residential parking places for motor vehicles, by reason of the frequency rate of their use, the changing intensity of their use at various hours of the day, their location, their relationship to traffic congestion and other characteristics, present problems requiring municipal services and affect the public interest, differently from parking places accessory to the use and occupancy of residences.' By enacting the tax, the city insisted that those providing and utilizing nonresidential parking facilities should pay more taxes to compensate the city for the problems incident to offstreet parking. The city was constitutionally entitled to put the automobile parker to the choice of using other transportation or paying the increased tax.
15
The judgment of the Pennsylvania Supreme Court is reversed.
16
Judgment reversed.
17
Mr. Justice POWELL, concurring.
18
The opinion of the Court fully explicates the issue presented here, and I am in accord with its resolution. I write briefly only to emphasize my understanding that today's decision does not foreclose the possibility that some combination of unreasonably burdensome taxation and direct competition by the taxing authority might amount to a taking of property without just compensation in violation of the Fifth and Fourteenth Amendments.
19
To some extent, private business is inevitably handicapped by direct governmental competition, but the opinion of the Court makes plain that the legitimate exercise of the taxing power is not to be restrained on this account. It is conceivable, however, that punitive taxation of a private industry and direct economic competition through a governmental entity enjoying special competitive advantages would effectively expropriate a private business for public profit. Such a combination of unreasonably burdensome taxation and public competition would be the functional equivalent of a governmental taking of private property for public use and would be subject to the constitutional requirement of just compensation. As the opinion of the Court clearly reveals, ante, at 377—378, no such circumstance has been shown to exist in the instant case.
1
The ordinance defined a nonresidential parking place as follows:
'(c) 'Non-Residential Parking Place' or 'Parking Place'—any place within the City, whether wholly or partially enclosed or open, at which motor vehicles are parked or stored for any period of time in return for a consideration not including:
'(i) any parking area or garage to the extent that it is provided or leased to the occupants of a residence on the same or other primises for use only in connection with, and as accessory to, the occupancy of such residence, and (ii) any parking area or garage operated exclusively by an owner or lessee of a hotel, an apartment hotel, tourist court or trailer park, to the extent that the parking area or garage is provided to guests or tenants of such hotel, tourist court or trailer park for no additional consideration.
'As used herein, the term 'residence' includes (i) any building designed and used for family living or sleeping purposes other than a hotel, apartment hotel, tourist court or trailer park, and (ii) any dwelling unit located in a hotel or apartment hotel.
'The terms 'hotel', 'apartment hotel,' 'tourist court,' 'trailer park' and 'dwelling unit' are used herein as defined in the Zoning Ordinance, Ordinance No. 192, approved May 10, 1958, as amended.'
2
It appears from the opinion of the Pennsylvania Supreme Court that Ordinance No. 704 was itself superseded while appeal was pending in the state curts. 453 Pa. 245, 266 n. 13, 307 A.2d 851, 863 n. 13. The new ordinance, effective April 1, 1973, imposed a 20% tax on the consideration paid in nonresidential parking transactions, the tax to be collected from the patron by the operator. This case is not mooted by the new ordinance, however, for there remains the issue of substantial refunds of taxes collected under Ordinance No. 704.
3
The ordinance on its face applies to all nonresidential parking transactions. The following, however, appears in n. 9 of the opinion of the Pennsylvania Supreme Court, 453 Pa., at 265, 307 A.2d, at 862:
'As of this writing, the Allegheny County Court of Common Pleas has ruled that the Public Parking Authority is exempt from payment of the challenged gross receipts tax. Public Parking Authority of Pittsburgh v. City of Pittsburgh, No. 687, July Term, 1972. See Allegheny County v. Moon Township, 436 Pa. 54, 258 A.2d 630 (1969). An appeal is presently pending before the Commonwealth Court.
'However, whether the Public Parking Authority is subject to the tax seems to make little read difference in the context of this present dispute. Even if the Authority had to pay the tax to the City it would mean only in reality an accounting transaction, transferring dollars from one pocket of an instrumentality of City government to another. Thus although appellants' argument would be strengthened by the common pleas court's decision, we need not presently rest our decision upon Public Parking Authority of Pittsburgh v. City of Pittsburgh, supra.'
4
Cf. Heiner v. Donnan, 285 U.S. 312, 326, 52 S.Ct. 358, 361, 76 L.Ed. 772 (1932); Nichols v. Coolidge, 274 U.S. 531, 542, 47 S.Ct. 710, 713—714, 71 L.Ed. 1184 (1927); Child Labor Tax Case, 259 U.S. 20, 37 et seq., 42 S.Ct. 449, 450, 66 L.Ed. 817 (1922); Brushaber v. Union Pacific R. Co., 240 U.S. 1, 24—25, 36 S.Ct. 236, 244—245, 60 L.Ed. 493 (1916); McCary v. United States, 195 U.S. 27, 60, 24 S.Ct. 769, 778, 49 L.Ed. 78 (1904); Henderson Bridge Co. v. Henderson City, 173 U.S. 592, 614—615, 19 S.Ct. 553, 561—562, 43 L.Ed. 823 (1899); McCulloch v. Maryland, 4 Wheat. 316, 423, 4 L.Ed. 579 (1819).
| 78
|
417 U.S. 433
94 S.Ct. 2357
41 L.Ed.2d 182
State of MICHIGAN, Petitioner,v.Thomas W. TUCKER.
No. 73—482.
Argued March 20, 1974.
Decided June 10, 1974.
Syllabus
Respondent, who had been arrested for rape, was questioned by police. Before the commencement of the interrogation (which antedated this Court's decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), respondent was advised of his right to remain silent and his right to counsel (but not of his right to the appointment of counsel if he was indigent). Respondent related an alibi that he was with a friend (Henderson), at the time of the crime, but the police later elicited from Henderson information tending to incriminate respondent. Before trial, respondent made a motion to exclude Henderson's expected testimony because respondent had revealed Henderson's identity without having received the full warnings mandated by the intervening Miranda decision. The motion was denied, Henderson testified, and respondent was convicted. Following affirmance on appeal, respondent sought habeas corpus relief, which the District Court granted, finding that Henderson's testimony was inadmissible because of the Miranda violation. The Court of Appeals affirmed. Held:
1. The police conduct in this case, though failing to afford respondent the full measure of procedural safeguards later set forth in Miranda, did not deprive respondent of his privilege against self-incrimination since the record clearly shows that respondent's statements during the police interrogation were not involuntary or the result of potential legal sanctions. Pp. 446 452.
2. The evidence derived from the police interrogation was admissible. Pp. 446—452.
(a) The police's pre-Miranda failure to advise respondent of his right to appointed counsel under all the circumstances of this case involved no bad faith and would not justify recourse to the exclusionary rule which is aimed at deterring willful or negligent deprivation of the accused's rights. Pp. 446—448.
(b) The failure to advise respondent of his right to appointed counsel had no bearing upon the reliability of Henderson's testimony, which was subjected to the normal testing process of an adversary trial. Pp. 448—449.
(c) The use of the testimony of a witness discovered by the police as a result of the accused's statements under these circumstances does not violate any requirements under the Fifth, Sixth, and Fourteenth Amendments relating to the adversary system. Pp. 449—450.
480 F.2d 927, reversed.
L. Brooks Patterson, for petitioner.
Edward R. Korman, for the United States, an amicus curiae, by special leave of Court.
Kenneth M. Mogill, Detroit, Mich., for respondent, pro hac vice, by special leave of Court.
Roman S. Gribbs, Detroit, Mich., for the Detroit Bar Association, as amicus curiae, by special leave of Court.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
This case presents the question whether the testimony of a witness in respondent's state court trial for rape must be excluded simply because police had learned the identity of the witness by questioning respondent at a time when he was in custody as a suspect, but had not been advised that counsel would be appointed for him if he was indigent. The questioning took place before this Court's decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), but respondent's trial, at which he was convicted, took place afterwards. Under the holding of Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), therefore, Miranda is applicable to this case. The United States District Court for the Eastern District of Michigan reviewed respondent's claim on a petition for habeas corpus and held that the testimony must be excluded.1 The Court of Appeals affirmed.2
2
* On the morning of April 19, 1966, a 43-year-old woman in Pontiac, Michigan was found in her home by a friend and coworker, Luther White, in serious condition. At the time she was found the woman was tied, gagged, and partially disrobed, and had been both raped and severely beaten. She was unable to tell White anything about her assault at that time and still remains unable to recollect what happened.
3
While White was attempting to get medical help for the victim and to call for the police, he observed a dog inside the house. This apparently attracted White's attention for he knew that the woman did not own a dog herself. Later, when talking with police officers, White observed the dog a second time, and police followed the dog to respondent's house. Neighbors further connected the dog with respondent.
4
The police then arrested respondent and brought him to the police station for questioning. Prior to the actual interrogation the police asked respondent whether he knew for what crime he had been arrested, whether he wanted an attorney, and whether he understood his constitutional rights.3 Respondent replied that he did understand the crime for which he was arrested, that he did not want an attorney, and that he understood his rights.4 The police further advised him that any statements he might make could be used against him at a later date in court.5 The police, however, did not advise respondent that he would be furnished counsel free of charge if he could not pay for such services himself.
5
The police then questioned respondent about his activities on the night of the rape and assault. Respondent replied that during the general time period at issue he had first been with one Robert Henderson and then later at home, alone, asleep. The police sought to confirm this story by contacting Henderson, but Henderson's story served to discredit rather than to bolster respondent's account. Henderson acknowledged that respondent had been with him on the night of the crime but said that he had left at a relatively early time. Furthermore, Henderson told police that he saw respondent the following day and asked him at that time about scratches on his face—'asked him if he got hold of a wild one or something.'6 Respondent answered: '(S)omething like that.'7 Then, Henderson said, he asked respondent 'who it was,'8 and respondent said: '(S)ome woman lived the next block over,'9 adding: 'She is a widow woman' or words to that effect.10
6
These events all occurred prior to the date on which this Court handed down its decision in Miranda v. Arizona, supra, but respondent's trial occurred afterwards. Prior to trial respondent's appointed counsel made a motion to exclude Henderson's expected testimony because respondent had revealed Henderson's identity without having received full Miranda warnings. Although respondent's own statements taken during interrogation were excluded, the trial judge denied the motion to exclude Henderson's testimony. Henderson therefore testified at trial, and respondent was convicted of rape and sentenced to 20 to 40 years' imprisonment. His conviction was affirmed by both the Michigan Court of Appeals11 and the Michigan Supreme Court.12
7
Respondent then sought habeas corpus relief in Federal District Court. That court, noting that respondent had not received the full Miranda warnings and that the police had stipulated Henderson's identity was learned only through respondent's answers, 'reluctantly' concluded that Henderson's testimony could not be admitted.13 Application of such an exclusionary rule was necessary, the court reasoned, to protect respondent's Fifth Amendment right against compulsory self-incrimination. The court therefore granted respondent's petition for a writ of habeas corpus unless petitioner retried respondent within 90 days. The Court of Appeals for the Sixth Circuit affirmed. We granted certiorari, 414 U.S. 1062, 94 S.Ct. 568, 38 L.Ed.2d 467 (1973), and now reverse.
II
8
Although respondent's sole complaint is that the police failed to advise him that he would be given free counsel if unable to afford counsel himself, he did not, and does not now, base his arguments for relief on a right to counsel under the Sixth and Fourteenth Amendments. Nor was the right to counsel, as such, considered to be persuasive by either federal court below. We do not have a situation such as that presented in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), where the policemen interrogating the suspect had refused his repeated requests to see his lawyer who was then present at the police station. As we have noted previously, Escobedo is not to be broadly extended beyond the facts of that particular case. See Johnson v. New Jersey, 384 U.S., at 733—734, 86 S.Ct., at 1780 1781; Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972); Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 1424, 22 L.Ed.2d 684 (1969). This case also falls outside the rationale of United States v. Wade, 388 U.S. 218, 224, 87 S.Ct. 1926, 1930, 18 L.Ed.2d 1149 (1967), where the Court held that counsel was needed at a post-indictment lineup in order to protect the 'right to a fair trial at which the witnesses against (the defendant) might be meaningfully cross-examined.' Henderson was fully available for searching cross-examination at respondent's trial.
9
Respondent's argument, and the opinions of the District Court and Court of Appeals, instead rely upon the Fifth Amendment right against compulsory self-incrimination and the safeguards designed in Miranda to secure that right. In brief, the position urged upon this Court is that proper regard for the privilege against compulsory self-incrimination requires, with limited exceptions not applicable here, that all evidence derived solely from statements made without full Miranda warnings be excluded at a subsequent criminal trial. For purposes of analysis in this case we believe that the question thus presented is best examined in two separate parts. We will therefore first consider whether the police conduct complained of directly infringed upon respondent's right against compulsory self-incrimination or whether it instead violated only the prophylactic rules developed to protect that right. We will then consider whether the evidence derived from this interrogation must be excluded.
III
10
The history of the Fifth Amendment right against compulsory self-incrimination, and the evils against which it was directed, have received considerable attention in the opinions of this Court. See, e.g., Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972); Miranda v. Arizona, supra; Murphy v. Waterfront Comm'n, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964); Ullmann v. United States, 350 U.S. 422, 426, 76 S.Ct. 497, 500, 100 L.Ed. 511 (1956); Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892). At this point in our history virtually every schoolboy is familiar with the concept, if not the language, of the provision that reads: 'No person . . . shall be compelled in any criminal case to be a witness against himself . . ..' This Court's decisions have referred to the right as 'the mainstay of our adversary system of criminal justice,' Johnson v. New Jersey, supra, 384 U.S., at 729, 86 S.Ct., at 1779, and as "one of the great landmarks in man's struggle to make himself civilized." Ullmann, supra, 350 U.S., at 426, 76 S.Ct., at 500. It is not surprising that the constitution of virtually every State has a comparable provision. 8 J. Wigmore, Evidence § 2252 (McNaughton rev. 1961) (hereinafter Wigmore).
11
The importance of a right does not, by itself, determine its scope, and therefore we must continue to hark back to the historical origins of the privilege, particularly the evils at which it was to strike. The privilege against compulsory self-incrimination was developed by painful opposition to a course of ecclesiastical inquisitions and Star Chamber proceedings occurring several centuries ago. See L. Levy, Origins of the Fifth Amendment (1968); Morgan, The Privilege Against Self-Incrimination, 34 Minn.L.Rev. 1 (1949); 8 Wigmore § 2250. Certainly anyone who reads accounts of those investigations, which placed a premium on compelling subjects of the investigation to admit guilt from their own lips, cannot help but be sensitive to the Framers' desire to protect citizens against such compulsion. As this Court has noted, the privilege against self-incrimination 'was aimed at a . . . far-reaching evil—a recurrence of the Inquisition and the Star Chamber, even if not in their stark brutality.' Ullmann, supra, at 428, 76 S.Ct., at 501.
12
Where there has been genuine compulsion of testimony, the right has been given broad scope. Although the constitutional language in which the privilege is cast might be construed to apply only to situations in which the prosecution seeks to call a defendant to testify against himself at his criminal trial, its application has not been so limited. The right has been held applicable to proceedings before a grand jury, Counselman v. Hitchcock, supra; to civil proceedings, McCarthy v. Arndstein, 266 U.S. 34, 45 S.Ct. 16, 69 L.Ed. 158 (1924); to congressional investigations, Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273 (1957); to juvenile procedings, In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); and to other statutory inquiries, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). The privilege has also been applied against the States by virtue of the Fourteenth Amendment. Ibid.
13
The natural concern which underlies many of these decisions is that an inability to protect the right at one stage of a proceeding may make its invocation useless at a later stage. For example, a defendant's right not to be compelled to testify against himself at his own trial might be practically nullified if the prosecution could previously have required him to give evidence against himself before a grand jury. Testimony obtained in civil suits, or before administrative or legislative committees, could also prove so incriminating that a person compelled to give such testimony might readily be convicted on the basis of those disclosures in a subsequent criminal proceeding.14
14
In more recent years this concern—that compelled disclosures might be used against a person at a later criminal trial—has been extended to cases involving police interrogation. Before Miranda the principal issue in these cases was not whether a defendant had waived his privilege against compulsory self-incrimination but simply whether his statement was 'voluntary.' In state cases the Court applied the Due Process Clause of the Fourteenth Amendment, examining the circumstances of interrogation to determine whether the processes were so unfair or unreasonable as to render a subsequent confession involuntary. See, e.g., Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936); Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940); White v. Texas, 310 U.S. 530, 60 S.Ct. 1032, 84 L.Ed. 1342 (1940); Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958); Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963). See also 3 J. Wigmore, Evidence § 815 et seq. (Chadbourne rev. 1970). Where the State's actions offended the standards of fundamental fairness under the Due Process Clause, the State was then deprived of the right to use the resulting confessions in court.
15
Although federal cases concerning voluntary confessions often contained references to the privilege against compulsory self-incrimination,15 references which were strongly criticized by some commentators, see 8 Wigmore § 2266,16 it was not until this Court's decision in Miranda that the privilege against compulsory self-incrimination was seen as the principal protection for a person facing police interrogation. This privilege had been made applicable to the States in Malloy v. Hogan, supra, and was thought to offer a more comprehensive and less subjective protection than the doctrine of previous cases. In Miranda the Court examined the facts of four separate cases and stated:
16
'In these cases, we might not find the defendants' statements to have been involuntary in traditional terms. Our concern for adequate safeguards to protect precious Fifth Amendment rights is, of course, not lessened in the slightest. . . . To be sure, the records do not evince overt physical coercion or patent psychological ploys. The fact remains that in none of these cases did the officers undertake to afford appropriate safeguards at the outset of the interrogation to insure that the statements were truly the product of free choice.' 384 U.S., at 457, 86 S.Ct., at 1618, 16 L.Ed.2d 694.
17
Thus the Court in Miranda, for the first time, expressly declared that the Self-Incrimination Clause was applicable to state interrogations at a police station, and that a defendant's statements might be excluded at trial despite their voluntary character under traditional principles.
18
To supplement this new doctrine, and to help police officers conduct interrogations without facing a continued risk that valuable evidence would be lost, the Court in Miranda established a set of specific protective guidelines, now commonly known as the Miranda rules. The Court declared that 'the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.' Id., at 444, 86 S.Ct., at 1612. A series of recommended 'procedural safeguards' then followed. The Court in particular stated:
19
'Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.' Ibid.
20
The Court said that the defendant, of course, could waive these rights, but that any waiver must have been made 'voluntarily, knowingly and intelligently.' Ibid.
21
The Court recognized that these procedural safeguards were not themselves rights protected by the Constitution but were instead measures to insure that the right against compulsory self-incrimination was protected. As the Court remarked:
22
'(W)e cannot say that the Constitution necessarily requires adherence to any particular solution for the inherent compulsions of the interrogation process as it is presently conducted.'
23
Id., at 467, 86 S.Ct., at 1624.
24
The suggested safeguards were not intended to 'create a constitutional straightjacket,' ibid., but rather to provide practical reinforcement for the right against compulsory self-incrimination.
25
A comparison of the facts in this case with the historical circumstances underlying the privilege against compulsory self-incrimination strongly indicates that the police conduct here did not deprive respondent of his privilege against compulsory self-incrimination as such, but rather failed to make available to him the full measure of procedural safeguards associated with that right since Miranda. Certainly no one could contend that the interrogation faced by respondent bore any resemblance to the historical practices at which the right against compulsory self-incrimination was aimed. The District Court in this case noted that the police had 'warned (respondent) that he had the right to remain silent,' 352 F.Supp. 266, 267 (1972), and the record in this case clearly shows that respondent was informed that any evidence taken could be used against him.17 The record is also clear that respondent was asked whether he wanted an attorney and that he replied that he did not.18 Thus, his statements could hardly be termed involuntary as that term has been defined in the decisions of this Court. Additionally, there were no legal sanctions, such as the threat of contempt, which could have been applied to respondent had he chosen to remain silent. He was simply not exposed to 'the cruel trilemma of self-accusation, perjury or contempt.' Murphy v. Waterfront Comm'n, 378 U.S., at 55, 84 S.Ct., at 1596.
26
Our determination that the interrogation in this case involved no compulsion sufficient to breach the right against compulsory self-incrimination does not mean there was not a disregard, albeit an inadvertent disregard, of the procedural rules later established in Miranda. The question for decision is how sweeping the judicially imposed consequences of this disregard shall be. This Court said in Miranda that statements taken in violation of the Miranda principles must not be used to prove the prosecution's case at trial. That requirement was fully complied with by the state court here: respondent's statements, claiming that he was with Henderson and then asleep during the time period of the crime were not admitted against him at trial. This Court has also said, in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), that the 'fruits' of police conduct which actually infringed a defendant's Fourth Amendment rights must be suppressed.19 But we have already concluded that the police conduct at issue here did not abridge respondent's constitutional privilege against compulsory self-incrimination, but departed only from the proplylactic standards later laid down by this Court in Miranda to safeguard that privilege. Thus, in deciding whether Henderson's testimony must be excluded, there is no controlling precedent of this Court to guide us. We must therefore examine the matter as a question of principle.
IV
27
Just as the law does not require that a defendant receive a perfect trial, only a fair one, it cannot realistically require that policeman investigating serious crimes make no errors whatsoever. The pressures of law enforcement and the vagaries of human nature would make such an expectation unrealistic. Before we penalize police error, therefore, we must consider whether the sanction serves a valid and useful purpose.
28
We have recently said, in a search-and-seizure context, that the exclusionary rule's 'prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures.' United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 619, 38 L.Ed.2d 561 (1974). We then continued:
29
"The rule is calculated to prevent, not to repair. Its purpose is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.' Elkins v. United States, 364 U.S. 206, 217 (80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669) (1960).'20 Ibid., 94 S.Ct., at 620.
30
In a proper case this rationale would seem applicable to the Fifth Amendment context as well.
31
The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused. Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.
32
We consider it significant to our decision in this case that the officers' failure to advise respondent of his right to appointed counsel occurred prior to the decision in Miranda. Although we have been urged to resolve the broad question of whether evidence derived from statements taken in violation of the Miranda rules must be excluded regardless of when the interrogation took place,21 we instead place our holding on a narrower ground. For at the time respondent was questioned these police officers were guided, quite rightly, by the principles established in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), particularly focusing on the suspect's opportunity to have retained counsel with him during the interrogation if he chose to do so.22 Thus, the police asked respondent if he wanted counsel, and he answered that he did not. The statements actually made by respondent to the police, as we have observed, were excluded at trial in accordance with Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). Whatever deterrent effect on future police conduct the exclusion of those statements may have had, we do not believe it would be significantly augmented by excluding the testimony of the witness Henderson as well.
33
When involuntary statements or the right against compulsory self-incrimination are involved, a second justification for the exclusionary rule also has been asserted: protection of the courts from reliance on untrustworthy evidence.23 Cases which involve the Self-Incrimination Clause must, by definition, involve an element of coercion, since the Clause provides only that a person shall not be compelled to give evidence against himself. And cases involving statements often depict severe pressures which may override a particular suspect's insistence on innocence. Fact situations ranging from classical third-degree torture, Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936), to prolonged isolation from family or friends in a hostile setting, Callegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962), or to a simple desire on the part of a physically or mentally exhausted suspect to have a seemingly endless interrogation end, Watts v. Indiana, 338 U.S. 49, 69 S.Ct. 1347, 1357, 93 L.Ed. 1801 (1949), all might be sufficient to cause a defendant to accuse himself falsely.
34
But those situations are a far cry from that presented here. The pressures on respondent to accuse himself were hardly comparable even with the least prejudicial of those pressures which have been dealt with in our cases. More important, the respondent did not accuse himself. The evidence which the prosecution successfully sought to introduce was not a confession of guilt by respondent, or indeed even an exculpatory statement by respondent, but rather the testimony of a third party who was subjected to no custodial pressures. There is plainly no reason to believe that Henderson's testimony is untrustworthy simply because respondent was not advised of his right to appointed counsel. Henderson was both available at trial and subject to cross-examination by respondent's counsel, and counsel fully used this opportunity, suggesting in the course of his cross-examination that Henderson's character was less than exemplary and that he had been offered incentives by the police to testify against respondent.24 Thus the reliability of his testimony was subject to the normal testing process of an adversary trial.
35
Respondent contends that an additional reason for excluding Henderson's testimony is the notion that the adversary system requires 'the government in its contest with the individual to shoulder the entire load.' 8 Wigmore § 2251, p. 317; Murphy v. Waterfront Comm'n 378 U.S., at 55, 84 S.Ct., at 1596; Miranda v. Arizona, 384 U.S., at 460, 86 S.Ct., at 1620. To the extent that this suggested basis for the exclusionary rule in Fifth Amendment cases may exist independently of the deterrence and trustworthiness rationales, we think it of no avail to respondent here. Subject to applicable constitutional limitations, the Government is not forbidden all resort to the defendant to make out its case. It may require the defendant to give physical evidence against himself, see Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), and it may use statements which are voluntarily given by the defendant after he receives full disclosure of the rights offered by Miranda. Here we deal, not with the offer of respondent's own statements in evidence, but only with the testimony of a witness whom the police discovered as a result of respondent's statements. This recourse to respondent's voluntary statements does no violence to such elements of the adversary system as may be embodied in the Fifth, Sixth, and Fourteenth Amendments.
36
In summary, we do not think that any single reason supporting exclusion of this witness' testimony, or all of them together, are very persuasive.25 By contrast, we find the arguments in favor of admitting the testimony quite strong. For, when balancing the interests involved, we must weigh the strong interest under any system of justice of making available to the trier of fact all concededly relevant and trustworthy evidence which either party seeks to adduce. In this particular case we also 'must consider society's interest in the effective prosecution of criminals in light of the protection our pre-Miranda standards afford criminal defendants.' Jenkins v. Delaware, 395 U.S. 213, 221, 89 S.Ct. 1677, 1681, 23 L.Ed.2d 253 (1969). These interests may be outweighed by the need to provide an effective sanction to a constitutional right, Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), but they must in any event be valued. Here respondent's own statement, which might have helped the prosecution show respondent's guilty conscience at trial, had already been excised from the prosecution's case pursuant to this Court's Johnson decision. To extend the excision further under the circumstances of this case and exclude relevant testimony of a third-party witness would require far more persuasive arguments than those advanced by respondent.
37
This Court has already recognized that a failure to give interrogated suspects full Miranda warnings does not entitle the suspect to insist that statements made by him be excluded in every conceivable context. In Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), the Court was faced with the question of whether the statements of the defendant himself, taken without informing him of his right of access to appointed counsel, could be used to impeach defendant's direct testimony at trial. The Court concluded that they could, saying:
38
'Some comments in the Miranda opinion can indeed be read as indicating a bar to use of an uncounseled statement for any purpose, but discussion of that issue was not at all necessary to the Court's holding and cannot be regarded as controlling. Miranda barred the prosecution from making its case with statements of an accused made while in custody prior to having or effectively waiving counsel. It does not follow from Miranda that evidence inadmissible against an accused in the prosecution's case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfied legal standards.' Id., at 224, 91 S.Ct., at 645.
39
We believe that this reasoning is equally applicable here. Although Johnson enabled respondent to block admission of his own statements, we do not believe that it requires the prosecution to refrain from all use of those statements, and we disagree with the courts below that Henderson's testimony should have been excluded in this case.26
40
Reversed.
41
Mr. Justice STEWART (concurring).
42
In joining the opinion of the Court, I add only that I could also join Mr. Justice BRENNAN'S concurrence. For it seems to me that despite differences in phraseology, and despite the disclaimers of their respective authors, the Court opinion and that of Mr. Justice BRENNAN proceed along virtually parallel lines, give or take a couple of argumentative footnotes.
43
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins (concurring in the judgment).
44
The Court finds it unnecessary to decide 'the broad question' of whether the fruits of 'statements taken in violation of the Miranda rules must be excluded regardless of when the interrogation took place,' ante, at 447, since respondent's interrogation occurred prior to our decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In my view, however, it is unnecessary, too, for the Court to address the narrower question of whether the principles of Miranda require that fruits be excluded when obtained as a result of a pre-Miranda interrogation without the requisite prior warnings. The Court, in answering this question, proceeds from the premise that Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), maked Miranda applicable to all cases in which a criminal trial was commenced after the date of our decision in Miranda, and that, since respondent's trial was post-Miranda, the effect of Miranda on this case must be resolved. I would not read Johnson as making Miranda applicable to this case.1
45
Frank acknowledgment that retroactive application of newly announced constitutional rules of criminal procedure may have a serious impact on the administration of criminal justice has led us, since Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), to determine retroactivity in terms of three criteria: (1) the purpose served by the new rules; (2) the extent of law enforcement officials' justifiable reliance on prior standards; and (3) the effect on the administration of justice of a retroactive application of the new rules. See, e.g., Michigan v. Payne, 412 U.S. 47, 51, 93 S.Ct. 1966, 1967, 36 L.Ed.2d 736 (1973); Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967); Tehan v. United States ex rel. Shott, 382 U.S. 406, 410—418, 86 S.Ct. 459, 461—467, 15 L.Ed.2d 453 (1966). We have as a general matter limited our discussion of the relevant 'purpose' of new rules to their functional value in enhancing the reliability of the factfinding process. See, e.g., Williams v. United States, 401 U.S. 646, 653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388 (1971); id., at 663, 91 S.Ct., at 1157 (concurring opinion); Desist v. United States, 394 U.S. 244, 249—250, 89 S.Ct. 1030, 1033—1034, 22 L.Ed.2d 248 (1969); Roberts v. Russell, 392 U.S. 293, 294, 88 S.Ct. 1921, 1922, 20 L.Ed.2d 1100 (1968); Tehan v. United States ex rel. Shott, supra; Linkletter v. Walker, supra, 381 U.S., at 638—639, 85 S.Ct., at 1742—1743. This limiting approach has been taken in recognition that '(t)he basic purpose of a trial is the determination of truth,' Tehan v. United States ex rel. Shott, supra, 382 U.S., at 416, 86 S.Ct., at 465; see Stovall v. Denno, supra, 388 U.S., at 297—298, 87 S.Ct., at 1970 1971, and that the principal legitimate interest of a convicted defendant is therefore assurance that the factfinding process at his trial was not unduly impaired by adherence to the old standards.
46
In Johnson v. New Jersey, supra, the Court was called upon to determine whether the newly announced procedures in Miranda v. Arizona should be retroactively applied to upset final convictions based in part upon confessions obtained without the prior warnings required by Miranda. Aware that Miranda provided new safeguards against the possible use at trial of unreliable statements of the accused, we nonetheless concluded that the decision should not be retroactively applied.2 The probability that the truth-determining process was distorted by, and individuals were convicted on the basis of, coerced confessions was minimized, we found, by the availability of strict pre-Miranda standards to test the voluntariness of confessions. 384 U.S., at 730, 86 S.Ct., at 1779. In addition, we recognized that law enforcement agencies had justifiably relied on our prior rulings and that retroactive application would necessitate the wholesale release and subsequent retrial of vast numbers of prisoners. Id., at 731, 86 S.Ct.At 1779. Then, in statements unnecessary to our decision—since all of the convictions of the petitioners in Johnson had long since become final at the time of our decision in Miranda—we went on to say that our newly announced Miranda rules should be applied to trials begun after the date that decision was announced. Id., at 732, 86 S.Ct., at 1780.
47
The conclusion that the Miranda rules should be applied to post-Miranda trials made good sense, where criminal defendants were seeking to exclude direct statements made without prior warning of their rights. Exclusion of possibly unreliable pre-Miranda statements made in the inherently coercive atmosphere of in-custody interrogation, see Miranda v. Arizona, 384 U.S., at 457—458, 467, 470, 86 S.Ct., at 1618—1619, 1624, 1625, could be obtained at a relatively low cost. For, although the police might have relied in good faith on our prior rulings in interrogating defendants without first advising them of their rights, Miranda put the police on notice that pre-Miranda confessions obtained without prior warnings would be inadmissible at defendants' trials. Since defendants who had made pre-Miranda confessions had not yet gone to trial, and the police investigations into those cases were still fresh, Johnson envisioned 'no undue burden (being) imposed upon prosecuting authorities by requiring them to find evidentiary substitutes for statements obtained in violation of the constitutional protections afforded by Miranda.' Jenkins v. Delaware, 395 U.S. 213, 219—220, 89 S.Ct. 1677, 1681, 23 L.Ed.2d 253 (1969); see Johnson v. New Jersey, 384 U.S., at 732, 86 S.Ct., at 1780.
48
Application of the Miranda standards to the present case, however, presents entirely different problems. Unlike the situation contemplated in Johnson, the burden imposed upon law enforcement officials to obtain evidentiary substitutes for inadmissible 'fruits' will likely be substantial. The lower courts, confronted with the question of the application of Miranda to fruits, have provided differing answers on the admissibility issue.3 The police, therefore, could not reasonably have been expected to know that substitute evidence would be necessary. As a result, in a case such as the present one, in which law enforcement officials have relied on trial and appellate court determinations that fruits are admissible, a contrary ruling by this Court, coming years after the commission of the crime, would severely handicap any attempt to retry the defendant. The burden on law enforcement officers, in that circumstance, would be comparable to that in Jenkins v. Delaware, supra, where we declined to apply the Miranda rules to post-Miranda retrials of persons whose original trials were commenced prior to Miranda. There, we said:
49
'(C)oncern for the justifiable reliance of law enforcement officials upon pre-Miranda standards militates against applying Miranda to retrials . . .. As we stated in Stovall (v. Denno, supra), '(I)nquiry would be handicapped by the unavailability of witnesses and dim memories.' 388 U.S., at 300 (87 S.Ct. 1967 at 1971). The burden would be particularly onerous where an investigation was closed years prior to a retrial because law enforcement officials relied in good faith upon a strongly incriminating statement, admissible at the first trial, to provide the cornerstone of the prosecution's case.' 395 U.S., at 220, 89 S.Ct., at 1681 (footnote omitted).
50
Moreover, the element of unreliability—a legitimate concern in Johnson because of the inherently coercive nature of incustody interrogation—is of less importance when the admissibility of 'fruits' is at issue. There is no reason to believe that the coercive atmosphere of the station house will have any effect whatsoever on the trustworthiness of 'fruits.'
51
Since excluding the fruits of respondent's statements would not further the integrity of the factfinding process and would severely handicap law enforcement officials in obtaining evidentiary substitutes, I would confine the reach of Johnson v. New Jersey to those cases in which the direct statements of an accused made during a pre-Miranda interrogation were introduced at his post-Miranda trial. If Miranda is applicable at all to the fruits of statements made without proper warnings, I would limit its effect to those cases in which the fruits were obtained as a result of post-Miranda interrogations. Cf. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 148 (1969).4
52
Since I agree that the judgment of the Court of Appeals must be reversed, I concur in the judgment of the Court.5
53
Mr. Justice WHITE (concurring).
54
For the reasons stated in my dissent in that case, I continue to think that Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 16 L.Ed.2d 694 (1966), was illconceived and without warrant in the Constitution. However that may be, the Miranda opinion did not deal with the admissibility of evidence derived from in-custody admissions obtained without the specified warnings, and the matter has not been settled by subsequent cases.
55
In Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969), it appeared that petitioner, who was convicted of murder, had been arrested and interrogated in his home without the benefit of Miranda warnings. Among other things, petitioner admitted having a gun and told the police where it was hidden in the house. The gun was recovered and ballistic tests, which were admitted into evidence along with various oral admissions, showed that it was the gun involved in the murder. Petitioner's conviction was affirmed, the applicability of Miranda being rejected by the state courts. Petitioner brought the case here, urging in his petition for certiorari, which was granted, that the ballistic evidence was a fruit of an illegal interrogation—' the direct product of interrogation' without indispensable constitutional safeguards. His brief on the merits suggested that it was error under Miranda to admit into evidence either his oral admissions or the evidence of ballistic tests performed on the pistol, which was referred to as 'an illegally seized object.' This Court reversed the conviction but after referring to the ballistic evidence, went on to hold only that the admission into evidence of Orozco's statements made without benefit of Miranda warnings was fatal error. Although the issue was presented, the Court did not expressly deal with the admissibility of the ballistic tests and gave no intimation that the evidence was to be excluded at the anticipated retrial.
56
Miranda having been applied in this Court only to the exclusion of the defendant's own statements, I would not extend its prophylactic scope to bar the testimony of third persons even though they have been identified by means of admissions that are themselves inadmissible under Miranda. The arguable benefits from excluding such testimony by way of possibly deterring police conduct that might compel admissions are, in my view, far outweighed by the advantages of having relevant and probative testimony, not obtained by actual coercion, available at criminal trials to aid in the pursuit of truth. The same results would not necessarily obtain with respect to the fruits of involuntary confessions. I therefore concur in the judgment.
57
Mr. Justice DOUGLAS (dissenting).
58
In this case the respondent, incarcerated as a result of a conviction in a state court, was granted a writ of habeas corpus by the District Court. The basis for the writ was the introduction at respondent's trial of testimony from a witness whose identity was learned solely as a result of in-custody police interrogation of the respondent preceded by warnings which were deficient under the standards enunciated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The District Court concluded that 'the introduction by the prosecution in its case in chief of testimony of a third person which is admittedly the fruit of an illegally obtained statement by the (accused violates the accused's) Fifth Amendment rights.' 352 F.Supp. 266, 268 (E.D.Mich.1972). The Court of Appeals affirmed. 480 F.2d 927 (C.A.6 1973).
59
* Prior to interrogation, respondent was told of his right to the presence of counsel but he was not told of his right to have an attorney appointed should he be unable to afford one. Respondent is an indigent who has been represented at all times in both state and federal courts by court-appointed counsel in Miranda, supra, we said:
60
'The need for counsel in order to protect the privilege (against self-incrimination) exists for the indigent as well as the affluent. . . . While authorities are not required to relieve the accused of his proverty, they have the obligation not to take advantage of indigence in the administration of justice. . . .
61
'In order to fully apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him.' 384 U.S., at 472—473, 86 S.Ct., at 1627.
62
I cannot agree when the Court says that the interrogation here 'did not abridge respondent's constitutional privilege against compulsory self-incrimination, but departed only from the prophylactic standards later laid down by this Court in Miranda to safeguard that privilege.' Ante, at 446. The Court is not free to prescribe preferred modes of interrogation absent a constitutional basis. We held the 'requirement of warnings and waiver of rights (to be) fundamental with respect to the Fifth Amendment privilege,' 384 U.S., at 476, 86 S.Ct., at 1629, and without so holding we would have been powerless to reverse Miranda's conviction. While Miranda recognized that police need not mouth the precise words contained in the Court's opinion, such warnings were held necessary 'unless other fully effective means are adopted to notify the person' of his rights. Id., at 479, 86 S.Ct., at 1630. There is no contention here that other means were adopted. The respondent's statements were thus obtained 'under circumstances that did not meet constitutional standards for protection of the privilege (against self-incrimination).' Id., at 491, 86 S.Ct., at 1636 (emphasis added).
II
63
With the premise that respondent was subjected to an unconstitutional interrogation, there remains the question whether not only the testimony elicited in the interrogation but also the fruits thereof must be suppressed. Mr. Justice Holmes first articulated the 'fruits' doctrine in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). In that case the Government had illegally seized the petitioner's corporate books and documents. The Government photographed the items before returning them and used the photographs as a basis to subpoena the petitioner to produce the originals before the grand jury. The petitioner refused to comply and was cited for contempt. In reversing, the Court noted that '(t)he essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.' Id., at 392, 40 S.Ct., at 183.
64
The principle received more recent recognition in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). There one Toy had made statements to federal agents and the statements were held inadmissible against him. The statements led the agents to one Yee and at Yee's home the agents found narcotics which were introduced at trial against Toy. In reversing Toy's conviction the Court held that the narcotics discovered at Yee's home must be excluded just as Toy's statements which led to that discovery.
65
The testimony of the witness in this case was no less a fruit of unconstitutional police action than the photographs in Silverthorne or the narcotics in Wong Sun. The petitioner has stipulated that the identity and the whereabouts of the witness and his connection with the case were learned about only through the unconstitutional interrogation of the respondent. His testimony must be excluded to comply with Miranda's mandate that 'no evidence obtained as a result of interrogation (not preceded by adequate warnings) can be used against' an accused. 384 U.S., at 479, 86 S.Ct., at 1630 (emphasis added).
III
66
In Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), the Court held that statements obtained in violation of Miranda standards must be excluded from all trials occurring after the date of the Miranda decision. Mr. Justice BRENNAN suggests that Johnson be limited and that the fruits derived from unlawful pre-Miranda interrogations be admissible in trials subsequent to the Miranda decision. Though respondent's trial occurred subsequent to the Miranda decision, his interrogation preceded it. I disagree, as I disagreed in Johnson, that any defendant can be deprived of the full protection of the Fifth Amendment, as the Court has construed it in Miranda, based upon an arbitrary reference to the date of his interrogation or his trial.
67
In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the Court held the exclusionary rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), inapplicable to convictions which had become 'final' prior to the Mapp decision. As Mr. Justice Black, joined by me, noted, the result was as follows:
68
'Linkletter, convicted in the state court by use of 'unconstitutional evidence,' is today denied relief by the judgment of this Court because his conviction became 'final' before Mapp was decided. Linkletter must stay in jail; Miss Mapp, whose offense was committed before Linkletter's, is free. This different treatment of Miss Mapp and Linkletter points up at once the arbitrary and discriminatory nature of the judicial contrivance utilized here to break the promise of Mapp by keeping all people in jail who are unfortunate enough to have had their unconstitutional convictions affirmed before June 19, 1961.' 381 U.S., at 641, 85 S.Ct., at 1744 (dissenting opinion).
69
I find any such reference to the calendar in determining the beneficiaries of constitutional pronouncements to be a grossly invidious discrimination. Miranda was interrogated on March 13, 1963; Tucker was interrogated more than three years later in April 1966. I can conceive of no principled way to deprive Tucker of the constitutional guarantees afforded Miranda. The reason put forward for refusing to apply the strictures of Miranda to interrogations which preceded the decision is that the purpose of Miranda's rules is the deterrence of unconstitutional interrogation. 'The inference I gather from these repeated statements is that the rule is not a right or privilege accorded to defendants charged with crime but is a sort of punishment against officers in order to keep them from depriving people of their constitutional rights. In passing I would say that if that is the sole purpose, reason, object and effect of the rule, the Court's action in adopting it sounds more like lawmaking than construing the Constitution.' 381 U.S., at 649, 85 S.Ct., at 1748 (Black, J., dissenting). Miranda's purpose was not promulgation of judicially preferred standards for police interrogation, a function we are quite powerless to perform; the decision enunciated 'constitutional standards for protection of the privilege' against self-incrimination. 384 U.S., at 491, 86 S.Ct., at 1636. People who are in jail because of a State's used of unconstitutionally derived evidence are entitled to a new trial, with the safeguards the Constitution provides, without regard to when the constitutional violation occurred, when the trial occurred, or when the conviction became 'final.'
70
As Mr. Justice Black said in Linkletter: 'It certainly offends my sense of justice to say that a State holding in jail people who were convicted by unconstitutional methods has a vested interest in keeping them there that outweighs the right of persons adjudged guilty of crime to challenge their unconstitutional convictions at any time.' 381 U.S., at 653, 85 S.Ct., at 1750.
71
I would affirm the judgment below.
1
352 F.Supp. 266 (1972).
2
480 F.2d 927 (6 Cir. 1973).
3
Tr. of Prelim. Hearing 99.
4
Ibid.
5
Id., at 99—100.
6
Tr. of Trial 223.
7
Ibid.
8
Id., at 224.
9
Ibid.
10
Ibid.
11
19 Mich.App. 320, 172 N.W.2d 712 (1969).
12
385 Mich. 594, 189 N.W.2d 290 (1971).
13
352 F.Supp., at 268.
14
The Court has also held that comment on a defendant's silence or refusal to take the witness stand may be an impermissible penalty on exercise of the privilege. See Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).
15
For example in Bram v. United States, 168 U.S. 532, 542, 18 S.Ct. 183, 187, 42 L.Ed. 568 (1897), the Court stated:
'In criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment to the Constitution of the United States, commanding that no person 'shall be compelled in any criminal case to be a witness against himself."
As noted in the text, the privilege against compulsory self-incrimination was not held applicable against the States until Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964).
16
Wigmore states his objection in the following terms:
'Today in the United States confessions, and probably even lesser self-incriminating admissions, are excluded despite their trustworthiness if coerced. The policies leading to this recent extension of the confession rule are quite similar to those underlying the privilege against self-incrimination. It is thus not surprising that the privilege, with its unclear boundaries and apparently unending capacity for transmogrification and assimilation, is now sometimes invoked to effect exclusion even though the disclosure was not compelled from a person under legal compulsion. Distortion of the privilege to cover such situations is not necessary. If trustworthy confessions are to be excluded because coerced, it should be done frankly as an exception to the principle . . . that the illegality of source of evidence is immaterial. It should be done, as it usually is, on the ground that the combination of coercion and use of the evidence in the particular case violates the relevant constitutional due process clause.' Id., at 402. (Citations omitted.)
17
See n. 5, supra.
18
See nn. 3 and 4, supra.
19
In Wong Sun the police discovered evidence through statements made by the accused after he had been placed under arrest. This Court, finding that the arrest had occurred without probable cause, held that the derivative evidence could not be introduced against the accused at trial. For the reasons stated in the text we do not believe that Wong Sun controls the case before us.
20
The opinion also relied upon Mapp v. Ohio, 367 U.S. 643, 656, 81 S.Ct. 1684, 1692, 6 L.Ed.2d 1081 (1961); Tehan v. United States ex rel. Shott, 382 U.S. 406, 416, 86 S.Ct. 459, 465, 15 L.Ed.2d 453 (1966), and Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968). See 414 U.S., at 348, 94 S.Ct., at 620.
21
Brief for United States as Amicus Curiae, 31 et seq.; Brief for Respondent 9 et seq.
22
As previously noted, the defendant in Escobedo had repeatedly asked to see his lawyer who was available at the police station. Those requests were denied, and the defendant ultimately confessed. Thus, in direct contrast to the situation here, the defendant in Escobedo was told he did not have a right to see his lawyer, although he had expressly stated his desire to do so.
23
The Court has made clear that the truth or falsity of a statement is not the determining factor in the decision whether or not to exclude it. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). Thus a State which has obtained a coerced or involuntary statement cannot argue for its admissibility on the ground that other evidence demonstrates its truthfulness. Ibid. But it also seems clear that coerced statements have been regarded with some mistrust. The Court in Escobedo, for example, stated that 'a system of criminal law enforcement which comes to depend on the 'confession' will, in the long run, be less reliable and more subject to abuses' than a system relying on independent investigation, 378 U.S., at 488—489, 84 S.Ct., at 1764, 12 L.Ed.2d 977. The Court then cited several authorities concerned with false confessions. Id., at 489 n. 11, 84 S.Ct., at 1764. Although completely voluntary confessions may, in many cases, advance the cause of justice and rehabilitation, coerced confessions, by their nature, cannot serve the same ends.
24
Tr. of Trial 226—234.
25
It has been suggested that courts should exclude evidence derived from 'lawless invasions of the constitutional rights of citizens,' Terry v. Ohio, 392 U.S., at 13, 88 S.Ct., at 1875, in recognition of 'the imperative of judicial integrity.' Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669 (1960). This rationale, however, is really an assimilation of the more specific rationales discussed in the text of this opinion, and does not in their absence provide an independent basis for excluding challenged evidence.
26
Our Brother BRENNAN in his opinion concurring in the judgment treats the principal question here simply as a lineal descendant of the one decided in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), to be analyzed only in terms of the retroactivity framework established in that and subsequent decisions. While his approach has a beguiling simplicity, we believe it marks a significant and unsettling departure from the past practice of the Court in this area. Our retroactivity cases, from Linkletter v. Walker, supra, to Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973), all have in common a particular factual predicate: a previous constitutional decision of this Court governs the facts of an earlier decided case unless the constitutional decision is not to have retroactive effect. The doctrine of retroactivity does not modify the substantive scope of the constitutional decision but rather determines the point in time when it is held to apply.
That common factual predicate is absent here. No defendant in Miranda sought to block evidence of the type challenged in this case, and the holding of Miranda, even if made fully retroactive, would not therefore resolve the question of whether Henderson's testimony must also be excluded at trial. Contrary, therefore, to the suggestion in our Brother's opinion that the question here is whether to 'limit the effect of Johnson v. New Jersey,' post, at 454 n. 1, Johnson has never been thought controlling on the question of fruits, for the simple reason that the parent Miranda case did not reach that issue.
Our Brother BRENNAN'S method of disposition is to determine in the present case the retroactivity of a holding which the Court has yet to make. He would say, in effect, that if the Court should later determine that Miranda requires exclusion of fruits such as the testimony of Henderson, nonetheless that determination shall not be applied retroactively. But this approach wholly subverts the heretofore established relationship between the parent case and the subsidiary case determining whether or not to apply the parent case
retroactively. Under the framework of the analysis established in Linkletter, supra, and in subsequent cases, it would seem indispensable to understand the basis for a constitutional holding of the Court in order to later determine whether that holding should be retroactive. Yet ex hypothesi our Brother has no such analysis available, since the case has yet to be decided. Cases which subsequently determine the retroactivity of a constitutional holding have given the Court enough occasion for concern without substantially increasing the difficulty of that type of decision by making it before, rather than after, the constitutional holding.
1
Although the petition for certiorari did not urge us to limit the effect of Johnson v. New Jersey, this issue was raised in petitioner's brief as well as in the amicus curiae brief of the State of California, filed in support of petitioner. See Mapp v. Ohio, 367 U.S. 643, 646 n. 3, 81 S.Ct. 1684, 1686, 6 L.Ed.2d 1081 (1961); Stovall v. Denno, 388 U.S. 293, 294 n. 1, 87 S.Ct. 1967, 1968, 18 L.Ed.2d 1199 (1967).
2
In Johnson we commented—as we have on a number of occasions in deciding to apply new constitutional rules of criminal procedure retroactively—that 'we do not disparage a constitutional guarantee in any manner by declining to apply it retroactively.' 384 U.S., at 728, 86 S.Ct., at 1778; Michigan v. Payne, 412 U.S. 47, 55 n. 10, 93 S.Ct. 1966, 1971, 36 L.Ed.2d 736 (1973). This is so, because a prospective application of new rules will aften serve important purposes other than the correction of serious flaws in the truth-determining process.
The Fifth Amendment privilege against compulsory self-incrimination—guaranteed full effectuation by the Miranda rules—serves a variety of significant purposes not relevant to the truth-determining process. See Tehan v. United States ex rel. Shott, 382 U.S. 406, 415—416, 86 S.Ct. 459, 464—465, 15 L.Ed.2d 453 (1966). A number of these purposes were catalogued in Murphy v. Waterfront Comm'n, 378 U.S. 52, 55, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678 (1964):
'The privilege against self-incrimination 'registers an important advance in the development of our liberty—'one of the great landmarks in man's struggle to make himself civilized." Ullmann v. United States, 350 U.S. 422, 426 (76 S.Ct. 497, 500, 100 L.Ed. 511). It reflects many of our fundamental values and most noble aspirations: our unwillingess to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates 'a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load,' 8 Wigmore, Evidence (McNaughton rev., 1961), 317; our
respect for the inviolability of the human personality and of the right of each individual 'to a private enclave where he may lead a private life,' United States v. Grunewald, 2 Cir., 233 F.2d 556, 581—582 (Frank, J., dissenting), rev'd 353 U.S. 391 (77 S.Ct. 963, 1 L.Ed.2d 931); our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes 'a shelter to the guilty,' is often 'a protection to the innocent.' Quinn v. United States, 349 U.S. 155, 162 (75 S.Ct. 668, 673, 99 L.Ed. 964).' (Footnotes omitted.)
3
Compare the decisions of the Michigan courts in the instant case, 19 Mich.App. 320, 172 N.W.2d 712 (1969), and 385 Mich. 594, 189 N.W.2d 290 (1971), with United States v. Cassell, 452 F.2d 533 (CA7 1971), and People v. Peacock, 29 A.D.2d 762, 287 N.Y.S.2d 166 (1968).
4
Three approaches have been taken in deciding what cases should be affected by prospective application of new constitutional rules of criminal procedure. In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the Court held the exclusionary rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081
(1961), applicable to all cases in which direct review had not come to an end at the time Mapp was announced. See also Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966). That approach, as we have observed, was abandoned in Johnson v. New Jersey, where we stated that the Miranda rules were applicable to all trials commenced after the date of that decision. In more recent decisions, we have regarded the cutoff point as that at which law enforcement officials could first begin to guide their conduct in accordance with our new rules. Thus, in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), the confrontation rulings of 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), were made applicable to cases in which the confrontations took place after the date of those decisions, and in Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969), the exclusionary ruling of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), was made applicable only to cases in which the search and seizure took place after the announcement of Katz. See also Michigan v. Payne, 412 U.S. 47, 57 n. 15, 93 S.Ct. 1966, 1972, 36 L.Ed.2d 736 (1973); Williams v. United States, 401 U.S. 646, 656—657, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971). But cf. Fuller v. Alaska, 393 U.S. 80, 81, 89 S.Ct. 61, 62, 21 L.Ed.2d 212 (1968) (holding that Lee v. Florida, 392 U.S. 378, 88 S.Ct. 2096, 20 L.Ed.2d 1166 (1968), which ruled evidence seized in violation of § 605 of the Federal Communications Act, 47 U.S.C. § 605, inadmissible in state trials, applicable to all cases in which the evidence was introduced after the date of decision in Lee).
The trend of our decisions since Johnson has thus been toward placing increased emphasis upon the point at which law enforcement personnel initially relied upon the discarded constitutional standards. See Jenkins v. Delaware, 395 U.S. 213, 218 and n. 7, 89 S.Ct. 1677, 1680, 23 L.Ed.2d 253 (1969). As has been noted by an eminent judicial authority such an emphasis is wholly consistent with the underlying rationale for prospective application of new rules, i.e., justified reliance upon prior judicial standards. Schaefer, The Control of 'Sunbursts': Techniques of Prospective Overruling, 42 N.Y.U.L.Rev. 631, 645—646 (1967).
5
My Brother REHNQUIST argues that this concurrence 'marks a significant and unsettling departure from the past practice of the Court' in respect of retroactivity. Ante, at 452 n. 26. He argues that Miranda did not decide the question of the admissibility of fruits, and therefore that there is no 'parent' decision for retroactive application. But the assumption upon which the concurrence rests,
namely, that Miranda requires the exclusion of fruits, necessarily treats Miranda as a 'parent' decision. For the assumption is that exclusion is necessary to give full effect to the purposes and policies underlying the Miranda rules and to its holding that 'unless and until (the Miranda) warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against (the defendant).' 384 U.S., at 479, 86 S.Ct., at 1630, 16 L.Ed.2d 694 (emphasis added). It necessarily follows that Miranda itself is the 'parent' decision.
| 01
|
417 U.S. 402
94 S.Ct. 2274
41 L.Ed.2d 159
Hubert WHEELER et al., Petitioners,v.Anna BARRERA et al.
No. 73—62.
Argued Jan. 16, 1974.
Decided June 10, 1974.
Judgment Modified June 16, 1975.
See 95 S.Ct. 2625.
Syllabus
Title I of the Elementary and Secondary Education Act of 1965 (the Act) provides for federal funding of special programs for educationally deprived children in both public and private schools. Respondents, parents of children attending nonpublic schools in Kansas City, Mo., brought this class action, alleging that petitioner state school officials arbitrarily and illegally were approving Title I programs that deprived eligible nonpublic school children of services comparable to those offered eligible public school children, and seeking injunctive and other relief. Petitioners answered that the aid sought by respondents exceeded Title I's requirements and contravened the State's Constitution and state law and public policy. First Amendment issues were also raised. The District Court denied relief. The Court of Appeals reversed and remanded, holding that: petitioners were violating the requirement of the Act and implementing regulations that educationally deprived nonpublic school children be afforded a program comparable to that provided in public schools; if on-the-premises special teaching services are furnished public school children, then comparable programs must be provided nonpublic school children; the state constitutional provision barring use of 'public' school funds in private schools did not apply to Title I funds; the question whether Title I funds were 'public' within the meaning of the State Constitution was governed by federal law; and, since no plan for on-the-premises instruction in nonpublic schools had yet been implemented, the court would refuse to pass on petitioners' claims that the Establishment Clause of the First Amendment would be violated if Title I does require or permit such instruction. Held:
1. At this stage of the proceedings this Court cannot reach and decide whether Title I requires the assignment of publicly employed teachers to provide remedial instruction during regular school hours on the premises of private schools attended by Title I eligible students. Pp. 415—426.
(a) While the Court of Appeals correctly ruled that the District Court erred in denying relief where it clearly appeared that petitioners had failed to comply with the Act's comparability requirement, the Court of Appeals' opinion is not to be read to the effect that petitioners must submit and approve plans that employ the use of Title I teachers on private school premises during regular school hours. P. 415.
(b) That court erred in holding that federal law governed the question whether on-the-premises private school instruction is permissible under Missouri law, since Title I evinces a clear intention that state constitutional spending proscriptions not be preempted as a condition of accepting federal funds. The key issue whether federal aid is money 'donated to any state fund for public school purposes' within the meaning of the Missouri Constitution is purely a question of state and not federal law, and by characterizing the problem as one involving 'federal' and not 'state' funds, and then concluding that federal law governs, the Court of Appeals in effect nullified the Act's policy of accommodating state law. Pp. 415—419.
(c) It was unnecessary for the Court of Appeals to reach the issue whether on-the-premises nonpublic school instruction is permissible under state law, since in view of the fact that Title I does not obligate the State to provide such instruction but only to provide 'comparable' (not identical) services, the illegality of such instruction under state law would not provide a defense to respondents' charge of noncompliance with Title I. Pp. 419—420.
(d) On remand, petitioners and the local school agency have the option to provide for on-the-premises instruction for nonpublic school children, but if they do not choose this method or if it turns out that state law prevents its use, then the following options remain: (1) they may approve a plan that does not utilize nonpublic school on-the-premises instruction but that still complies with the Act's comparability requirement; (2) they may submit a plan that eliminates on-the-premises instruction in public schools and may resort, instead, to other means, such as neutral sites or summer programs; or (3) they may choose not to participate at all in the Title I program. Pp. 426—427.
2. The Court of Appeals properly declined to pass on the First Amendment issue, since, no order requiring on-the-premises nonpublic school instruction having been entered, the matter was not ripe for review. Pp. 426—427.
3. While under the Act respondents are entitled to comparable services and therefore to relief, they are not entitled to any particular form of service, and it is the role of state and local agencies, not of the federal courts, at least at this stage, to formulate a suitable plan. Pp. 427—428.
475 F.2d 1338, affirmed.
Leo Pfeffer, New York City, for petitioners.
Thomas M. Sullivan, Kansas City, Mo., for respondents.
1
Daniel M. Friedman, Washington, D.C., for the United States, as amicus curiae, by special leave of Court.
2
[Amicus Curiae Information from page 404 intentionally omitted]
Mr. Justic
3
e BLACKMUN delivered the opinion of the Court.
4
Title I of the Elementary and Secondary Education Act of 1965, as amended, 20 U.S.C. § 241a et seq., provides for federal funding of special programs for educationally deprived children in both public and private schools.
5
This suit was instituted on behalf of parochial school students who were eligible for Title I benefits and who claimed that the public school authorities in their area, in violation of the Act, failed to provide adequate Title I programs for private school children as compared with those programs provided for public school children. The defendants answered that the extensive aid sought by the plaintiffs exceeded the requirements of Title I and contravened the State's Constitution and state law and public policy. First Amendment rights were also raised by the parties. The District Court, concluding that the State had fulfilled its Title I obligations, denied relief. The United States Court of Appeals for the Eighth Circuit, by a divided vote, reversed. 475 F.2d 1338 (1973). We granted certiorari to examine serious questions that appeared to be present as to the scope and constitutionality of Title I. 414 U.S. 908, 94 S.Ct. 228, 38 L.Ed.2d 145 (1973).
6
* Title I is the first federal-aid-to-education program authorizing assistance for private school children as well as for public school children. The Congress, by its statutory declaration of policy1 and otherwise, recognized that all children from educationally deprived areas do not necessarily attend the public schools, and that, since the legislative aim was to provide needed assistance to educationally deprived children rather than to specific schools, it was necessary to include eligible private schools children among the beneficiaries of the Act.2
7
Since the Act was designed to be administered by local public education officials,3 a number of problems naturally arise in the delivery of services to eligible private school pupils. Under the administrative structure envisioned by the Act, the primary responsibility for designing and effectuating a Title I program rests with what the Act and the implementing regulations describe as the 'local educational agency.'4 This local agency submits to the 'State educational agency'5 a proposed program designed to meet the special educational needs of educationally deprived children in school attendance areas with high concentrations of children from low-income families. The state agency then must approve the local plan and, in turn, forward the approved proposal to the United States Commissioner of Education, who has the ultimate responsibility for administering the program and dispensing the appropriated and allocated funds. In order to receive state approval, the proposed plan, among other requirements, must be designed to provide the eligible private school students services that are 'comparable in quality, scope, and opportunity for participation to those provided for public school children with needs of equally high priority.' United States Office of Education (USOE) Program Guide No. 44, 4.5 (1968),6 reproduced in Title I ESEA, Participation of Private School Children—A Handbook for State and Local School Officials, U.S. Dept. of Health, Education, and Welfare, Publication No. (OE) 72—62, p. 41 (1971) (hereinafter referred to as the Handbook).
8
The questions that arise in this case concern the scope of the State's duty to insure that a program submitted by a local agency under Title I provides 'comparable' services for eligible private school children.
II
9
Plaintiff-respondents are parents of minor children attending elementary and secondary nonpublic schools in the inner city area of Kansas City, Missouri. They instituted this class action in the United States District Court for the Western District of Missouri on behalf of themselves and their children, and others similarly situated, alleging that the defendant-petitioners, the then State Commissioner of Education and the members of the Missouri Board of Education, arbitrarily and illegally were approving Title I programs that deprived eligible nonpublic school children of services comparable to those offered eligible public school children. The complaint sought an injunction restraining continued violations of the Act and an accounting and restoration of some $13,000,000 in Title I funds allegedly misapplied from 1966 to 1969.
10
The District Court initially dismissed the complaint on the alternative grounds of failure to exhaust state remedies and abstention. The Court of Appeals reversed this dismissal and remanded the case for trial. 441 F.2d 795 (CA8 1971). It observed: '(W)e indicate no opinion on the merits of the alleged noncompliance by the state officials.' Id., at 801.
11
On remand, the District Court found that while most of the Title I funds allocated to public schools in Missouri were used 'to employ teachers to instruct in remedial subjects,' the petitioners had refused 'to approve any applications allocating money for teachers in parochial schools during regular school hours.' Pet. for Cert. A40. The court did find that petitioners in some instances had approved the use of Title I money 'to provide mobile educational services and equipment, visual aids, and educational radio and television in parochial schools. Teachers for after-school classes, weekend classes, and summer school classes, all open to parochial school pupils, have all been approved.' Id., at A40—A41.
12
In what perhaps may be described as something less than full cooperation by both sides, the possibility of providing 'comparable' services was apparently frustrated by the fact that many parochial schools would accept only services in the form of assignment of federally funded Title I teachers to teach in those schools during regular school hours. At the same time, the petitioners refused to approve any program providing for on-the-premises instruction on the grounds that it was forbidden under both Missouri law and the First Amendment and, furthermore, that Title I did not require it. Since the larger portion (over 65%) of Title I funds allocated to Missouri has been used to provide personnel for remedial instruction, the effect of this stalemate is that substantially less money per pupil has been expended for eligible students in private schools, and that the services provided in those schools in no sense can be considered 'comparable.'7
13
Faced with this situation, the District Court recognized that '(t)his head-on conflict . . . has resulted in an undoubtedly inequitable expenditure of Title I funds between educationally deprived children in public and nonpublic schools in some local school districts in the state.' Id., at A41.
14
Nonetheless, the District Court denied relief. It reasoned that since the petitioners were under no statutory obligation to provide on-the-premises nonpublic school instruction, the failure to provide that instruction could not violate the Act. The court further reasoned that since the petitioners apparently had approved all programs 'except those requesting salaried teachers in the nonpublic schools,' id., at A43, they had fulfilled their commitment. The court did not directly consider whether programs in effect without on-the-premises private school instruction complied with the comparability requirement despite gross disparity in the services delivered.
15
The Court of Appeals reversed. It traced the legislative history of Title I, examined the language of the statute and the regulations, and noted 'that the Act and the regulations require a program for educationally deprived nonpublic school children that is comparable in quality, scope and opportunity, which may or may not necessarily be equal in dollar expenditures to that provided in the public schools.' 475 F.2d, at 1344. The court then observed that the Act does not mandate that services take any particular form and that, within the confines of the comparability requirement, the Act left to the state and local agencies the task of designing a program best suited to meet the particularized needs of both the public school children and the nonpublic school children in the area. After reviewing the unique situation existing in Missouri, where funds were grossly malapportioned due to the refusal to employ either dual enrollment or Title I teachers on private school premises,8 the court concluded that the petitioners were in violation of the comparability requirement: special teaching services, as contemplated within the Act and regulations, to be furnished by the public agency on private as well as public school premises. In other words, we think it clear that the Act demands that if such special services are furnished public school children, then comparable programs, if needed, must be provided the disadvantaged private school child.' Id., at 1353.
16
In response to petitioners' argument that Missouri law forbids sending public school teachers into private schools, the court held that the state constitutional provision barring use of 'public' school funds in private schools had no application to Title I funds. The court reasoned that although the Act was generally to be accommodated to state law, the question whether Title I funds were 'public,' within the meaning of the Missouri Constitution,9 must necessarily be decided by federal law. Id., at 1351—1353. Finally, the court refused to pass on petitioners' claim that the Establishment Clause of the First Amendment would be violated if Title I, in fact, does require or permit service by public school teachers on private school premises. The reason stated for the court's refusal was that since no plan had yet been implemented, the court 'must refrain from passing upon important constitutional questions on an abstract or hypothetical basis.' Id., at 1354.
17
The dissent argued that although Title I permits the assignment of Title I teachers to nonpublic schools, it does not mandate that assignment, and that if the Act is to be read as embracing such a mandate, it would present substantial First Amendment problems that could not be avoided. Id., at 1358—1359.10
III
18
In this Court the parties are at odds over two issues: First, whether on this record Title I requires the assignment of publicly employed teachers to provide remedial instruction during regular school hours on the premises of private schools attended by Title I eligible students, and, second, whether that requirement, if it exists, contravenes the First Amendment. We conclude that we cannot reach and decide either issue at this stage of the proceedings.
19
A. Title I requirements. As the case was presented to the District Court, petitioners clearly had failed to meet their statutory commitment to provide comparable services11 to children in nonpublic schools. The services provided to the class of children represented by respondents were plainly inferior, both qualitatively and quantitatively, and the Court of Appeals was correct in ruling that the District Court erred in refusing to order relief. But the opinion of the Court of Appeals is not to be read to the effect that petitioners must submit and approve plans that employ the use of Title I teachers on private school premises during regular school hours.
20
The legislative history, the language of the Act, and the regulations clearly reveal the intent of Congress to place plenary responsibility in local and state agencies for the formulation of suitable programs under the Act. There was a pronounced aversion in Congress to 'federalization' of local educational decisions.
21
'It is the intention of the proposed legislation not to prescribe the specific types of programs or projects that will be required in school districts. Rather, such matters are left to the discretion and judgment of the local public educational agencies since educational needs and requirements for strengthening educational opportunities for educationally deprived elementary and secondary school pupils will vary from State to State and district to district.' H.R.Rep. No. 143, 89th Cong., 1st Sess., 5 (1965); S.Rep. No. 146, 89th Cong., 1st Sess., 9 (1965), U.S.Code Cong. & Admin.News 1965, p. 1446.
22
And 20 U.S.C. § 1232a provides, inter alia:
23
'No provision of . . . the Elementary and Secondary Education Act of 1965 . . . shall be construed to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over the curriculum, program of instruction, administration, or personnel of any educational institution, school, or school system . . ..'
24
Although this concern was directed primarily at the possibility of HEW's assuming the role of a national school board, it has equal application to the possibility of a federal court's playing an overly active role in supervising the manner of Title I expenditures.
25
At the outset, we believe that the Court of Appeals erred in holding that federal law governed the question whether one-the-premises private school instruction is permissible under Missouri law. Whatever the case might be if there were no expression of specific congressional intent,12 Title I evinces a clear intention that state constitutional spending proscriptions not be pre-empted as a condition of accepting federal funds.13 The key issue, namely, whether federal aid is money 'donated to any state fund for public school purposes,' within the meaning of the Missouri Constitution, Art. 9, § 5, is purely a question of state and not federal law. By characterizing the problem as one involving 'federal' and not 'state' funds, and then concluding that federal law governs, the Court of Appeals, we feel, in effect nullified the Act's policy of accommodating state law. The correct rule is that the 'federal law' under Title I is to the effect that state law should not be disturbed. If it is determined, ultimately, that the petitioners' position is a correct exposition of Missouri law, Title I requires, not that that law be preempted, but, rather, that it be accommodated by the use of services not proscribed under state law. The question whether Missouri law prohibits the use of Title I funds for on-the-premises private school instruction is still unresolved. See n. 9, supra.
26
Furthermore, in the present posture of this case, it was unnecessary for the federal court even to reach the issue whether on-the-premises parochial school instruction is permissible under state law. The state-law question appeared in the case by way of petitioners' defense that it could not provide on-the-premises services because it was prohibited by the State's Constitution. But, as is discussed more fully below, the State is not obligated by Title I to provide on-the-premises instruction. The mandate is to provide 'comparable' services. Assuming arguendo, that state law does prohibit on-the-premises instruction, this would not provide a defense to respondents' complaint that comparable services are not being provided. The choice of programs is left to the State with the proviso that comparable (not identical) programs are also made available to eligible private school children. If one form of services to parochial school children is rendered unavailable because of state constitutional proscriptions, the solution is to employ an acceptable alternative form. In short, since the illegality under state law of one-the-premises instruction would not provide a defense to respondents' charge of noncompliance with Title I, there was no reason for the Court of Appeals to reach this issue. By deciding that on-the-premises instruction was not barred by state law, the court in effect issued an advisory opinion. Even apart from traditional policies of abstention and comity, it was unnecessary to decide this question in the current posture of the case.
27
The Court of Appeals properly recognized, as we have noted, that petitioners failed to meet their broad obligation and commitment under the Act to provide comparable programs.14 'Comparable,' however, does not mean 'identical,' and, contrary to the assertions of both sides, we do not read the Court of Appeals' opinion or, for that matter, the Act itself, as ever requiring that identical services be provided in nonpublic schools.15 Congress recognized that the needs of educationally deprived children attending nonpublic schools might be different from those of similar children in public schools; it was also recognized that in some States certain programs for private and parochial schools would be legally impossible because of state constitutional restrictions, most notably in the church-state area. See n. 9, supra.16 Title I was not intended to override these individualized state restrictions. Rather, there was a clear intention that the assistance programs be designed on local levels so as to accommodate the restrictions.
28
Inasmuch as comparable, and not identical, services are required, the mere fact that public school children are provided on-the-premises Title I instruction does not necessarily create an obligation to make identical provision for private school children.17 Congress expressly recognized that different and unique problems and needs might make it appropriate to utilize different programs in the private schools. A requirement of identity would run directly counter to this recognition. It was anticipated, to be sure, that one of the options open to the local agency in designing a suitable program for private school children was the provision of on-the-premises instruction,18 and on remand this is an option open to these petitioners and the local agency. If, however, petitioners choose not to pursue this method, or if it turns out that state law prevents its use, three broad options still remain:
29
First, the State may approve plans that do not utilize on-the-premises private school Title I instruction but, nonetheless, still measure up to the requirement of comparability. Respondents appear to be arguing here that it is impossible to provide 'comparable' services if the public schools receive on-the-premises Title I instruction while private school children are reached in an alternative method. In support of their position, respondents argue: 'The most effective type of services is that provided by a teacher or other specialist during regular school hours. There is nothing comparable to the services of personnel except the services of personnel.' Brief for Respondents 49. In essence, respondents are asking this Court to hold, as a matter of federal law, that one mode of delivering remedial Title I services is superior to others. To place on this Court, or on any federal court, the responsibility of ruling on the relative merits of various possible Title I programs seriously misreads the clear intent of Congress to leave decisions of that kind to the local and state agencies. It is unthinkable, both in terms of the legislative history and the basic structure of the federal judiciary, that the courts be given the function of measuring the comparative desirability of various pedagogical methods contemplated by the Act.
30
In light of the uncontested statutory proscription in Missouri against dual enrollment, it may well be a significant challenge to these petitioners and the local agencies in their State to devise plans that utilize on-the-premises public school instruction and, at the same time, forgo on-the-premises private school instruction. We cannot say, however, that this is an impossibility; by relying upon 'the initiative of school administrators to develop a program that would meet the Federal (comparability) requirements,' Handbook 20, it may well be possible to develop and submit an acceptable plan under Title I.
31
Of course, the cooperation and assistance of the officials of the private school are obviously expected and required in order to design a program that is suitable for the private school. It is clear, however, that the Act places ultimate responsibility and control with the public agency, and the overall program is not to be defeated simply because the private school refuses to participate unless the aid is offered in the particular form it requests. The private school may refuse to participate if the local program does not meet with its approval. But the result of this would then be that the private school's eligible children, the direct and intended beneficiaries of the Act, would lose. The Act, however, does not give the private school a veto power over the program selected by the local agency.19
32
In sum, although it may be difficult, it is not impossible under the Act to devise and implement a legal local Title I program with comparable services despite the use of on-the-premises instruction in the public schools but not in the private schools. On the facts of this case, petitioners have been approving plans that do not meet this requirement, and certainly, if public school children continue to receive on-the-premises Title I instruction, petitioners should not approve plans that fail to make a genuine effort to employ comparable alternative programs that make up for the lack of on-the-premises instruction for the nonpublic school children. A program which provides instruction and equipment to the public school children and the same equipment but no instruction to the private school children cannot, on its face, be comparable. In order to equalize the level and quality of services offered, something must be substituted for the private school children. The alternatives are numerous.20 Providing nothing to fill the gap, however, is not among the acceptable alternatives.
33
Second, if the State is unwilling or unable to develop a plan which is comparable, while using Title I teachers in public but not in private schools, it may develop and submit an acceptable plan which eliminates the use of on-the-premises instruction in the public schools, and instead, resorts to other means, such as neutral sites or summer programs that are less likely to give rise to the gross disparity present in this case.
34
Third, and undoubtedly least attractive for the educationally deprived children, is nonparticipation in the program. Indeed, under the Act, the Commissioner, subject to judicial review, 20 U.S.C. § 241k, may refuse to provide funds if the State does not make a bona fide effort to formulate programs with comparable services. 20 U.S.C. § 241j.
35
B. First Amendment. The second major issue is whether the Establishment Clause of the First Amendment prohibits Missouri from sending public school teachers paid with Title I funds into parochial schools to teach remedial courses. The Court of Appeals declined to pass on this significant issue, noting that since no order had been entered requiring on-the-premises parochial school instruction, the matter was not ripe for review. We agree. As has been pointed out above, it is possible for the petitioners to comply with Title I without utilizing on-the-premises parochial school instruction. Moreover, even if, on remand, the state and local agencies do exercise their discretion in favor of such instruction, the range of possibilities is a broad one and the First Amendment implications may vary according to the precise contours of the plan that is formulated. For example, a program whereby a former parochial school teacher is paid with Title I funds to teach full time in a parochial school undoubtedly would present quite different problems than if a public school teacher, solely under public control, is sent into a parochial school to teach special remedial courses a few hours a week. At this time we intimate no view as to the Establishment Clause effect of any particular program.
36
The task of deciding when the Establishment Clause is implicated in the context of parochial school aid has proved to be a delicate one for the Court. Usually it requires a careful evaluation of the facts of the particular case. See, e.g., Lemon v. Kurtzman, 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). It would be wholly inappropriate for us to attempt to render an opinion on the First Amendment issue when no specific plan is before us. A federal court does not sit to render a decision on hypothetical facts, and the Court of Appeals was correct in so concluding.
37
The Court of Appeals disposed of the case as follows:
38
'The case is remanded to the district court with directions to enjoin the defendants from further violation of Title I of ESEA, and it is further ordered that the court retain continuing jurisdiction of the litigation for the purpose of requiring, within reasonable time limits, the imposition and application of guidelines which will comport with Title I and its regulations. Such guidelines must provide the lawful means and machinery for effectively assuring educationally disadvantaged non-public school children in Missouri participation in a meaningful program as contemplated within the Act which is comparable in size, scope and opportunity to that provided eligible public school children. Such guidelines shall be incorporated into an appropriate injunctive decree by the district court.' 475 F.2d, at 1355 1356 (footnotes omitted).
39
We affirm this disposition with the understanding that petitioners will be given the opportunity to submit guidelines insuring that only those projects that comply with the Act's requirements and this opinion will be approved and submitted to the Commission. It is also to be understood that the District Court's function is not to decide which method is best, or to order that a specific form of service be provided. Rather, the District Court is simply to assure that the state and local agencies fulfill their part of the Title I contract if they choose to accept Title I funds. Cf. Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974). The comparability mandate is a broad one, and in order to implement the overriding concern with localized control of Title I programs, the District Court should make every effort to defer to the judgment of the petitioners and of the local agency. Under the Act, respondents are entitled to comparable services, and they are, therefore, entitled to relief. As we have stated repeatedly herein, they are not entitled to any particular form of service, and it is the role of the state and local agencies, and not of the federal courts, at least at this stage, to formulate a suitable plan.
40
On this basis, the judgment of the Court of Appeals is affirmed.
41
It is so ordered.
42
Affirmed.
43
Mr. Justice MARSHALL concurs in the result.
44
Mr. Justice POWELL, concurring.
45
The Court holds that under Title I of the Elementary and Secondary Education Act of 1965, as amended, 20 U.S.C. § 241a et seq., federal courts may not ignore state-law prohibitions against the use of publicly employed teachers in private schools, ante, at 416—417, that Title I does not mandate on-the-premises instruction in private schools, ante, at 419, and that Title I does not require that services to be provided in private schools be identical in all respects to those offered in public schools. Ante, at 420—421. It is thus unnecessary to decide whether the assignment of publicly employed teachers to provide instruction in sectarian schools would contravene the Establishment Clause of the First Amendment. Ante, at 2282. On that basis, I join the Court's opinion. I would have serious misgivings about the constitutionality of a statute that required the utilization of public school teachers in sectarian schools. See Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973).
46
Mr. Justice WHITE, concurring in the judgment.
47
As I read the majority opinion, the Court understands well enough that Title I funds are being used in Missouri to pay the salaries of teachers giving special instruction on public school premises, that the State is obligated to furnish comparable service to private schools, and that the State has not satisfied the comparability requirement. It must do so if it is to continue to use Title I funds in the manner they are now being used.
48
The Court intimates no opinion as to whether using federal funds to pay teachers giving special instruction on private school premises would be constitutional. It suggests, however, that there may be other ways of satisfying the comparability requirement that the State should consider; and unless the State is being asked to chase rainbows, it is implied that there are programs and services comparable to on-the-premises instruction that the State could furnish private schools without violating the First Amendment. I would have thought that any such arrangement would be impermissible under the Court's recent cases construing the Establishment Clause. Not having joined those opinions, I am pleasantly surprised by what appears to be a suggestion that federal funds may in some respects be used to finance nonsectarian instruction of students in private elementary and secondary schools. If this is the case, I suggest that the Court should say so expressly. Failing that, however, I concur in the judgment.
49
Mr. Justice DOUGLAS, dissenting.
50
The case comes to us in an attractive posture, as the Act of Congress is in terms aimed to help 'educationally deprived' children, whether they are in public or parochial schools, and I fear the judiciary has been seduced. But we must remember that '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.' Committee for Public Education v. Nyquist, 413 U.S. 756, 774, 93 S.Ct. 2955, 2966, 37 L.Ed.2d 948.
51
All education in essence is aimed to help children, whether bright or retarded. Schools do not exist—whether public or parochial—to keep teachers employed. Education is a skein with many threads—from classical Greek to Latin, to grammar, to philosophy, to science, to athletics, to religion. There might well be political motivation to use federal funds to make up deficits in any part of a school's budget or to strengthen it by financing all or a part of any sector of educational activity.
52
There are some who think it constitutionally wise to do so; and others who think it is constitutionally permissible. But the First Amendment says: 'Congress shall make no law respecting an establishment of religion.' In common understanding there is no surer way of 'establishing' an institution than by financing it. That was true at the time of the adoption of the First Amendment. Madison, one of its foremost authors, fought the battle in Virginia where the per capita minimal levy on each person was no more than three pence. Yet if the State could finance a church at three pence per capita, the principle of 'establishment' would be approved and there would be no limit to the amount of money the Government could add to church coffers. That was the teaching of his Remonstrance.1 As Mr. Justice Black stated it, '(n)o 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.' Everson v. Board of Education, 330 U.S. 1, 16, 67 S.Ct. 504, 511, 91 L.Ed. 711.2
53
Parochial schools are adjuncts of the church established at a time when state gvernments were highly discriminatory against some sects by introducing religious training in the public schools. The tale has been told often;3 and there is no need to repeat it here. Parochial schools are tied to the proclamation and inculcation of a particular religious faith—sometimes Catholic, sometimes Presbyterian, sometimes Anglican, sometimes Lutheran, and so on.
54
The emanations from the Court's opinion are, as suggested by Mr. Justice WHITE, at war with our prior decisions. Federal financing of an apparently nonsectarian aspect of parochial school activities, if allowed, is not even a subtle evasion of First Amendment prohibitions. The parochial school is a unit; its budget is a unit; pouring in federal funds for what seems to be a nonsectarian phase of parochial school activities 'establishes' the school so that in effect, if not in purpose, it becomes stronger financially and better able to proselytize its particular faith by having more funds left over for that objective. Allowing the State to finance the secular part of a sectarian school's program 'makes a grave constitutional decision turn merely on cost accounting and bookkeeping entries.' Lemon v. Kurtzman, 403 U.S. 602, 641, 91 S.Ct. 2105, 2125, 29 L.Ed.2d 745 (Douglas, J., concurring).
55
Nor could the program here be immunized from scrutiny under the Establishment Clause by portraying this aid as going to the children rather than to the sectarian schools. See Committee for Public Education v. Nyquist, supra, 413 U.S., at 781 et seq., 93 S.Ct., at 2969. That argument deserves no more weight in the Establishment Clause context than it received under the Equal Protection Clause of the Fourteenth Amendment, with respect to which we summarily affirmed decisions striking down state schemes to circumvent the constitutional requirement of racial integration in public schools granting tuition aid to parents who sent their children to segregated private schools. Poindexter v. Louisiana Financial Assistance Comm'n, D.C., 275 F.Supp. 833, aff'd, 389 U.S. 571, 88 S.Ct. 693, 19 L.Ed.2d 780, and D.C., 296 F.Supp. 686, aff'd, 393 U.S. 17, 89 S.Ct. 48, 21 L.Ed.2d 16. And see Griffin v. County School Board, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256.
56
The present case is plainly not moot; a case or controversy exists; and it is clear that if the traditional First Amendment barriers are to be maintained, no program serving students in parochial schools could be designed under this Act—whether regular school hours are used, or after-school hours, or weekend hours. The plain truth is that under the First Amendment, as construed to this day, the Act is unconstitutional to the extent it supports sectarian schools, whether directly or through its students.
57
We should say so now, and save the endless hours and efforts which hopeful people will expend in an effort to constitutionalize what is impossible without a constitutional amendment.
1
'In recognition of the special educational needs of children of low-income families and the impact that concentrations of low-income families have on the ability of local educational agencies to support adequate educational programs, the Congress hereby declares it to be the policy of the United States to provide financial assistance (as set forth in the following parts of this subchapter) to local educational agencies serving areas with concentrations of children from low-income families to expand and improve their educational programs by various means (including preschool programs) which contribute particularly to meeting the special educational needs of educationally deprived children.' 20 U.S.C. § 241a.
2
The implementing regulations, 45 CFR § 116.1, set forth a number of definitions, some in common with, and others in addition to, the definitions contained in the Act itself, 20 U.S.C. § 244. They draw no distinction between public and nonpublic school children. Specifically:
"Educationally deprived children' means those children who have need for special educational assistance in order that their level of educational attainment may be raised to that appropriate for children of their age. The term includes children who are handicapped or whose needs for such special educational assistance result from poverty, neglect, delinquency, or cultural or linguistic isolation from the community at large.' 45 CFR § 116.1(i).
3
In order for a local Title I proposal to be approved and a grant received the local agency must give
'satisfactory assurance that the control of funds provided under this subchapter, and title to property deprived therefrom, shall be in a public agency for the uses and purposes provided in this subchapter, and that a public agency will administer such funds and property.' 20 U.S.C. § 241e(a)(3).
4
'(T)he term 'local educational agency' means a public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for, public elementary or secondary schools in a city, county, township, school district, or other political subdivision of a State, or such combination of school districts or counties as are recognized in a State as an administrative agency for its public elementary or secondary schools. Such term includes any other public institution or agency having administrative control and direction of a public elementary or secondary school . . ..' 20 U.S.C. § 244(6)(B). See also 45 CFR § 116.1(r).
5
'The term 'State educational agency' means the officer or agency primarily responsible for the State supervision of public elementary and secondary schools.' 20 U.S.C. § 244(7). See also 45 CFR § 116.1(aa).
6
The regulations state:
'Each local education agency shall provide special educational services designed to meet the special educational needs of educationally deprived children residing in its district who are enrolled in private schools. Such educationally deprived children shall be provided genuine opportunities to participate therein consistent with the number of such educationally deprived children and the nature and extent of their educational deprivation.' 45 CFR § 116.19(a).
'The needs of educationally deprived children enrolled in private schools, the number of such children who will participate in the program and the types of special educational services to be provided for them, shall be determined, after consultation with persons knowledgeable of the needs of these private school children, on a basis comparable to that used in providing for the participation in the program by educationally deprived children enrolled in public schools.' 45 CFR § 116.19(b).
7
The Court of Appeals noted:
'The practice in Missouri as a whole in prior years has been to give comparable equipment, materials and supplies to eligible private school children, but to exclude any sharing whatsoever of personnel services. Most Title I public school programs in Missouri involve remedial reading, speech therapy and special mathematics classes, thus the largest proportion of the cost of these projects involves salaries for teachers and teacher aids. After the first two years of Title I, expenditures in Missouri for instructional personnel have run from 65 per cent to 70 per cent of the total grant. The remaining funds are used for equipment and materials, health and counseling services, transportation, and plant maintenance. One difficulty with providing only equipment and materials is that even minimal sharing of expenses for equipment and materials soon reaches a saturation point; in fact, the state guidelines permit only 15 per cent of any appropriation to be spent on equipment and instructional materials. The result of this plan for the deprived private school child has been to create a disparity in expenditures in many school districts ranging from approximately $10 to $85 approved for the educationally disadvantaged private school child to approximately $210 to $275 allocated for the deprived public school child.' 475 F.2d 1338, 1345.
8
An informal survey conducted by the United States Office of Education revealed that Missouri was the only State which did not use either dual enrollment of on-the-premises private school instruction as a means of providing Title I services. Brief for Respondents 93—95.
'Thus, we find that when the need of educationally disadvantaged children requires it, Title I authorizes
9
The Missouri Constitution, Art. 9, § 5, V. A.M.S., provides:
'The proceeds of all certificates of indebtedness due the state school fund, and all moneys, bonds, lands, and other property belonging to or donated to any state fund for public school purposes, and the net proceeds of all sales of lands and other property and effects that may accrue to the state by escheat, shall be paid into the state treasury, and securely invested under the supervision of the state board of education, and sacredly preserved as a public school fund the annual income of which shall be faithfully appropriated for establishing and maintaining free public schools, and for no other uses or purposes whatsoever.' (Emphasis supplied.)
The Constitution, Art. 9, § 8, also provides:
'Neither the general assembly, nor any county, city, town, township, school district or other municipal corporation, shall ever make an appropriation or pay from any public fund whatever, anything in aid of any religious creed, church or sectarian purpose, or to help to support or sustain any private or public school, academy, seminary, college, university, or other institution of learning controlled by any religious creed, church or sectarian denomination whatever; nor shall any grant or donation of personal property or real estate ever be made by the state, or any county, city, town, or other
municipal corporation, for any religious creed, church, or sectarian purpose whatever.'
Finally, the Constitution's Bill of Rights, Art. 1, § 7, provides:
'That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.'
In Special District v. Wheeler, 408 S.W.2d 60, 63 (1966), the Supreme Court of Missouri held that 'the use of public school moneys to send speech teachers . . . into the parochial schools for speech therapy' was not a use 'for the purpose of maintaining free public schools,' within the meaning of Art. 9, § 5, of the State's Constitution, and therefore was a practice 'unlawful and invalid.' That case did not involve federal funds.
The question in the present case is whether Title I grants to the State are 'donated . . . for public school purposes' and therefore subject to the proscription held to exist in Special District. After that case was decided by the Missouri court, the State Board of Education promulgated a regulation governing the use of Title I funds in Missouri. It provides:
"Special educational services and arrangements, including broadened instructional offerings made available to children in private schools, shall be provided at public facilities. Public school personnel shall not be made available in private facilities. This does not prevent the inclusion in a project of special educational arrangements to provide educational radio and television to students at private schools." See 475 F.2d, at 1350.
In a formal opinion the Attorney General of Missouri has taken the opposing view, stating: 'We do not believe that an appropriation of this type (Title I) converts federal aid into state aid, thereby making it subject to the Missouri constitutional provisions.' The opinion concludes:
'It is the opinion of this office that the Elementary and Secondary Education Act of 1965 provides that, under certain circumstances
and to the extent necessary, public school personnel, paid with federal funds pursuant to this program, may be made available on the premises of private schools to provide certain special services to eligible children and that Missouri law would not prevent public school personnel, paid with federal funds, from providing these services on the premises of a private school.' Op.Atty.Gen. No. 26 (1970).
This rather fundamental intrastate legal rift apparently has resulted in the Missouri Attorney General's nonappearance for the petitioners in the present litigation.
There is no Missouri case in point. Cf. State ex rel. School District of Hartington v. Nebraska State Board of Education, 188 Neb. 1, 195 N.W.2d 161, cert. denied, 409 U.S. 921, 93 S.Ct. 220, 34 L.Ed.2d 182 (1972).
10
On remand from the Court of Appeals the District Court on May 9, 1973, entered an 'Injunction and Judgment Issued in Compliance with Mandate' requiring use of Title I personnel on private school premises during regular school hours if such personnel are also used in public schools during regular school hours. Pet. for Cert. A45—A47. Petitioners appealed from that judgment, but the Court of Appeals dismissed the appeal as moot after we granted certiorari. Our grant of certiorari was to review the judgment of the Court of Appeals entered pursuant to the opinion reported at 475 F.2d 1338. The judgment of the District Court on remand is not presently before us.
11
The Act itself does not mention 'comparability.' It requires only that the state agency, in approving a plan, must determine 'that, to the extent consistent with the number of educationally deprived children in the school district of the local educational agency who are enrolled in private elementary and secondary schools, such agency has made provision for including special educational services and arrangements (such as dual enrollment, educational radio and television, and mobile educational services and equipment) in which such children can participate.' 20 U.S.C. § 241e(a)(2).
The regulations, 45 CFR §§ 116.19(a) and (b), are the source of the comparability requirement. See n. 6, supra.
12
The case from this Court primarily cited by the Court of Appeals for the proposition that federal, not state, law should govern, is United States v. 93.970 Acres of Land, 360 U.S. 328, 79 S.Ct. 1193, 3 L.Ed.2d 1275 (1959). There, however, this Court said:
'We have often held that where essential interests of the Federal Government are concerned, federal law rules unless Congress chooses to make state laws applicable. It is apparent that no such choice has been made here. Id., at 332—333, 79 S.Ct., at 1196 (footnotes omitted).
In the present case, Congress, in fact, has made this choice, see n. 13, infra, and thus the cited case is not controlling.
13
During the debates in the House, it was generally understood that state constitutional limitations were to be accommodated. For example, at one point Congressman Goodell raised the possibility that state law would preclude certain forms of services to nonpublic schools. The response from Congressman Perkins, Chairman of the Subcommittee, was:
'The gentleman is an able lawyer and he well knows you cannot do anything in this bill that you cannot do under the State law.' 111 Cong.Rec. 5744 (1965).
Responding to a later observation by Mr. Goodell that dual enrollment was prohibited by 28 States, Congressman Carey responded:
'The prohibition applies to a single type of program. That is why we have a multiplicity of programs in this, so that they can choose one in helping the children who are disadvantaged in any one public school.' Id., at 5758.
Congressman Thompson subsequently observed:
'Therefore, the provision about providing full assistance under title I is up to the public school district, subject to the laws of the States.' Ibid.
See also id., at 5957 (remarks of Cong.
See also id., at 5979 (remarks of Cong. Goodell); id., at 5747 (remarks of Cong. Perkins).
The Handbook clearly recognizes that state law is to be accommodated:
'Many State departments of education found severe restrictions with respect to the kind of services that their respective State
constitutions and statutes allowed them to provide to private school students, especially when those private schools were owned and operated by religious groups.
'The following list illustrates the kind of prohibitions encountered when State constitutions and laws are applied to Title I. The list is not exhaustive.
'* Dual enrollment may not be allowed.
'* Public school personnel may not perform services on private school premises.
'* Equipment may not be loaned for use on private school premises.
'* Books may not be loaned for use on private school premises.
'* Transportation may not be provided to private school students.
'Sometimes such prohibitions exist singly in a given State. Often, the prohibitions exist in combination.
'When ESEA was passed in 1965, each State submitted an assurance to the U.S. Office of Education in which the State department of education stated its intention to comply with Title I and its regulations, and the State attorney general declared that the State board of education had the authority, under State law, to perform the duties and functions of Title I as required by the Federal law and its regulations. While State constitutions, laws, and their interpretations limit the options available to provide services to private school students, this fact, in itself, does not relieve the State educational agency of its responsibility to approve only those Title I applications which meet the requirements set forth in the Federal law and regulations.
'A number of school officials realized that they could not submit the required assurance because of the restrictions applying to private school students which were operative in their States. The impasse was sucessfully (sic) resolved in one case by a State attorney general's opinion which held that State restrictions were not applicable to 100 percent federally financed programs.
'Other States have proposed legislation which would allow the SEA to administer Title I according to the Federal requirements. Still others have applied the restrictions of the State to Title I and have relied upon the initiative of school administrators to
develop a program that would meet the Federal requirements.' Handbook 19—20.
14
HEW's Office of Education refers to the comparability requirement as follows:
'The needs of private school children in the eligible areas may require different services and activities. Those services and activities, however, must be comparable in quality, scope, and opportunity for participation to those provided for public school children with needs of equally high priority. 'Comparability' of services should be attained in terms of the numbers of educationally deprived children in the project area in both public and private schools and related to their specific needs, which in turn should produce an equitable sharing of Title I resources by both groups of children.' USOE Program Guide No. 44, 4.5 (1968), in Handbook 41—42. See 45 CFR § 116.18(a).
Title 45 CFR § 116.19(c) provides:
'The opportunities for participation by educationally deprived children in private schools in the program of a local educational agency under Title I of the Act shall be provided through projects of the local educational agency which furnish special educational services that meet the special educational needs of such educationally deprived children rather than the needs of the student body at large or of children in a specified grade.'
See also Handbook 1, 10—11.
15
The Handbook 6, referring to the 'comparability' definition in n. 14, supra, states:
'Basically, that the regulations and guidelines are saying is this: When a group of children in a private school are found to have a need which is similar (not identical) to a need found in a group of public school children, the response to that need with Title I resources should be similar (not identical) in scope, quality, and opportunity for participation for both groups.'
16
The United States, as amicus curiae, states: FC 'Title I is sufficiently flexible to allow local agencies to observe, where possible, state and local restrictions upon aid to private school children (e.g., prohibition against dual enrollment). Accordingly, Title I programs may be provided in a different manner to private and to public school children. For example, remedial services for private school students might be provided outside their regular classroom, while being provided in the regular classroom for public school students. In addition, the content of the services could differ if the 'special educational needs' required to be met under 20 U.S.C. (s) 241e(a)(1) (A) of the two groups differ.' Brief for the United States as Amicus Curiae 10 (footnote omitted).
17
The State, of course, may not utilize the 'comparability' provision so as to provide an inferior program. A year after the Act was passed, the House Committee on Education and Labor issued a Supplemental Report stating:
'While the committee and the Council have emphasized the importance of adherence to constitutional safeguards, the committee does not expect that such considerations will be simply a device by which only a token communication with private school administrators is extended, or worse yet, by which the projects in which private schoolchildren can participate are inconvenient, awkwardly arranged, or poorly conceived. To the contrary, it is expected that earnest efforts will be made to ascertain from private school administrators an accurate appraisal of underachievement and other special needs of educationally disadvantaged children who do not attend the public schools. Projects for such children should be so designed as to effectively eliminate those factors which preclude the educationally deprived child from gaining full benefit from the regular academic program offerings in the private institution in which he or she may be enrolled.' H.R.Rep.No.1814, pt. 2, 89th Cong., 2d Sess., 3 (1966), U.S.Code Cong. & Admin.News 1966, p. 3844.
18
The Senate Report outlined the circumstances in which this type of service would be appropriate:
'It is anticipated, however, that public school teachers will be made available to other than public school facilities only to provide specialized services which contribute particularly to meeting the special educational needs of educationally deprived children (such as therapeutic, remedial or welfare services) and only where such specialized services are not normally provided by the nonpublic school.' S.Rep.No.146, 89th Cong., 1st Sess., 12 (1965). See 45 CFR § 116.19(e); 111 Cong.Rec. 5747 (1965) (remarks of Congs. Perkins and Carey).
19
'There are no easy solutions to the logistrical problems. However, when the legal situation allows several options and good will exists between public and private school representatives, the logistical problem can be solved or reasonably reduced.' Handbook 23.
20
A listing of possible programs suggested to the Senate Committee appears in S.Rep.No.146, 89th Cong., 1st Sess., 10—11 (1965). Among the examples there listed are teacher aides and instructional secretaries; institutes for training teachers in special skills; supplementary instructional materials; curriculum materials center for disadvantaged children; preschool training programs; remedial programs, especially in reading and mathematics; enrichment programs on Saturday morning and during summer; instructional media centers to provide modern equipment and materials; programs for the early identification and prevention of dropouts; home and school visitors and social workers; supplemental health and food services; classrooms equipped for television and radio instruction; mobile learning centers; educational summer camps; summer school and day camps; shop and library facilities available after regular school hours; work experience programs; Saturday morning special opportunity classes; home oriented bookmobiles; afterschool study centers; and pupil exchange programs.
1
Madison's Remonstrance is reprinted in the appendices to Everson v. Board of Education, 330 U.S. 1, 63, 67 S.Ct. 504, 534, 91 L.Ed. 711 (Rutledge, J., dissenting), and Walz v. Tax Comm'n, 397 U.S. 664, 719, 90 S.Ct. 1409, 1437, 25 L.Ed.2d 697 (Douglas, J., dissenting).
2
Everson was a 5—4 decision sustaining a state law which provided reimbursement to parents of children in sectarian schools for the cost of public bus transportation used by the students in traveling to school, but even the majority recognized that the law went to the 'verge' of forbidden territory under the Religion Clauses of the First Amendment. 330 U.S., at 16, 67 S.Ct., at 511. Although I was with the majority in that case, I have since expressed my doubts about the correctness of that decision, e.g., Engel v. Vitale, 370 U.S. 421, 443, 82 S.Ct. 1261, 1273, 8 L.Ed.2d 601; Walz v. Tax Comm'n, supra, 397 U.S., at 703, 90 S.Ct., at 1429.
3
See Lemon v. Krutzman, 403 U.S. 602, 628—629, 91 S.Ct. 2105, 2118—2119, 29 L.Ed.2d 745 (Douglas, J., concurring).
| 23
|
417 U.S. 506
94 S.Ct. 2449.
41 L.Ed.2d 270
Fritz SCHERK, Petitioner,v.ALBERTO-CULVER COMPANY.
No. 73—781.
Argued April 29, 1974.
Decided June 17, 1974.
Rehearing Denied, Oct. 15, 1974.
See 419 U.S. 885, 95 S.Ct. 157.
Syllabus
Respondent, an American manufacturer based in Illinois, in order to expand its overseas operations, purchased from petitioner, a German citizen, three enterprises owned by him and organized under the laws of Germany and Liechtenstein, together with all trademark rights of these enterprises. The sales contract, which was negotiated in the United States, England, and Germany, signed in Austria, and closed in Switzerland, contained express warranties by petitioner that the trademarks were unencumbered and a clause providing that 'any controversy or claim (that) shall arise out of this agreement or the breach thereof' would be referred to arbitration before the International Chamber of Commerce in Paris, France, and that Illinois laws would govern the agreement and its interpretation and performance. Subsequently, after allegedly discovering that the trademarks were subject to substantial encumbrances, respondent offered to rescind the contract, but when petitioner refused, respondent brought suit in District Court or damages and other relief, contending that petitioner's fraudulent representations concerning the trademark rights violated § 10(b) of the Securities Exchange Act of 1934 and Rule 10b—5 promulgated thereunder. Petitioner moved to dismiss the action or alternatively to stay the action pending arbitration, but the District Court denied the motion to dismiss and, as sought by respondent, preliminarily enjoined petitioner from proceeding with arbitration, holding, in reliance on Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168, that the arbitration clause was unenforceable. The Court of Appeals affirmed. Held: The arbitration clause is to be respected and enforced by federal courts in accord with the explicit provisions of the United States Arbitration Act that an arbitration agreement, such as is here involved, 'shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.' 9 U.S.C. §§ 1, 2. Wilko v. Swan, supra, distinguished. Pp. 510—520.
(a) Since uncertainty will almost inevitably exist with respect to any contract, such as the one in question here, with substantial contacts in two or more countries, each with its own substantive laws and conflict-of-laws rules, a contractual provision specifying in advance the forum for litigating disputes and the law to be applied is an almost indispensable precondition to achieving the orderliness and predictability essential to any international business transaction. Such a provision obviates the danger that a contract dispute might be submitted to a forum hostile to the interests of one of the parties or unfamiliar with the problem area involved. Pp. 515—517.
(b) In the context of an international contract, the advantages that a security buyer might possess in having a wide choice of American courts and venue in which to litigate his claims of violations of the securities laws, become chimerical, since an opposing party may by speedy resort to a foreign court block or hinder access to the American court of the buyer's choice. Pp. 517—518.
(c) An agreement to arbitrate before a specified tribunal is, in effect, a specialized kind of forum-selection clause that posits not only the situs of suit but also the procedure to be used in resolving the dispute, and the invalidation of the arbitration clause in this case would not only allow respondent to repudiate its solemn promise but would, as well, reflect a 'parochial concept that all disputes must be resolved under our laws and in our courts.' The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 9, 92 S.Ct. 1907, 1912, 32 L.Ed.2d 513. P. 519.
484 F.2d 611, reversed and remanded.
Robert F. Hanley, Evanston, Ill., for petitioner.
Gerald Aksen for the American Arbitration Association, as amicus curiae, by special leave of Court.
Francis J. Higgins, Chicago, Ill., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.
1
Alberto-Culver Co., the respondent, is an American company incorporated in Delaware with its principal office in Illinois. It manufactures and distributes toiletries and hair products in this country and abroad. During the 1960's Alberto-Culver decided to expand its overseas operations, and as part of this program it approached the petitioner Fritz Scherk, a German citizen residing at the time of trial in Switzerland. Scherk was the owner of three interrelated business entities, organized under the laws of Germany and Liechtenstein, that were engaged in the manufacture of toiletries and the licensing of trademarks for such toiletries. An initial contact with Scherk was made by a representative of Alberto-Culver in Germany in June 1967, and negotiations followed at further meetings in both Europe and the United States during 1967 and 1968. In February 1969 a contract was signed in Vienna, Austria, which provided for the transfer of the ownership of Scherk's enterprises to Alberto-Culver, along with all rights held by these enterprises to trademarks in cosmetic goods. The contract contained a number of express warranties whereby Scherk guaranteed the sole and unencumbered ownership of these trademarks. In addition, the contract contained an arbitration clause providing that 'any controversy or claim (that) shall arise out of this agreement or the breach thereof' would be referred to arbitration before the International Chamber of Commerce in Paris, France, and that '(t)he laws of the State of Illinois, U.S.A. shall apply to and govern this agreement, its interpretation and performance.'1
2
The closing of the transaction took place in Geneva, Switzerland, in June 1969. Nearly one year later Alberto-Culver allegedly discovered that the trademark rights purchased under the contract were subject to substantial encumbrances that threatened to give others superior rights to the trademarks and to restrict or preclude Alberto-Culver's use of them. Alberto-Culver thereupon tendered back to Scherk the property that had been transferred to it and offered to rescind the contract. Upon Scherk's refusal, Alberto-Culver commenced this action for damages and other relief in a Federal District Court in Illinois, contending that Scherk's fraudulent representations concerning the status of the trademark rights constituted violations of § 10(b) of the Securities Exchange Act of 1934, 48 Stat. 891, 15 U.S.C. § 78j(b), and Rule 10b—5 promulgated thereunder, 17 CFR § 240.10b—5.
3
In response, Scherk filed a motion to dismiss the action for want of personal and subject-matter jurisdiction as well as on the basis of forum non conveniens, or, alternatively, to stay the action pending arbitration in Paris pursuant to the agreement of the parties. AlbertoCulver, in turn, opposed this motion and sought a preliminary injunction restraining the prosecution of arbitration proceedings.2 On December 2, 1971, the District Court denied Scherk's motion to dismiss, and, on January 14, 1972, it granted a preliminary order enjoining Scherk from proceeding with arbitration. In taking these actions the court relied entirely on this Court's decision in Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168, which held that an agreement to arbitrate could not preclude a buyer of a security from seeking a judicial remedy under the Securities Act of 1933, in view of the language of § 14 of that Act, barring '(a)ny condition, stipulation, or provision binding any person acquiring any security to waive compliance with any provision of this subchapter . . ..' 48 Stat. 84, 15 U.S.C. § 77n.3 The Court of Appeals for the Seventh Circuit, with one judge dissenting, affirmed, upon what it considered the controlling authority of the Wilko decision. 484 F.2d 611. Because of the importance of the question presented we granted Scherk's petition for a writ of certiorari. 414 U.S. 1156, 94 S.Ct. 913, 39 L.Ed.2d 108.
4
* The United States Arbitration Act, now 9 U.S.C. § 1 et seq., reversing centuries of judicial hostility to arbitration agreements,4 was designed to allow parties to avoid 'the costliness and delays of litigation,' and to place arbitration agreements 'upon the same footing as other contracts . . ..' H.R.Rep.No.96, 68th Cong., 1st Sess., 1, 2 (1924); see also S.Rep.No.536, 68th Cong., 1st Sess. (1924). Accordingly the Act provides that an arbitration agreement such as is here involved 'shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.' 9 U.S.C. § 2.5 The Act also provides in § 3 for a stay of proceedings in a case where a court is satisfied that the issue before it is arbitrable under the agreement, and § 4 of the Act directs a federal court to order parties to proceed to arbitration if there has been a 'failure, neglect, or refusal' of any party to honor an agreement to arbitrate.
5
In Wilko v. Swan, supra, this Court acknowledged that the Act reflects a legislative recognition of the 'desirability of arbitration as an alternative to the complications of litigation,' 346 U.S., at 431, 74 S.Ct., at 185, but nonetheless declined to apply the Act's provisions. That case involved an agreement between Anthony Wilko and Hayden, Stone & Co., a large brokerage firm, under which Wilko agreed to purchase on margin a number of shares of a corporation's common stock. Wilko alleged that his purchase of the stock was induced by false representations on the part of the defendant concerning the value of the shares, and he brought suit for damages under § 12(2) of the Securities Act of 1933, 15 U.S.C. § 77l. The defendant responded that Wilko had agreed to submit all controversies arising out of the purchase to arbitration, and that this agreement, contained in a written margin contract between the parties, should be given full effect under the Arbitration Act.
6
The Court found that '(t)wo policies, not easily reconcilable, are involved in this case.' 346 U.S., at 438, 74 S.Ct., at 188. On the one hand, the Arbitration Act stressed 'the need for avoiding the delay and expense of litigation,' id., at 431, 74 S.Ct., at 185, and directed that such agreements be 'valid, irrevocable, and enforceable' in federal courts. On the other hand, the Securities Act of 1933 was '(d)esigned to protect investors' and to require 'issuers, underwriters, and dealers to make full and fair disclosure of the character of securities sold in interstate and foreign commerce and to prevent fraud in their sale,' by creating 'a special right to recover for misrepresentation . . ..' 346 U.S., at 431, 74 S.Ct., at 184 (footnote omitted). In particular, the Court noted that § 14 of the Securities Act, 15 U.S.C. § 77n, provides:
7
'Any condition, stipulation, or provision binding any person acquiring any security to waive compliance with any provision of this subchapter or of the rules and regulations of the Commission shall be void.'
8
The Court ruled that an agreement to arbitrate 'is a 'stipulation,' and (that) the right to select the judicial forum is the kind of 'provision' that cannot be waived under § 14 of the Securities Act.'6 346 U.S., at 434—435, 74 S.Ct., at 186. Thus, Wilko's advance agreement to arbitrate any disputes subsequently arising out of his contract to purchase the securities was unenforceable under the terms of § 14 of the Securities Act of 1933.
9
Alberto-Culver, relying on this precedent, contends that the District Court and Court of Appeals were correct in holding that its agreement to arbitrate disputes arising under the contract with Scherk is similarly unenforceable in view of its contentions that Scherk's conduct constituted violations of the Securities Exchange Act of 1934 and rules promulgated thereunder. For the reasons that follow, we reject this contention and hold that the provisions of the Arbitration Act cannot be ignored in this case.
10
At the outset, a colorable argument could be made that even the semantic reasoning of the Wilko opinion does not control the case before us. Wilko concerned a suit brought under § 12(2) of the Securities Act of 1933, which provides a defrauded purchaser with the 'special right' of a private remedy for civil liability, 346 U.S., at 431, 74 S.Ct., at 184. There is no statutory counterpart of § 12(2) in the Securities Exchange Act of 1934, and neither § 10(b) of that Act nor Rule 10b—5 speaks of a private remedy to redress violations of the kind alleged here. While federal case law has established that § 10(b) and Rule 10b—5 create an implied private cause of action, see 6 L. Loss, Securities Regulation 3869—3873 (1969) and cases cited therein; cf. J.I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1556, 12 L.Ed.2d 423, the Act itself does not establish the 'special right' that the Court in Wilko found significant. Furthermore, while both the Securities Act of 1933 and the Securities Exchange Act of 1934 contain sections barring waiver of compliance with any 'provision' of the respective Acts,7 certain of the 'provisions' of the 1933 Act that the Court held could not be waived by Wilko's agreement to arbitrate find no counterpart in the 1934 Act. In particular, the Court in Wilko noted that the jurisdictional provision of the 1933 Act, 15 U.S.C. § 77v, allowed a plaintiff to bring suit 'in any court of competent jurisdiction—federal or state—and removal from a state court is prohibited.' 346 U.S., at 431, 74 S.Ct., at 184. The analogous provision of the 1934 Act, by contrast, provides for suit only in the federal district courts that have 'exclusive jurisdiction,' 15 U.S.C. § 78aa, thus significantly restricting the plaintiff's choice of forum.8
11
Accepting the premise, however, that the operative portions of the language of the 1933 Act relied upon in Wilko are contained in the Securities Exchange Act of 1934, the respondent's reliance on Wilko in this case ignores the significant and, we find, crucial differences between the agreement involved in Wilko and the one signed by the parties here. Alberto-Culver's contract to purchase the business entities belonging to Scherk was a truly international agreement. Alberto-Culver is an American corporation with its principal place of business and the vast bulk of its activity in this country, while Scherk is a citizen of Germany whose companies were organized under the laws of Germany and Liechtenstein. The negotiations leading to the signing of the contract in Austria and to the closing in Switzerland took place in the United States, England, and Germany, and involved consultations with legal and trademark experts from each of those countries and from Liechtenstein. Finally, and most significantly, the subject matter of the contract concerned the sale of business enterprises organized under the laws of and primarily situated in European countries, whose activities were largely, if not entirely, directed to European markets.
12
Such a contract involves considerations and policies significantly different from those found controlling in Wilko. In Wilko, quite apart from the arbitration provision, there was no question but that the laws of the United States generally, and the federal securities laws in particular, would govern disputes arising out of the stock-purchase agreement. The parties, the negotiations, and the subject matter of the contract were all situated in this country, and no credible claim could have been entertained that any international conflict-of-laws problems would arise. In this case, by contrast, in the absence of the arbitration provision considerable uncertainty existed at the time of the agreement, and still exists, concerning the law applicable to the resolution of disputes arising out of the contract.9
13
Such uncertainty will almost inevitably exist with respect to any contract touching two or more countries, each with its own substantive laws and conflict-of-laws rules. A contractual provision specifying in advance the forum in which disputes shall be litigated and the law to be applied is, therefore, an almost indispensable precondition to achievement of the orderliness and predictability essential to any international business transaction. Furthermore, such a provision obviates the danger that a dispute under the agreement might be submitted to a forum hostile to the interests of one of the parties or unfamiliar with the problem area involved.10
14
A parochial refusal by the courts of one country to enforce an international arbitration agreement would not only frustrate these purposes, but would invite unseemly and mutually destructive jockeying by the parties to secure tactical litigation advantages. In the present case, for example, it is not inconceivable that if Scherk had anticipated that Alberto-Culver would be able in this country to enjoin resort to arbitration he might have sought an order in France or some other country enjoining Alberto-Culver from proceeding with its litigation in the United States. Whatever recognition the courts of this country might ultimately have granted to the order of the foreign court, the dicey atmosphere of such a legal no-man's-land would surely damage the fabric of international commerce and trade, and imperil the willingness and ability of businessmen to enter into international commercial agreements.11
15
The exception to the clear provisions of the Arbitration Act carved out by Wilko is simply inapposite to a case such as the one before us. In Wilko the Court reasoned that '(w)hen the security buyer, prior to any violation of the Securities Act, waives his right to sue in courts, he gives up more than would a participant in other business transactions. The security buyer has a wider choice of courts and venue. He thus surrenders one of the advantages the Act gives him . . ..' 346 U.S., at 435, 74 S.Ct., at 187. In the context of an international contract, however, these advantages become chimerical since, as indicated above, an opposing party may by speedy resort to a foreign court block or hinder access to the American court of the purchaser's choice.12
16
Two Terms ago in The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513, we rejected the doctrine that a forum-selection clause of a contract, although voluntarily adopted by the parties, will not be respected in a suit brought in the United States "unless the selected state would provide a more convenient forum than the state in which suit is brought." Id., at 7, 92 S.Ct., at 1912. Rather, we concluded that a 'forum clause should control absent a strong showing that it should be set aside.' Id., at 15, 92 S.Ct., at 1916. We noted that 'much uncertainty and possibly great inconvenience to both parties could arise if a suit could be maintained in any jurisdiction in which an accident might occur or if jurisdiction were left to any place (where personal or in rem jurisdiction might be established). The elimination of all such uncertainties by agreeing in advance on a forum acceptable to both parties is an indispensable element in international trade, commerce, and contracting.' Id., at 13—14, 92 S.Ct., at 1915.
17
An agreement to arbitrate before a specified tribunal is, in effect, a specialized kind of forum-selection clause that posits not only the situs of suit but also the procedure to be used in resolving the dispute.13 The invalidation of such an agreement in the case before us would not only allow the respondent to repudiate its solemn promise but would, as well, reflect a 'parochial concept that all disputes must be resolved under our laws and in our courts. . . . We cannot have trade and commerce in world markets and international waters exclusively on our terms, governed by our laws, and resolved in our courts.' Id., at 9, 92 S.Ct., at 1912.14
18
For all these reasons we hold that the agreement of the parties in this case to arbitrate any dispute arising out of their international commercial transaction is to be respected and enforced by the federal courts in accord with the explicit provisions of the Arbitration Act.15
19
Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded to that court with directions to remand to the District Court for further proceedings consistent with this opinion.
20
It is so ordered.
21
Reversed and remanded.
22
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN, Mr. Justice WHITE, and Mr. Justice MARSHALL concur, dissenting.
23
Respondent (Alberto-Culver) is a publicly held corporation whose stock is traded on the New York Stock Exchange and is a Delaware corporation, with its principal place of business in Illinois. Petitioner (Scherk) owned a business in Germany, Firma Ludwig Scherk, dealing with cosmetics and toiletries. Scherk owned various trademarks and all outstanding securities of a Liechtenstein corporation (SEV) and of a German corporation, Lodeva. Scherk also owned various trademarks which were licensed to manufacturers and distributors in Europe and in this country. SEV collected the royalties on those licenses.
24
Alberto undertook to purchase from Scherk the entire establishment—the trademarks and the stock of the two corporations; and later, alleging it had been defrauded, brought this suit in the United States District Court in Illinois to rescind the agreement and to obtain damages.
25
The only defense material at this stage of the proceeding is a provision of the contract providing that if any controversy or claim arises under the agreement the parties agree it will be settled 'exclusively' by arbitration under the rules of the International Chamber of Commerce, Paris, France.
26
The basic dispute between the parties concerned allegations that the trademarks which were basic assets in the transaction were encumbered and that their purchase was induced through serious instances of fraudulent representations and omissions by Scherk and his agents within the jurisdiction of the United States. If a question of trademarks were the only one involved, the principle of The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513, would be controlling.
27
We have here, however, questions under the Securities Exchange Act of 1934, which in § 3(a)(10) defines 'security' as including any 'note, stock, treasury stock, bond, debenture, certificate of interest or participation in any profit-sharing agreement . . ..' 15 U.S.C. § 78c(a)(10). We held in Tcherepnin v. Knight, 389 U.S. 332, 88 S.Ct. 548, 19 L.Ed.2d 564, as respects § 3(a)(10):
28
'(R)emedial legislation should be construed broadly to effectuate its purposes. The Securities Exchange Act quite clearly falls into the category of remedial legislation. One of its central purposes is to protect investors through the requirement of full disclosure by issuers of securities, and the definition of security in § 3(a)(10) necessarily determines the classes of investments and investors which will receive the Act's protections. Finally, we are remainded that, in searching for the meaning and scope of the word 'security' in the Act, form should be disregarded for substance and the emphasis should be on economic reality.' Id., at 336, 88 S.Ct., at 553. (Footnote omitted.)
29
Section 10(b) of the 1934 Act makes it unlawful for any person by use of agencies of interstate commerce or the mails '(t)o use or employ, in connection with the purchase or sale of any security,' whether or not registered on a national securities exchange, 'any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe.' 15 U.S.C. § 78j(b).
30
Alberto-Culver, as noted, is not a private person but a corporation with publicly held stock listed on the New York Stock Exchange. If it is to be believed, if in other words the allegations made are proved, the American company has been defrauded by the issuance of 'securities' (promissory notes) for assets which are worthless or of a much lower value than represented. Rule 10b—518 of the Securities and Exchange Commission states:
31
'It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facilitity of any national securities exchange,
32
'(a) To employ any device, scheme, or artifice to defraud,
33
'(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
34
'(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person,
35
'in connection with the purchase or sale of any security.' 17 CFR § 240.10b—5.
Section 29(a) of the Act provides:
36
'Any condition, stipulation, or provision binding any person to waive compliance with any provision of this chapter or of any rule or regulation thereunder, or of any rule of an exchange required thereby shall be void.' 15 U.S.C. § 78cc(a).
37
And § 29(b) adds that '(e)very contract' made in violation of the Act 'shall be void.'1 No exception is made for contracts which have an international character.
38
The Securities Act of 1933, 48 Stat. 84, 15 U.S.C. § 77n, has a like provision in its § 14:
39
'Any condition, stipulation, or provision binding any person acquiring any security to waive compliance with any provision of this subchapter or of the rules and regulations of the Commission shall be void.'
40
In Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168, a customer brought suit against a brokerage house alleging fraud in the sale of stock. A motion was made to stay the trial until arbitration occurred under the United States Arbitration Act, 9 U.S.C. § 3, as provided in the customer's contract. The Court held that an agreement for arbitration was a 'stipulation' within the meaning of § 14 which sought to 'waive' compliance with the Securities Act. We accordingly held that the courts, not the arbitration tribunals, had jurisdiction over suits under that Act. The arbitration agency, we held, was bound by other standards which were not necessarily consistent with the 1933 Act. We said:
41
'As the protective provisions of the Securities Act require the exercise of judicial direction to fairly assure their effectiveness, it seems to us that Congress must have intended § 14 . . . to apply to waiver of judicial trial and review.' 346 U.S., at 437, 74 S.Ct., at 188.
42
Wilko was held by the Court of Appeals to control this case and properly so.
43
The Court does not consider the question whether a 'security' is involved in this case, saying it was not raised by petitioner. A respondent, however, has the right to urge any argument to support the judgment in his favor (save possibly questions of venue, see Peoria R. Co. v. United States, 263 U.S. 528, 536, 44 S.Ct. 194, 197, 68 L.Ed. 427. United States v. American Railway Express Co., 265 U.S. 425, 435—436, and n. 11, 44 S.Ct. 560, 563 564, 68 L.Ed. 1087), even those not passed upon by the court below and also contentions rejected below. Langnes v. Green, 282 U.S. 531, 535—539, 51 S.Ct. 243, 244—246, 75 L.Ed. 520; Walling v. General Industries Co., 330 U.S. 545, 547 n. 5, 67 S.Ct. 883, 884, 91 L.Ed. 1088. The Court of Appeals held that 'securities' within the meaning of the 1934 Act were involved here, 484 F.2d 611, 615. The brief of the respondent is based on the premise that 'securities' are involved here; and petitioner has not questioned that ruling of the Court of Appeals.
44
It could perhaps be argued that Wilko does not govern because it involved a little customer pitted against a big brokerage house, while we deal here with sophisticated buyers and sellers: Scherk, a powerful German operator, and Alberto-Culver, an American business surrounded and protected by lawyers and experts. But that would miss the point of the problem. The Act does not speak in terms of 'sophisticated' as opposed to 'unsophisticated' people dealing in securities. The rules when the giants play are the same as when the pygmies enter the market.
45
If there are victims here, they are not Alberto-Culver the corporation, but the thousands of investors who are the security holders in Alberto-Culver. If there is fraud and the promissory notes are excessive, the impact is on the equity in Alberto-Culver.
46
Moreover, the securities market these days is not made up of a host of small people scrambling to get in and out of stocks or other securities. The markets are overshadowed by huge institutional traders.2 The so-called 'off-shore funds,' of which Scherk is a member, present perplexing problems under both the 1933 and 1934 Acts.3 The tendency of American investors to invest indirectly as through mutual funds4 may change the character of the regulation but not its need.
47
There has been much support for arbitration of disputes; and it may be the superior way of settling some disagreements. If A and B were quarreling over a trade-mark and there was an arbitration clause in the contract, the policy of Congress in implementing the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, as it did in 9 U.S.C. § 201 et seq., would prevail. But the Act does not substitute an arbiter for the settlement of disputes under the 1933 and 1934 Acts. Art. II(3) of the Convention says:
48
'The court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.'5 (1970) 3 U.S.T. 2517, 2519, T.I.A.S. No. 6997.
49
But § 29(a) of the 1934 Act makes agreements to arbitrate liabilities under § 10 of the Act 'void' and 'inoperative.' Congress has specified a precise way whereby big and small investors will be protected and the rules under which the Alberto-Culvers of this Nation shall operate. They or their lawyers cannot waive those statutory conditions, for our corporate giants are not principalities of power but guardians of a host of wards unable to care for themselvs. It is these wards that the 1934 Act tries to protect.6 Not a word in the Convention governing awards adopts the standards which Congress has passed to protect the investors under the 1934 Act. It is peculiarly appropriate that we adhere to Wilko—more so even than when Wilko was decided. Huge foreign investments are being made in our companies. It is important that American standards of fairness in security dealings govern the destinies of American investors until Congress changes these standards.
50
The Court finds it unnecessary to consider Scherk's argument that this case is distinguishable from Wilko in that Wilko involved parties of unequal bargaining strength. Ante, at 512—513, n. 6. Instead, the Court rests its conclusion on the fact that this was an 'international' agreement, with an American corporation investing in the stock and property of foreign businesses, and speaks favorably of the certainty which inheres when parties specify an arbitral forum for resolution of differences in 'any contract touching two or more countries.'
51
This invocation of the 'international contract' talisman might be applied to a situation where, for example, an interest in a foreign company or mutual fund was sold to an utterly unsophisticated American citizen, with material fraudulent misrepresentations made in this country. The arbitration clause could appear in the fine print of a form contract, and still be sufficient to preclude recourse to our courts, forcing the defrauded citizen to arbitration in Paris to vindicate his rights.7
52
It has been recognized that the 1934 Act, including the protections of Rule 10b-5, applies when foreign defendants have defrauded American investors, particularly when, as alleged here,8 they have profited by virtue of proscribed conduct within our boundaries. This is true even when the defendant is organized under the laws of a foreign country, is conducting much of its activity outside the United States, and is therefore governed largely by foreign law.9 The language of § 29 of the 1934 Act does not immunize such international transactions, and the United Nations Convention provides that a forum court in which a suit is brought need not enforce an agreement to arbitrate which is 'void' and 'inoperative' as contrary to its public policy.10 When a foreign corporation undertakes fraudulent action which subjects it to the jurisdiction of our federal securities laws, nothing justifies the conclusion that only a diluted version of those laws protects American investors.
53
Section 29(a) of the 1934 Act provides that a stipulation binding one to waive compliance with 'any provision' of the Act shall be void, and the Act expressly provides that the federal district courts shall have 'exclusive jurisdiction' over suits brought under the Act. 15 U.S.C. s 78aa. The Court appears to attach some significance to the fact that the specific provisions of the 1933 Act involved in Wilko are not duplicated in the 1934 Act, which is involved in this case. While Alberto-Culver would not have the right to sue in either a state or federal forum as did the plaintiff in Wilko, 346 U.S., at 431, 74 S.Ct., at 184, the Court deprives it of its right to have its Rule 10b—5 claim heard in a federal court. We spoke at length in Wilko of this problem, elucidating the undesirable effects of remitting a securities plaintiff to an arbitral, rather than a judicial, forum. Here, as in Wilko, the allegations of fraudulent misrepresentation will involve 'subjective findings on the purpose and knowledge' of the defendant, questions ill-determined by arbitrators without judicial instruction on the law. See id., at 435, 74 S.Ct., at 187. An arbitral award can be made without explication of reasons and without development of a record, so that the arbitrator's conception of our statutory requirement may be absolutely incorrect yet functionally unreviewable, even when the arbitrator seeks to apply our law. We recognized in Wilko that there is no judicial review corresponding to review of court decisions. Id., at 436—437, 74 S.Ct., at 187—188. The extensive pretrial discovery provided by the Federal Rules of Civil Procedure for actions in district court would not be available. And the wide choice of venue provided by the 1934 Act, 15 U.S.C. § 78aa, would be forfeited. See Wilko v. Swan, supra, at 431, 435, 74 S.Ct. at 186. The loss of the proper judicial forum carries with it the loss of substantial rights.11
54
When a defendant, as alleged here, has, through proscribed acts within our territory, brought itself within the ken of federal securities regulation, a fact not disputed here, those laws—including the controlling principles of Wilko—apply whether the defendant is foreign or American, and whether or not there are transnational elements in the dealings. Those laws are rendered a chimera when foreign corporations or funds—unlike domestic defendants—can nullify them by virtue of arbitration clauses which send defrauded American investors to the uncertainty of arbitration on foreign soil, or, if those investors cannot afford to arbitrate their claims in a far-off forum, to no remedy at all.
55
Moreover, the international aura which the Court gives this case is ominous. We now have many multinational corporations in vast operations around the world—Europe, Latin America, the Middle East, and Asia.12 The investments of many American investors turn on dealings by these companies. Up to this day, it has been assumed by reason of Wilko that they were all protected by our various federal securities Acts. If these guarantees are to be removed, it should take a legislative enactment. I would enforce our laws as they stand, unless Congress makes an exception.
56
The virtue of certainty in international agreements may be important, but Congress has dictated that when there are sufficient contacts for our securities laws to apply, the policies expressed in those laws take precedence. Section 29 of the 1934 Act, which renders arbitration clauses void and inoperative, recognizes no exception for fraudulent dealings which incidentally have some international factors. The Convention makes provision for such national public policy in Art. II(3). Federal jurisdiction under the 1934 Act will attach only to some international transactions, but when it does, the protections afforded investors such as Alberto-Culver can only be full-fledged.
1
The arbitration clause relating to the transfer of one of Scherk's business entities, similar to the clauses covering the other two, reads in its entirety as follows:
'The parties agree that if any controversy or claim shall arise out of this agreement or the breach thereof and either party shall request that the matter shall be settled by arbitration, the matter shall be settled exclusively by arbitration in accordance with the rules then obtaining of the International Chamber of Commerce, Paris, France, by a single arbitrator, if the parties shall agree upon one, or by one arbitrator appointed by each party and a third arbitrator appointed by the other arbitrators. In case of any failure of a party to make an appointment referred to above within four weeks after notice of the controversy, such appointment shall be made by said Chamber. All arbitration proceedings shall be held in Paris, France, and each party agrees to comply in all respects with any award made in any such proceeding and to the entry of a judgment in any jurisdiction upon any award rendered in such proceeding. The laws of the State of Illinois, U.S.A. shall apply to and govern this agreement, its interpretation and performance.'
2
Scherk had taken steps to initiate arbitration in Paris in early 1971. He did not, however, file a formal request for arbitration with the International Chamber of Commerce until November 9, 1971, almost five months after the filing of Alberto-Culver's complaint in the Illinois federal court.
3
The memorandum opinion of the District Court is unreported.
4
English courts traditionally considered irrevocable arbitration agreements as 'ousting' the courts of jurisdiction, and refused to enforce such agreements for this reason. This view was adopted by American courts as part of the common law up to the time of the adoption of the Arbitration Act. See H.R.Rep.No. 96, 68th Cong., 1st Sess., 1, 2 (1924); Sturges & Murphy, Some Confusing Matters Relating to Arbitration under the United States Arbitration Act, 17 Law & Contemp.Prob. 580.
5
Section 2 of the Arbitration Act renders 'valid, irrevocable, and enforceable' written arbitration provisions 'in any maritime transaction or a contract evidencing a transaction involving commerce . . .,' as those terms are defined in § 1. In Bernhardt v. Polygraphic Co., 350 U.S. 198, 76 S.Ct. 273, 100 L.Ed. 199, this Court held that the stay provisions of § 3 apply only to the two kinds of contracts specified in §§ 1 and 2. Since the transaction in this case constituted 'commerce . . . with foreign nations,' 9 U.S.C. § 1, the Act clearly covers this agreement.
6
The arbitration agreement involved in Wilko was contained in a standard form margin contract. But see the dissenting opinion of Mr. Justice Frankfurter, 346 U.S. 427, 439, 440, 74 S.Ct. 182, 189, concluding that the record did not show that 'the plaintiff (Wilko) in opening an account had no choice but to accept the arbitration stipulation . . ..' The petitioner here would limit the decision in Wilko to situations where the parties exhibit a disparity of bargaining power, and contends that, since the negotiations leading to the present contract took place over a number of years and involved the participation on both sides of knowledgeable and sophisticated business and legal experts, the Wilko decision should not apply. See also the dissenting opinion of Judge Stevens of the Court of Appeals in this case, 484 F.2d 611, 615. Because of our disposition of this case on other grounds, we need not consider this contention.
7
Section 14 of the Securities Act of 1933, 15 U.S.C. § 77n, provides as follows:
'Any condition, stipulation, or provision binding any person acquiring any security to waive compliance with any provision of this subchapter or of the rules and regulations of the Commission shall be void.'
Section 29(a) of the Securities Exchange Act of 1934, 15 U.S.C. § 78cc(a), provides:
'Any condition, stipulation, or provision binding any person to waive compliance with any provision of this chapter or of any rule or regulation thereunder, or of any rule of an exchange required thereby shall be void.' While the two sections are not identical, the variations in their wording seem irrelevant to the issue presented in this case.
8
We do not reach, or imply any opinion as to, the question whether the acquisition of Scherk's businesses was a security transaction within the meaning of § 10(b) of the Securities Exchange Act of 1934, and Rule 10b—5. Although this important question was considered by the District Court and the Court of Appeals, and although the dissenting opinion, post, p. 521, seems to consider it controlling, the petitioner did not assign the adverse ruling on the question as error and it was not briefed or argued in this Court.
9
Together with his motion for a stay pending arbitration, Scherk moved that the complaint be dismissed because the federal securities laws do not apply to this international transaction, cf. Leasco Data Processing Equipment Corp. v. Maxwell, 468 F.2d 1326 (CA2 1972). Since only the order granting the injunction was appealed, this contention was not considered by the Court of Appeals and is not before this Court.
10
See Quigley, Accession by the United States to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 70 Yale L.J. 1049, 1051 (1961). For example, while the arbitration agreement involved here provided that the controversies arising out of the agreement be resolved under '(t)he laws of the State of Illinois,' supra, n. 1, a determination of the existence and extent of fraud concerning the trademarks would necessarily involve an understanding of foreign law on that subject.
11
The dissenting opinion argues that our conclusion that Wilko is inapplicable to the situation presented in this case will vitiate the force of that decision because parties to transactions with many more direct contacts with this country than in the present case will nonetheless be able to invoke the 'talisman' of having an 'international contract.' Post, at 529. Concededly, situations may arise where the contacts with foreign countries are so insignificant or attenuated that the holding in Wilko would meaningfully apply. Judicial response to such situations can and should await future litigation in concrete cases. This case, however, provides no basis for a judgment that only United States laws and United States courts should determine this controversy in the face of a solemn agreement between the parties that such controversies be resolved elsewhere. The only contact between the United States and the transaction involved here is the fact that Alberto-Culver is an American corporation and the occurrence of some—but by no means the greater part—of the pre-contract negotiations in this country. To determine that 'American standards of fairness,' post, at 528, must nonetheless govern the controversy demeans the standards of justice elsewhere in the world, and unnecessarily exalts the primacy of United States law over the laws of other countries.
12
The dissenting opinion raises the specter that our holding today will leave American investors at the mercy of multinational corporations with 'vast operations around the world . . ..' Post, at 533. Our decision, of course, has no bearing on the scope of the substantive provisions of the federal securities laws for the simple reason that the question is not presented in this case. See n. 8, supra.
13
Under some circumstances, the designation of arbitration in a certain place might also be viewed as implicitly selecting the law of that place to apply to that transaction. In this case, however, '(t)he laws of the State of Illinois' were explicitly made applicable by the arbitration agreement. See n. 1, supra.
14
In The Bremen we noted that forum-selection clauses 'should be given full effect' when 'a freely negotiated private international agreement (is) unaffected by fraud . . ..' 407 U.S., at 13, 12, 92 S.Ct., at 1915, 1914. This qualification does not mean that any time a dispute arising out of a transaction is based upon an allegation of fraud, as in this case, the clause is unenforceable. Rather, it means that an arbitration or forum-selection clause in a contract is not enforceable if the inclusion of that clause in the contract was the product of fraud or coercion. Cf. Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270.
Although we do not decide the question, presumably the type of fraud alleged here could be raised, under Art. V of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, see n. 15, infra, in challenging the enforcement of whatever arbitral award is produced through arbitration. Article V(2)(b) of the Convention provides that a country may refuse recognition and enforcement of an award if 'recognition or enforcement of the award would be contrary to the public policy of that country.'
15
Our conclusion today is confirmed by international developments and domestic legislation in the area of commercial arbitration subsequent to the Wilko decision. On June 10, 1958, a special conference of the United Nations Economic and Social Council adopted the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. In 1970 the United States acceded to the treaty, (1970) 3 U.S.T. 2517, T.I.A.S. No. 6997, and Congress passed Chapter 2 of the United States Arbitration Act, 9 U.S.C. § 201 et seq., in order to implement the Convention. Section 1 of the new chapter, 9 U.S.C. § 201, provides unequivocally that the Convention 'shall be enforced in United States courts in accordance with this chapter.'
The goal of the Convention, and the principal purpose underlying American adoption and implementation of it, was to encourage the recognition and enforcement of commercial arbitration agreements in international contracts and to unify the standards by which agreements to arbitrate are observed and arbitral awards are enforced in the signatory countries. See Convention on the Recognition and Enforcement of Foreign Arbitral Awards, S. Exec. Doc. E, 90th Cong., 2d Sess. (1968): Quigley, Accession by the United States to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 70 Yale L.J. 1049 (1961). Article II(1) of the Convention provides:
'Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration.'
In their discussion of this Article, the delegates to the Convention voiced frequent concern that courts of signatory countries in which an agreement to arbitrate is sought to be enforced should not be permitted to decline enforcement of such agreements on the basis of parochial views of their desirability or in a manner that would diminish the mutually binding nature of the agreements. See G. Haight, Convention on the Recognition and Enforcement of Foreign Arbitral Awards: Summary Analysis of Record of United Nations Conference, May/June 1958, pp. 24—28 (1958).
Without reaching the issue of whether the Convention, apart from the considerations expressed in this opinion, would require of its own force that the agreement to arbitrate be enforced in the present case, we think that this country's adoption and ratification of the Convention and the passage of Chapter 2 of the United States Arbitration Act provide strongly persuasive evidence of congressional policy consistent with the decision we reach today.
1
Section 29(b) reads: 'Every contract made in violation of any provision of this chapter or of any rule or regulation thereunder, and every contract (including any contract for listing a security on an exchange) heretofore or hereafter made, the performance of which involves the violation of, or the continuance of any relationship of practice in violation of, any provision of this chapter or any rule or regulation thereunder, shall be void (1) as regards the rights of any person who, in violation of any such provision, rule, or regulation, shall have made or engaged in the performance of any such contract, and (2) as regards the rights of any person who, not being a party to such contract, shall have acquired any right thereunder with actual knowledge of the facts by reason of which the making or performance of such contract was in violation of any such provision, rule, or regulation . . ..' 15 U.S.C. § 78cc(b).
2
See Institutional Investor Study Report of the SEC, H.R.Doc.No. 92—64 (1971), particularly Vol. 4.
3
Id., Vol. 1, p. XVI; Vol. 3, p. 879 et seq.
4
Id., Vol. 1, p. XIX; Vol. 2, p. 215 et seq.
5
The Convention also permits that arbitral awards not be recognized and enforced when a court in the country where enforcement is sought finds that '(t)he recognition or enforcement of the award would be contrary to the public policy of that country.' Art. V(2)(b); (1970) 3 U.S.T. 2517, 2520, T.I.A.S. No. 6997. It also provides that recognition of an award may be refused when the arbitration agreement 'is not valid under the law to which the parties have subjected it,' in this case the laws of Illinois. Art. V(1)(a). See n. 10, infra.
6
Requirements promulgated under the 1934 Act require disclosure to security holders of corporate action which may affect them. Extensive annual reports must be filed with the SEC including, inter alia, financial figures, changes in the conduct of business, the acquisition or disposition of assets, increases or decreases in outstanding securities, and even the importance to the business of trademarks held. See 17 CFR §§ 240.13a—1, 249.310; 3 CCH Fed.Sec.L.Rep. 31,101 et seq. (Form 10—K). The Commission has pro-
posed that corporations furnish a copy of annual reports filed with it to any security holder who is solicited for a proxy and requests the report. 39 Fed.Reg. 3836. Current reports must be filed with the SEC by an issuer of securities when substantial events occur, as when the rights evidenced by any class of securities are materially altered by the issuance of another class of securities or when an issuer has acquired a significant amount of assets other than in the ordinary course of business. See 17 CFR §§ 240.13a—11, 249.308; 3 CCH Fed.Sec.L.Rep. 31,001 et seq. (Form 8—K).
The Commission, recognizing that the Form 10—K reports filed annually with it might be excessively abstruse for security holders, see 39 Fed.Reg. 3835, has proposed that the annual reports distributed to security holders in connection with annual meetings and solicitation of proxies provide substantially greater amounts of meaningful information than required presentedly. These annual reports would include a description of the business of the issuer, a summary of operations, explanation of changes in revenues and expenses, information on the liquidity position and the working capital requirements of the issuer, and identification of management and performance on the market of the issuer's securities. See 39 id., at 3834—3838.
7
The Court concedes, ante, at 517 n. 11, that there may be situations where foreign contacts were 'so insignificant or attenuated' that Wilko would apply and an American court would not enforce an arbitration agreement in an international contract. The recognition that 'international' contracts may in fact involve significant direct contacts with this country is realistic and salutary. But the Court by its concession undermines somewhat its reliance on its admonition—itself supported only by speculation that '(a) contractual provision specifying in advance the forum in which disputes shall be litigated . . . is . . . an almost indispensable precondition to achievement of the orderliness and predictability essential to any international business transaction.' Uncertainty and a 'dicey atmosphere,' supposedly destructive of international contracts, may persist for many contracts. The parties to an international contract may not in fact be bound by a 'solemn agreement' to arbitrate, for an American court could find, at a much later date, sufficient contacts with this country to require the application of Wilko.
8
The District Court for the Northern District of Illinois noted allegations that Scherk had failed to state a material fact, the omission of which would have been misleading, see 17 CFR § 240.10b—5(b), during crucial negotiations in Melrose Park, Illinois, and that communications between Alberto-Culver and Scherk's attorney concerning the validity and value of the trademarks occurred within the territorial jurisdiction of the United States. Finally, the District Court noted that the full economic impact of the alleged fraud occurred within the United States.
9
See, e.g., Leasco Data Processing Equipment Corp. v. Maxwell, 468 F.2d 1326, 1334—1339 (CA2 1972); Travis v. Anthes Imperial Ltd., 473 F.2d 515, 523—528 (CA8 1973); SEC v. United Financial Group, Inc., 474 F.2d 354 (CA9 1973); Schoenbaum v. First-brook, 405 F.2d 200 (CA2 1968); Roth v. Fund of Funds, 279 F.Supp. 934 (SDNY), aff'd, 405 F.2d 421 (CA2 1968).
10
A summary of the conference proceedings which led to the adoption of the United Nations Convention was prepared by G. W. Haight, who served as a member of the International Chamber of Commerce delegation to the conference. Haight, Convention on the Recognition and Enforcement of Foreign Arbitral Awards: Summary Analysis of Record of United Nations Conference, May/June 1958 (1958).
When Art. II(3) was being discussed, the Israeli delegate pointed out that while a court could, under the draft Convention as it then stood, refuse enforcement of an award which was incompatible with public policy, "the court had to refer parties to arbitration whether or not such reference was lawful or incompatible with public policy." Id., at 27. The German delegate observed that this difficulty arose from the omission in Art. II(3) "of any words which would relate the arbitral agreement to an arbitral award capable of enforcement under the convention." Ibid.
Haight continues:
'When the German proposal was put to a vote, it failed to obtain a two-thirds majority (13 to 9) and the Article was thus adopted without any words linking agreements to the awards enforceable under the Convention. Nor was this omission corrected in the Report of the Drafting Committee (L. 61), although the obligation
to refer parties to arbitration was (and still is) qualified by the clause 'unless it finds that the agreement is null and void, inoperative or incapable of being performed.'
'As the applicable law is not indicated, courts may under this wording be allowed some latitude; they may find an agreement incapable of performance if it offends the law or the public policy of the forum. Apart from this limited opening, the Conference appeared unwilling to qualify the broad undertaking not only to recognize but also to give effect to arbitral agreements.' Id., at 28 (emphasis added).
Whatever 'concern' the delegates had that signatories to the Convention 'not be permitted to decline enforcement of such agreements on the basis of parochial views of their desirability,' ante, at 520 n. 15, it would seem that they contemplated that a court may decline to enforce an agreement which offends its law or public policy.
The Court also attempts to treat this case as only a minor variation of The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513. In that case, however, the Court, per Mr. Chief Justice Burger explicitly stated:
'A contractual choice-of-forum clause should be held unenforceable if enforcement would contravene a strong public policy of the forum in which suit is brought, whether declared by statute or by judicial decision.' Id., at 15, 92 S.Ct., at 1916.
That is inescapably the case here, as § 29 of the Securities Exchange Act and Wilko v. Swan make clear. Neither § 29, nor the Convention on international arbitration, nor The Bremen justifies abandonment of a national public policy that securities claims be heard by a judicial forum simply because some international elements are involved in a contract.
11
The agreement in this case provided that the 'laws of the State of Illinois' are applicable. Even if the arbitration court should read this clause to require application of Rule 10b—5's standards, Alberto-Culver's victory would be Pyrrhic. The arbitral court may improperly interpret the substantive protections of the Rule, and if it does its error will not be reviewable as would the error of a federal court. And the ability of Alberto-Culver to prosecute its claim would be eviscerated by lack of discovery. These are the policy considerations which underlay Wilko and which apply to the instant case as well.
12
See Knickerbocker, Oligopolistic Reaction and Multinational Enterprise (Haw.Univ.1973); J. Vaupel & J. Curhan, The World's Multinational Enterprises (Harvard Univ.1973). See generally Senate Committee on Finance, 93d Cong., 1st Sess., Implications of Multinational Firms for World Trade and Investment and for U.S. Trade and Labor (Comm.Print 1973); Morgan, Controlling the Multinationals, Washington Post, Nov. 17, 1973, p. A15; Diebold, Precarious Path of the Multinationals, Wall Street Journal, Aug. 17, 1973, p. 6, col. 4.
| 78
|
417 U.S. 535
94 S.Ct. 2474
41 L.Ed.2d 290
Rogers C. B. MORTON, Secretary of the Interior, et al., Appellants,v.C. R. MANCARI et al. AMERIND, Appellant, v. C. R. MANCARI et al.
Nos. 73—362, 73—364.
Argued April 24, 1974.
Decided June 17, 1974.
Syllabus
Appellees, non-Indian employees of the Bureau of Indian Affairs (BIA), brought this class action claiming that the employment preference for qualified Indians in the BIA provided by the Indian Reorganization Act of 1934 contravened the anti-discrimination provisions of the Equal Employment Opportunities Act of 1972, and deprived them of property rights without due process of law in violation of the Fifth Amendment. A three-judge District Court held that the Indian preference was implicitly repealed by § 11 of the 1972 Act proscribing racial discrimination in most federal employment, and enjoined appellant federal officials from implementing any Indian employment preference policy in the BIA. Held:
1. Congress did not intend to repeal the Indian preference, and the District Court erred in holding that it was repealed by the 1972 Act. Pp. 545—551.
(a) Since in extending general anti-discrimination machinery to federal employment in 1972, Congress in no way modified and thus reaffirmed the preferences accorded Indians by §§ 701(b) and 703(i) of Title VII of the Civil Rights Act of 1964 for employment by Indian tribes or by private industries located on or near Indian reservations, it would be anomalous to conclude that Congress intended to eliminate the longstanding Indian preferences in BIA employment, as being racially discriminatory. Pp. 547—548.
(b) In view of the fact that shortly after it passed the 1972 Act Congress enacted new Indian preference laws as part of the Education Amendments of 1972, giving Indians preference in Government programs for training teachers of Indian children, it is improbable that the same Congress condemned the BIA preference as racially discriminatory. Pp. 548—548.
(c) The 1972 extension of the Civil Rights Act to Government employment being largely just a codification of prior anti-discrimination Executive Orders, with respect to which Indian preferences had long been treated as exceptions, there is no reason to presume that Congress affirmatively intended to erase such preferences. P. 549.
(d) This is a prototypical case where an adjudication of repeal by implication is not appropriate, since the Indian preference is a longstanding, important component of the Government's Indian program, whereas the 1972 anti- discrimination provisions, being aimed at alleviating minority discrimination in employment, are designed to deal with an entirely different problem. The two statutes, thus not being irreconcilable, are capable of co-existence, since the Indian preference, as a specific statute applying to a specific situation, is not controlled or nullified by the general provisions of the 1972 Act. Pp. 549—551.
2. The Indian preference does not constitute invidious racial discrimination in violation of the Due Process Clause of the Fifth Amendment but is reasonable and rationally designed to further Indian self-government. Pp. 551—555.
(a) If Indian preference laws, which were derived from historical relationships and are explicitly designed to help only Indians, were deemed invidious racial discrimination, 25 U.S.C. in its entirety would be effectively erased and the Government's commitment to Indians would be jeopardized. Pp. 553—554.
(b) The Indian preference does not constitute 'racial discrimination' or even 'racial' preference, but is rather an employment criterion designed to further the cause of Indian self-government and to make the BIA more responsive to the needs of its constituent groups. Pp. 553—554.
(c) As long as the special treatment of Indians can be tied rationally to the fulfillment of Congress' unique obligation toward Indians, such legislative judgments will not be disturbed. Pp. 554—555.
359 F.Supp. 585, reversed and remanded.
Harry R. Sachse, New Orleans, La., for appellants in No. 73 362.
Harris D. Sherman, Denver, Colo., for appellant in No. 73 364.
Gene E. Franchini, Albuquerque, N.M., for appellees.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
The Indian Reorganization Act of 1934, also known as the Wheeler-Howard Act, 48 Stat. 984, 25 U.S.C. § 461 et seq., accords an employment preference for qualified Indians in the Bureau of Indian Affairs (BIA or Bureau). Appellees, non-Indian BAI employees, challenged this preference as contrary to the anti-discrimination provisions of the Equal Employment Opportunity Act of 1972, 86 Stat. 103, 42 U.S.C. § 2000e et seq. (1970 ed., Supp. II), and as violative of the Due Process Clause of the Fifth Amendment. A three-judge Federal District Court concluded that the Indian preference under the 1934 Act was impliedly repealed by the 1972 Act. 359 F.Supp. 585 (NM 1973). We noted probable jurisdiction in order to examine the statutory and constitutional validity of this longstanding Indian preference. 414 U.S. 1142, 94 S.Ct. 893, 39 L.Ed.2d 99 (1974); 415 U.S. 946, 94 S.Ct. 1467, 39 L.Ed.2d 562 (1974).
2
* Section 12 of the Indian Reorganization Act, 48 Stat. 986, 25 U.S.C. § 472, provides:
3
'The Secretary of the Interior is directed to establish standards of health, age, character, experience, knowledge, and ability for Indians who may be appointed, without regard to civil-service laws, to the various positions maintained, now or hereafter, by the Indian Office,1 in the administration of functions or services affecting any Indian tribe. Such qualified Indians shall hereafter have the preference to appointment to vacancies in any such positions.'2
4
In June 1972, pursuant to this provision, the Commissioner of Indian Affairs, with the approval of the Secretary of the Interior, issued a directive (Personnel Management Letter No. 72 12) (App. 52) stating that the BIA's policy would be to grant a preference to qualified Indians not only, as before, in the initial hiring stage, but also in the situation where an Indian and a non-Indian, both already employed by the BIA, were competing for a promotion within the Bureau.3 The record indicates that this policy was implemented immediately.
5
Shortly thereafter, appellees, who are non-Indian employees of the BIA at Albuquerque,4 instituted this class action, on behalf of themselves and other non-Indian employees similarly situated, in the United States District Court for the District of New Mexico, claiming that the 'so-called 'Indian Preference Statutes," App. 15, were repealed by the 1972 Equal Employment Opportunity Act and deprived them of rights to property without due process of law, in violation of the Fifth Amendment.5 Named as defendants were the Secretary of the Interior, the Commissioner of Indian Affairs, and the BIA Directors for the Albuquerque and Navajo Area Offices. Appellees claimed that implementation and enforcement of the new preference policy 'placed and will continue to place (appellees) at a distinct disadvantage in competing for promotion and training programs with Indian employees, all of which has and will continue to subject the (appellees) to discrimination and deny them equal employment opportunity.' App. 16.
6
A three-judge court was convened pursuant to 28 U.S.C. § 2282 because the complaint sought to enjoin, as unconstitutional, the enforcement of a federal statute. Appellant Amerind, a nonprofit organization representing Indian employees of the BIA, moved to intervene in support of the preference; this motion was granted by the District Court and Amerind thereafter participated at all stages of the litigation.
7
After a short trial focusing primarily on how the new policy, in fact, has been implemented, the District Court concluded that the Indian preference was implicitly repealed by § 11 of the Equal Employment Opportunity Act of 1972, Pub.L. 92—261, 86 Stat. 111, 42 U.S.C. § 2000e—16(a) (1970 ed., Supp. II), proscribing discrimination in most federal employment on the basis of race.6 Having found that Congress repealed the preference, it was unnecessary for the District Court to pass on its constitutionality. The court permanently enjoined appellants 'from implementing any policy in the Bureau of Indian Affairs which would hire, promote, or reassign any person in preference to another solely for the reason that such person is an Indian.' The execution and enforcement of the judgment of the District Court was stayed by Mr. Justice Marshall on August 16, 1973, pending the disposition of this appeal.
II
8
The federal policy of according some hiring preference to Indians in the Indian service dates at least as far back as 1834.7 Since that time, Congress repeatedly has enacted various preferences of the general type here at issue.8 The purpose of these preferences, as variously expressed in the legislative history, has been to give Indians a greater participation in their own self-government;9 to further the Government's trust obligation toward the Indian tribes;10 and to reduce the negative effect of having non-Indians administer matters that affect Indian tribal life.11
9
The preference directly at issue here was enacted as an important part of the sweeping Indian Reorganization Act of 1934. The overriding purpose of that particular Act was to establish machinery whereby Indian tribes would be able to assume a greater degree of self-government, both politically and economically.12 Congress was seeking to modify the then-existing situation whereby the primarily non-Indian-staffed BIA had plenary control, for all practical purposes, over the lives and destinies of the federally recognized Indian tribes. Initial congressional proposals would have diminished substantially the role of the BIA by turning over to federally chartered self-governing Indian communities many of the functions normally performed by the Bureau.13 Committee sentiment, however, ran against such a radical change in the role of the BIA.14 The solution ultimately adopted was to strengthen tribal government while continuing the active role of the BIA, with the understanding that the Bureau would be more responsive to the interests of the people it was created to serve.
10
One of the primary means by which self-government would be fostered and the Bureau made more responsive was to increase the participation of tribal Indians in the BIA operations.15 In order to achieve this end, it was recognized that some kind of preference and exemption from otherwise prevailing civil service requirements was necessary.16 Congressman Howard, the House sponsor, expressed the need for the preference:
11
'The Indians have not only been thus deprived of civic rights and powers, but they have been largely deprived of the opportunity to enter the more important positions in the service of the very bureau which manages their affairs. Theoretically, the Indians have the right to qualify for the Federal civil service. In actual practice there has been no adequate program of training to qualify Indians to compete in these examinations, especially for technical and higher positions; and even if there were such training, the Indians would have to compete under existing law, on equal terms with multitudes of white applicants. . . . The various services on the Indian reservations are actually local rather than Federal services and are comparable to local municipal and county services, since they are dealing with purely local Indian problems. It should be possible for Indians with the requisite vocational and professional training to enter the service of their own people without the necessity of competing with white applicants for these positions. This bill permits them to do so.' 78 Cong.Rec. 11729 (1934).
12
Congress was well aware that the proposed preference would result in employment disadvantages within the BIA for non-Indians.17 Not only was this displacement unavoidable if room were to be made for Indians, but it was explicitly determined that gradual replacement of non-Indians with Indians within the Bureau was a desirable feature of the entire program for self-government.18 Since 1934, the BIA has implemented the preference with a fair degree of success. The percentage of Indians employed in the Bureau rose from 34% in 1934 to 57% in 1972. This reversed the former downward trend, see n. 16, supra, and was due, clearly, to the presence of the 1934 Act. The Commissioner's extension of the preference in 1972 to promotions within the BIA was designed to bring more Indians into positions of responsibility and, in that regard, appears to be a logical extension of the congressional intent. See Freeman v. Morton, 162 U.S.App.D.C. 358, 499 F.2d 494 (1974), and n. 5, supra.
III
13
It is against this background that we encounter the first issue in the present case: whether the Indian preference was repealed by the Equal Employment Opportunity Act of 1972. Title VII of the Civil Rights Act of 1964, 78 Stat. 253, was the first major piece of federal legislation prohibiting discrimination in private employment on the basis of 'race, color, religion, sex, or national origin.' 42 U.S.C. § 2000e—2(a). Significantly, §§ 701(b) and 703(i) of that Act explicitly exempted from its coverage the preferential employment of Indians by Indian tribes or by industries located on or near Indian reservations. 42 U.S.C. §§ 2000e(b) and 2000e-2(i).19 This exemption reveals a clear congressional recognition, within the framework of Title VII, of the unique legal status of tribal and reservation-based activities. The Senate sponsor, Senator Humphrey, stated on the floor by way of explanation:
14
'Thus exemption is consistent with the Federal Government's policy of encouraging Indian employment and with the special legal position of Indians.' 110 Cong.Rec. 12723 (1964).20
15
The 1964 Act did not specifically outlaw employment discrimination by the Federal Government.21 Yet the mechanism for enforcing longstanding Executive Orders forbidding Government discrimination had proved ineffective for the most part.22 In order to remedy this, Congress, by the 1972 Act, amended the 1964 Act and proscribed discrimination in most areas of federal employment. See n. 6, supra. In general, it may be said that the substantive anti-discrimination law embraced in Title VII was carried over and applied to the Federal Government. As stated in the House Report:
16
'To correct this entrenched discrimination in the Federal service, it is necessary to insure the effective application of uniform, fair and strongly enforced policies. The present law and the proposed statute do not permit industry and labor organizations to be the judges of their own conduct in the area of employment discrimination. There is no reason why government agencies should not be treated similarly. . . .' H.R.Rep. No. 92—238, on H.R. 1746, pp. 24—25 (1971).
17
Nowhere in the legislative history of the 1972 Act, however, is there any mention of Indian preference.
18
Appellees assert, and the District Court held, that since the 1972 Act proscribed racial discrimination in Government employment, the Act necessarily, albeit sub silentio, repealed the provision of the 1934 Act that called for the preference in the BIA of one racial group, Indians, over non-Indians:
19
'When a conflict such as in this case, is present, the most recent law or Act should apply and the conflicting Preferences passed some 39 years earlier should be impliedly repealed.' Brief for Appellees 7.
20
We disagree. For several reasons we conclude that Congress did not intend to repeal the Indian preference and that the District Court erred in holding that it was repealed.
21
First: There are the above-mentioned affirmative provisions in the 1964 Act excluding coverage of tribal employment and of preferential treatment by a business or enterprise on or near a reservation. 42 U.S.C. §§ 2000e(b) and 2000e—2(i). See n. 19, supra. These 1964 exemptions as to private employment indicate Congress' recognition of the longstanding federal policy of providing a unique legal status to Indians in matters concerning tribal or 'on or near' reservation employment. The exemptions reveal a clear congressional sentiment that an Indian preference in the narrow context of tribal or reservation-related employment did not constitute racial discrimination of the type otherwise proscribed. In extending the general anti-discrimination machinery to federal employment in 1972, Congress in no way modified these private employment preferences built into the 1964 Act, and they are still in effect. It would be anomalous to conclude that Congress intended to eliminate the longstanding statutory preferences in BIA employment, as being racially discriminatory, at the very same time it was reaffirming the right of tribal and reservation-related private employers to provide Indian preference. Appellees' assertion that Congress implicitly repealed the preference as racially discriminatory, while retaining the 1964 preferences, attributes to Congress irrationality and arbitrariness, an attribution we do not share.
22
Second: Three months after Congress passed the 1972 amendments, it enacted two new Indian preference laws. These were part of the Education Amendments of 1972, 86 Stat. 235, 20 U.S.C. §§ 887c(a) and (d), and § 1119a (1970 ed., Supp. II). The new laws explicitly require that Indians be given preference in Government programs for training teachers of Indian children. It is improbable, to say the least, that the same Congress which affirmatively approved and enacted these additional and similar Indian preferences was, at the same time, condemning the BIA preference as racially discriminatory. In the total absence of any manifestation of supportive intent, we are loathe to imply this improbable result.
23
Third: Indian preferences, for many years, have been treated as exceptions to Executive Orders forbidding Government employment discrimination.23 The 1972 extension of the Civil Rights Act to Government employment is in large part merely a codification of prior anti-discrimination Executive Orders that had proved ineffective because of inadequate enforcement machinery. There certainly was no indication that the substantive proscription against discrimination was intended to be any broader than that which previously existed. By codifying the existing anti-discrimination provisions, and by providing enforcement machinery for them, there is no reason to presume that Congress affirmatively intended to erase the preferences that previously had co-existed with broad anti-discrimination provisions in Executive Orders.
24
Fourth: Appellees encounter head-on the 'cardinal rule . . . that repeals by implication are not favored.' Posadas v. National City Bank, 296 U.S. 497, 503, 56 S.Ct. 349, 352, 80 L.Ed. 351 (1936); Wood v. United States, 16 Pet. 342—343, 363, 10 L.Ed. 987 (1842); Universal Interpretive Shuttle Corp. v. Washington Metropolitan Area Transit Comm'n, 393 U.S. 186, 193, 89 S.Ct. 354, 358, 21 L.Ed.2d 334 (1968). They and the District Court read the congressional silence as effectuating a repeal by implication. There is nothing in the legislative history, however, that indicates affirmatively any congressional intent to repeal the 1934 preference. Indeed, as explained above, there is ample independent evidence that the legislative intent was to the contrary.
25
This is a prototypical case where an adjudication of repeal by implication is not appropriate. The preference is a longstanding, important component of the Government's Indian program. the anti-discrimination provision, aimed at alleviating minority discrimination in employment, obviously is designed to deal with an entirely different and, indeed, opposite problem. Any perceived conflict is thus more apparent than real.
26
In the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable. Georgia v. Pennsylvania R. Co., 324 U.S. 439, 456 457, 65 S.Ct. 716, 725—726, 89 L.Ed. 1051 (1945). Clearly, this is not the case here. A provision aimed at furthering Indian self-government by according an employment preference within the BIA for qualified members of the governed group can readily co-exist with a general rule prohibiting employment discrimination on the basis of race. Any other conclusion can be reached only by formalistic reasoning that ignores both the history and purposes of the preference and the unique legal relationship between the Federal Government and tribal Indians.
27
Furthermore, the Indian preference statute is a specific provision applying to a very specific situation. The 1972 Act, on the other hand, is of general application. Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment. See, e.g., Bulova Watch Co. v. United States, 365 U.S. 753, 758, 81 S.Ct. 864, 6 L.Ed.2d 72 (1961); Rodgers v. United States, 185 U.S. 83, 87—89, 22 S.Ct. 582, 583—584, 46 L.Ed. 816 (1902).
28
The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective. 'When there are two acts upon the same subject, the rule is to give effect to both if possible . . .. The intention of the legislature to repeal 'must be clear and manifest." United States v. Borden Co., 308 U.S. 188, 198, 60 S.Ct. 182, 188, 84 L.Ed. 181 (1939). In light of the factors indicating no repeal, we simply cannot conclude that Congress consciously abandoned its policy of furthering Indian self-government when it passed the 1972 amendments.
29
We therefore hold that the District Court erred in ruling that the Indian preference was repealed by the 1972 Act.
IV
30
We still must decide whether, as the appellees contend, the preference constitutes invidious racial discrimination in violation of the Due Process Clause of the Fifth Amendment. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). The District Court, while pretermitting this issue, said: '(W)e could well hold that the statute must fail on constitutional grounds.' 359 F.Supp., at 591.
31
Resolution of the instant issue turns on the unique legal status of Indian tribes under federal law and upon the plenary power of Congress, based on a history of treaties and the assumption of a 'guardian-ward' status, to legislate on behalf of federally recognized Indian tribes. The plenary power of Congress to deal with the special problems of Indians is drawn both explicitly and implicitly from the Constitution itself. Article I, § 8, cl. 3, provides Congress with the power to 'regulate Commerce . . . with the Indian Tribes,' and thus, to this extent, singles Indians out as a proper subject for separate legislation. Article II, § 2, cl. 2, gives the President the power, by and with the advice and consent of the Senate, to make treaties. This has often been the source of the Government's power to deal with the Indian tribes. The Court has described the origin and nature of the special relationship:
32
'In the exercise of the war and treaty powers, the United States overcame the Indians and took possession of their lands, sometimes by force, leaving them an uneducated, helpless and dependent people, needing protection against the selfishness of others and their own improvidence. Of necessity the United States assumed the duty of furnishing that protection, and with it the authority to do all that was required to peform that obligation and to prepare the Indians to take their place as independent, qualified members of the modern body politic. . . .' Board of County Comm'rs v. Seber, 318 U.S. 705, 715, 63 S.Ct. 920, 926, 87 L.Ed. 1094 (1943).
33
See also United States v. Kagama, 118 U.S. 375, 383—384, 6 S.Ct. 1109, 1113—1114, 30 L.Ed. 228 (1886).
34
Literally every piece of legislation dealing with Indian tribes and reservations, and certainly all legislation dealing with the BIA, single out for special treatment a constituency of tribal Indians living on or near reservations. If these laws, derived from historical relationships and explicitly designed to help only Indians, were deemed invidious racial discrimination, an entire Title of the United States Code (25 U.S.C.) would be effectively erased and the solemn commitment of the Government toward the Indians would be jeopardized. See Simmons v. Eagle Seelatsee, 244 F.Supp. 808, 814 n. 13 (ED Wash.1965), aff'd, 384 U.S. 209, 86 S.Ct. 1459, 16 L.Ed.2d 480 (1966).
35
It is in this historical and legal context that the constitutional validity of the Indian preference is to be determined. As discussed above, Congress in 1934 determined that proper fulfillment of its trust required turning over to the Indians a greater control of their own destinies. The overly paternalistic approach of prior years had proved both exploitative and destructive of Indian interests. Congress was united in the belief that institutional changes were required. An important part of the Indian Reorganization Act was the preference provision here at issue.
36
Contrary to the characterization made by appellees, this preference does not constitute 'racial discrimination.' Indeed, it is not even a 'racial' preference.24 Rather, it is an employment criterion reasonably designed to further the cause of Indian self-government and to make the BIA more responsive to the needs of its constituent groups. It is directed to participation by the governed in the governing agency. The preference is similar in kind to the constitutional requirement that a United States Senator, when elected, be 'an Inhabitant of that State for which he shall be chosen,' Art. I, § 3, cl. 3, or that a member of a city council reside within the city governed by the council. Congress has sought only to enable the BIA to draw more heavily from among the constituent group in staffing its projects, all of which, either directly or indirectly, affect the lives of tribal Indians. The preference, as applied, is granted to Indians not as a discrete racial group, but, rather, as members of quasi-sovereign tribal entities whose lives and activities are governed by the BIA in a unique fashion. See n. 24, supra. In the sense that there is no other group of people favored in this manner, the legal status of the BIA is truly suigeneris.25 Furthermore, the preference applies only to employment in the Indian service. The preference does not cover any other Government agency or activity, and we need not consider the obviously more difficult question that would be presented by a blanket ememption for Indians from all civil service examinations. Here, the preference is reasonably and directly related to a legitimate, nonracially based goal. This is the principal characteristic that generally is absent from proscribed forms of racial discrimination.
37
On numerous occasions this Court specifically has upheld legislation that singles out Indians for particular and special treatment. See, e.g., Board of County Comm'rs v. Seber, 318 U.S. 705, 63 S.Ct. 920, 87 L.Ed. 1094 (1943) (federally granted tax immunity); McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973) (same); Simmons v. Eagle Seelatsee, 384 U.S. 209, 86 S.Ct. 1459, 16 L.Ed.2d 480 (1966), aff'g 244 F.Supp. 808 (ED Wash.1965) (statutory definition of tribal membership, with resulting interest in trust estate); Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959) (tribal courts and their jurisdiction over reservation affairs). Cf. Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974) (federal welfare benefits for Indians 'on or near' reservations). This unique legal status is of long standing, see Cherokee Nation v. Georgia, 5 Pet. 1, 8 L.Ed. 25 (1831); Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483 (1832), and its sources are diverse. See generally U.S. Dept. of Interior, Federal Indian Law (1958); Comment, The Indian Battle for Self-Determination, 58 Calif.L.Rev. 445 (1970). As long as the special treatment can be tied rationally to the fulfillment of Congress' unique obligation toward the Indians, such legislative judgments will not be disturbed. Here, where the preference is reasonable and rationally designed to further Indian self-government, we cannot say that Congress' classification violates due process.
38
The judgment of the District Court is reversed and the cases are remanded for further proceedings consistent with this opinion.
39
It is so ordered.
40
Judgment reversed and case remanded.
1
The Indian Health Service was transferred in 1954 from the Department of the Interior to the Department of Health, Education and Welfare. Act of Aug. 5, 1954, § 1, 68 Stat. 674, 42 U.S.C. § 2001. Presumably, despite this transfer, the reference in § 12 to the 'Indian Office' has continuing application to the Indian Health Service. See 5 CFR § 213.3116(b)(8).
2
There are earlier and more narrowly drawn Indian preference statutes. 25 U.S.C. §§ 44, 45, 46, 47, and 274. For all practical purposes, these were replaced by the broader preference of § 12. Although not directly challenged in this litigation, these statutes, under the District Court's decision, clearly would be invalidated.
3
The directive stated:
'The Secretary of the Interior announced today (June 26, 1972) he has approved the Bureau's policy to extend Indian Preference to training and to filling vacancies by original appointment, reinstatement and promotions. The new policy was discussed with the National President of the National Federation of Federal Employees under National Consultation Rights NFFE has with the Department. Secretary Morton and I jointly stress that careful attention must be given to protecting the Rights of non-Indian employees. The new policy provides as follows: Where two or more candidates who meet the established qualification requirements are available for filling a vacancy. If one of them is an Indian, he shall be given preference in filling the vacancy. This new policy is effective immediately, and is incorporated into all existing programs such as the Promotion Program. Revised Manual releases will be issued promptly for review and comment. You should take immediate steps to notify all employees and recognized unions of this policy.' App. 52—53.
4
The appellees state that none of them is employed on or near an Indian reservation. Brief for Appellees 8. The District Court described the appellees as 'teachers . . . or programmers, or in computer work.' 359 F.Supp. 585, 587 (NM 1973).
5
The specific question whether § 12 of the 1934 Act authorizes a preference in promotion as well as in initial hiring was not decided by the District Court and is not now before us. We express no opinion on this issue. See Freeman v. Morton, 162 U.S.App.D.C. 358, 499 F.2d 494 (1974). See also Mescalero Apache Tribe v. Hickel, 432 F.2d 956 (CA10 1970), cert. denied, 401 U.S. 981, 91 S.Ct. 1195, 28 L.Ed.2d 333 (1971) (preference held inapplicable to reduction in force).
6
Section 2000e—16(a) reads:
'All personnel actions affecting employees or applicants for employment (except with regard to aliens employed outside the limits of the United States) in military departments as defined in section 102 of Title 5, in executive agencies (other than the Generl Accounting Office) as defined in section 105 of Title 5 (including employees and applicants for employment who are paid from nonappropriated funds), in the United States Postal Service and the Postal Rate Commission, in those units of the Government of the District of Columbia having positions in the competitive service, and in those units of the legislative and judicial branches of the Federal Government having positions in the competitive service, and in the Library of Congress shall be made free from any discrimination based on race, color, religion, sex, or national origin.'
7
Act of June 30, 1834, § 9, 4 Stat. 737, 25 U.S.C. § 45:
'(I)n all cases of the appointments of interpreters or other persons employed for the benefit of the Indians, a preference shall be given to persons of Indian descent, if such can be found, who are properly qualified for the execution of the duties.'
8
Act of May 17, 1882, § 6, 22 Stat. 88, and Act of July 4, 1884, § 6, 23 Stat. 97, 25 U.S.C. § 46 (employment of clerical, mechanical, and other help on reservations and about agencies); Act of Aug. 15, 1894, § 10, 28 Stat. 313, 25 U.S.C. § 44 (employment of herders, teamsters, and laborers, 'and where practicable in all other employments' in the Indian service); Act of June 7, 1897, § 1, 30 Stat. 83, 25 U.S.C. § 274 (employment as matrons, farmers, and industrial teachers in Indian schools); Act of June 25, 1910, § 23, 36 Stat. 861, 25 U.S.C. § 47 (general preference as to Indian labor and products of Indian industry).
9
Senator Wheeler, cosponsor of the 1934 Act, explained the need for a preference as follows:
'We are setting up in the United States a civil service rule which prevents Indians from managing their own property. It is an entirely different service from anything else in the United States, because these Indians own this property. It belongs to them. What the policy of this Government is and what it should be is to teach these Indians to manage their own business and control their own funds and to administer their own property, and the civil service has worked very poorly so far as the Indian Service is concerned . . ..' Hearings on S. 2755 and S. 3645 before the Senate Committee on Indian Affairs, 73d Cong., 2d Sess., pt. 2, p. 256 (1934).
10
A letter, contained in the House Report to the 1934 Act, from President F. D. Roosevelt to Congressman Howard states:
'We can and should, without further delay, extend to the Indian the fundamental rights of political liberty and local self-government and the opportunities of education and economic assistance that they require in order to attain a wholesome American life. This is but the obligation of honor of a powerful nation toward a people living among us and dependent upon our protection.' H.R.Rep.No.1804, 73d Cong., 2d Sess., 8 (1934).
11
'If the Indians are exposed to any danger, there is none greater than the residence among them of unprincipled white men.' H.R.Rep.No.474, 23d Cong., 1st Sess., 98 (1834) (letter dated Feb. 10, 1834, from Indian Commissioners to the Secretary of War).
12
As explained by John Collier, Commissioner of Indian Affairs:
'(T)his bill is designed not to prevent the absorption of Indians in white communities, but rather to provide for those Indians unwilling or unable to compete in the white world some measures of self-government in their own affairs.' Hearing on S. 2755 before the Senate Committee on Indian Affairs, 73d Cong., 2d Sess., pt. 1, p. 26 (1934).
13
Hearings on H.R. 7902, Readjustment of Indian Affairs, 73d Cong., 2d Sess., 1—7 (1934) (hereafter House Hearings). See also Mescalaro Apache Tribe v. Jones, 411 U.S. 145, 152—153, n. 9, 93 S.Ct. 1267, 1272—1273, 36 L.Ed.2d 114 (1973).
14
House Hearings 491—497.
15
'(Section 12) was intended to integrate the Indian into the government service connected with the administration of his affairs. Congress was anxious to promote economic and political self-determination for the Indian' (footnote omitted). Mescalero Apache Tribe v. Hickel, 432 F.2d, at 960 (footnote omitted).
16
The bill admits qualified Indians to the position (sic) in their own service.
'Thirty-four years ago, in 1900, the number of Indians holding regular positions in the Indian Service, in proportion to the total of positions, was greater than it is today.
'The reason primarily is found in the application of the generalized civil service to the Indian Service, and the consequent exclusion of Indians from their own jobs.' House Hearings 19 (memorandum dated Feb. 19, 1934, submitted by Commissioner Collier to the Senate and House Committees on Indian Affairs).
17
Congressman Carter, an opponent of the bill, placed in the Congressional Record the following observation by Commissioner Collier at the Committee hearings:
'(W)e must not blind ourselves to the fact that the effect of this bill if worked out would unquestionably be to replace white employees by Indian employees. I do not know how fast, but ultimately it ought to go very far indeed.' 78 Cong.Rec. 11737 (1934).
18
'It should be possible for Indians to enter the service of their own people without running the gauntlet of competition with whites for these positions. Indian progress and ambition will be enormously strengthened as soon as we adopt the principle that the Indian Service shall gradually become, in fact as well as in name, an Indian service predomiantly in the hands of educated and competent Indians.' Id., at 11731 (remarks of Cong. Howard).
19
Section 701(b) excludes 'an Indian Tribe' from the Act's definition of 'employer.' Section 703(i) states:
'Nothing contained in this subchapter shall apply to any business or enterprise on or near an Indian reservation with respect to any publicly announced employment practice of such business or enterprise under which a preferential treatment is given to any individual because he is an Indian living on or near a reservation.'
20
Senator Mundt supported these exemptions on the Senate floor by claiming that they would allow Indians 'to benefit from Indian preference programs now in operation or later to be instituted.' 110 Cong.Rec. 13702 (1964).
21
The 1964 Act, however, did contain a proviso, expressed in somewhat precatory language:
'That it shall be the policy of the United States to insure equal employment opportunities for Federal employees without discrimination because of race, color, religion, sex or national origin.' 78 Stat. 254.
This statement of policy was re-enacted as 5 U.S.C. § 7151, 80 Stat. 523 (1963), and the 1964 Act's proviso was repealed, id., at 662.
22
'This disproportionatte (sic) distribution of minorities and women throughout the Federal bureaucracy and their exclusion from higher level policy-making and supervisory positions indicates the government's failure to pursue its policy of equal opportunity.
'A critical defect of the Federal equal employment program has been the failure of the complaint process. That process has impeded rather than advanced the goal of the elimination of discrimination in Federal employment. . . .' H.R.Rep.No.92—238, on H.R. 1746, pp. 23—24 (1971).
23
See, e.g., Exec.Order No. 7423, July 26, 1936, 1 Fed.Reg. 885—886, 3 CFR 189 (1936—1938 Comp.). When President Eisenhower issued an Order prohibiting discrimination on the basis of race in the civil service, Exce. Order No. 10577, § 4.2, Nov. 22, 1954, 19 Fed.Reg. 7521, 3 CFR 218 (1957—1958 Comp.), he left standing earlier Executive Orders containing exceptions for the Indian service. Id., § 301. See also 5 CFR § 213.3112(a)(7), which provides a civil service exemption for:
'All positions in the Bureau of Indian Affairs and other positions in the Department of the Interior directly and primarily related to the providing of services to Indians when filled by the appointment of Indians who are one-fourth or more Indian blood.'
See also 5 CFR § 213.3116(b)(8) (Indian Health Services).
24
The preference is not directed towards a 'racial' group consisting of 'Indians'; instead, it applies only to members of 'federally recognized' tribes. This operates to exclude many individuals who are racially to be classified as 'Indians.' In this sense, the preference is political rather than racial in nature. The eligibility criteria appear in 44 BIAM 335, 3.1:
'1. Policy—An Indian has preference in appointment in the Bureau. To be eligible for preference in appointment, promotion, and training, an individual must be one-fourth or more degree Indian blood and be a member of a Federally-recognized tribe. It is the policy for promotional consideration that where two or more candidates who met the established qualification requirements are available for filling a vacancy, if one of them is an Indian, he shall be given preference in filling the vacancy. In accordance with the policy statement approved by the Secretary, the Commissioner may grant exceptions to this policy by approving the selection and appointment of non-Indians, when the he considers it in the best interest of the Bureau.
'This program does not restrict the right of management to fill positions by methods other than through promotion. Positions may be filled by transfers, reassignment, reinstatement, or initial appointment.' App. 92.
25
Senator Wheeler described the BIA as 'an entirely different service from anything else in the United States.' Hearings on S. 2755 and S. 3645 before the Senate Committee on Indian Affairs, 73d Cong., 2d Sess., pt. 2, p. 256 (1934).
| 12
|
417 U.S. 484
94 S.Ct. 2485
41 L.Ed.2d 256
Dwight GEDULDIG, etc., Appellant,v.Carolyn AIELLO et al.
No. 73—640.
Argued March 26, 1974.
Decided June 17, 1974.
Syllabus
California has a disability insurance system for private employees temporarily disabled from working by an injury or illness not covered by workmen's compensation, under which an employee contributes to an Unemployment Compensation Disability Fund one percent of his salary up to an annual maximum of $85. A disability lasting less than eight days is not compensable, except when the employee is hospitalized. Benefits are not payable for a single disability exceeding 26 weeks. A disability resulting from an individual's court commitment as a dipsomaniac, drug addict, or sexual psychopath is not compensable, nor are certain disabilities attributable to pregnancy. Appellees, four women otherwise qualified under the program who have suffered employment disability because of pregnancies, only one of which was normal, challenged the pregnancy exclusion. A three-judge District Court upheld their contention that the exclusion violated the Equal Protection Clause. The court denied a motion to reconsider based on a state appellate court ruling, in which appellant who administers the program has acquiesced, confining the exclusion to only normal pregnancies. The California program, in terms of the level of benefits and risks insured, is structured to maintain the solvency of the Disability Fund at a one-percent annual level of contribution. The District Court acknowledged that coverage of disabilities resulting from normal pregnancies would entail substantial additional expense. But it concluded that this increased cost could be accommodated through adjustments in the rate of employee contribution, the maximum benefits payable, 'and the other variables affecting the solvency of the program.' Held:
1. The appellate ruling and administrative guidelines excluding only normal pregnancies have mooted the case as to the three appellees who had abnormal pregnancies and whose claims have now been paid. Pp. 491—492.
2. California's decision not to insure under its program the risk of disability resulting from normal pregnancy does not constitute an invidious discrimination violative of the Equal Protection Clause. The program does not discriminate with respect to the persons or groups eligible for its protection, and there is no evidence that it discriminates against any definable group or class in terms of the aggregate risk protection derived from the program. The sole contention is the asserted under-inclusiveness of the program's coverage as a result of the exclusion of disabilities resulting from normal pregnancy. The State is not required by the Equal Protection Clause to sacrifice the self-supporting nature of the program, reduce the benefits payable for covered disabilities, or increase the maximum employee contribution rate just to provide protection against another risk of disability, such as normal pregnancy. '(T)he Equal Protection Clause does not require that a State must choose between attacking every aspect of a problem or not attacking the problem at all.' Dandridge v. Williams, 397 U.S. 471, 486—487, 90 S.Ct. 1153, 1162, 25 L.Ed.2d 491. Pp. 492—497.
D.C., 359 F.Supp. 792, reversed.
Joanne Condas, San Francisco, Cal., for appellant.
Wendy W. Williams, Berkeley, Cal., for appellees.
Mr. Justice STEWART delivered the opinion of the Court.
1
For almost 30 years California has administered a disability insurance system that pays benefits to persons in private employment who are temporarily unable to work because of disability not covered by workmen's compensation. The appellees brought this action to challenge the constitutionality of a provision of the California program that, in defining 'disability,' excludes from coverage certain disabilities resulting from pregnancy. Because the appellees sought to enjoin the enforcement of this state statute, a three-judge court was convened pursuant to 28 U.S.C. §§ 2281 and 2284.1 On the appellees' motion for summary judgment, the District Court, by a divided vote, held that this provision of the disability insurance program violates the Equal Protection Clause of the Fourteenth Amendment, and therefore enjoined its continued enforcement. 359 F.Supp. 792. The District Court denied a motion to stay its judgment pending appeal. The appellant thereupon filed a similar motion in this Court, which we granted. Hansen v. Aiello, 414 U.S. 897, 94 S.Ct. 208, 38 L.Ed.2d 142. We subsequently noted probable jurisdiction of the appeal. 414 U.S. 1110, 94 S.Ct. 838, 38 L.Ed.2d 736.
2
* California's disability insurance system is funded entirely from contributions deducted from the wages of participating employees. Participation in the program is mandatory unless the employees are protected by a voluntary private plan approved by the State.2 Each employee is required to contribute one percent of his salary, up to an annual maximum of $85.3 These contributions are placed in the Unemployment Compensation Disability Fund, which is established and administered as a special trust fund within the state treasury.4 It is from this Disability Fund that benefits under the program are paid.
3
An individual is eligible for disability benefits if, during a one-year base period prior to his disability, he has contributed one percent of a minimum income of $300 to the Disability Fund.5 In the event he suffers a compensable disability, the individual can receive a 'weekly benefit amount' of between $25 and $105, depending on the amount he earned during the highest quarter of the base period.6 Benefits are not paid until the eighth day of disability, unless the employee is hospitalized, in which case benefits commence on the first day of hospitalization.7 In addition to the 'weekly benefit amount,' a hospitalized employee is entitled to receive 'additional benefits' of $12 per day of hospitalization.8 'Weekly benefit amounts' for any one disability are payable for 26 weeks so long as the total amount paid does not exceed one-half of the wages received during the base period.9 'Additional benefits' for any one disability are paid for a maximum of 20 days.10
4
In return for his one-percent contribution to the Disability Fund, the individual employee is insured against the risk of disability stemming from a substantial number of 'mental or physical illness(es) and mental or physical injur(ies).' Cal.Unemp.Ins.Code § 2626. It is not every disabling condition, however, that triggers the obligation to pay benefits under the program. As already noted, for example, any disability of less than eight days' duration is not compensable, except when the employee is hospitalized. Conversely, no benefits are payable for any single disability beyond 26 weeks. Further, disability is not compensable if it results from the individual's court commitment as a dipsomaniac, drug addict, or sexual psychopath.11 Finally, § 2626 of the Unemployment Insurance Code excludes from coverage certain disabilities that are attributable to pregnancy. It is this provision that is at issue in the present case.
5
Appellant is the Director of the California Department of Human Resources Development.12 He is responsible for the administration of the State's disability insurance program. Appellees are four women who have paid sufficient amounts into the Disability Fund to be eligible for benefits under the program. Each of the appellees became pregnant and suffered employment disability as a result of her pregnancy. With respect to three of the appellees, Carolyn Aiello, Augustina Armendariz, and Elizabeth Johnson, the disabilities were attributable to abnormal complications encountered during their pregnancies.13 The fourth, Jacqueline Jaramillo, experienced a normal pregnancy, which was the sole cause of her disability.
6
At all times relevant to this case, § 2626 of the Unemployment Insurance Code provided:
7
"Disability' or 'disabled' includes both mental or physical illness and mental or physical injury. An individual shall be deemed disabled in any day in which, because of his physical or mental condition, he is unable to perform his regular or customary work. In no case shall the term 'disability' or 'disabled' include any injury or illness caused by or arising in connection with pregnancy up to the termination of such pregnancy and for a period of 28 days thereafter.' (Emphasis added.) Appellant construed and applied the final sentence of this statute to preclude the payment of benefits for any disability resulting from pregnancy. As a result, the appellees were ruled ineligible for disability benefits by reason of this provision, and they sued to enjoin its enforcement. The District Court, finding 'that the exclusion of pregnancy-related disabilities is not based upon a classification having a rational and substantial relationship to a legitimate state purpose,' held that the exclusion was unconstitutional under the Equal Protection Clause. 359 F.Supp., at 801.
8
Shortly before the District Court's decision in this case, the California Court of Appeal, in a suit brought by a woman who suffered an ectopic pregnancy, held that § 2626 does not bar the payment of benefits on account of disability that results from medical complications arising during pregnancy. Rentzer v. California Unemployment Insurance Appeals Board, 32 Cal.App.3d 604, 108 Cal.Rptr. 336 (1973).14 The state court construed the statute to preclude only the payment of benefits for disability accompanying normal pregnancy.15 The appellant acquiesced in this construction and issued administrative guidelines that exclude only the payment of 'maternity benefits' i.e., hospitalization and disability benefits for normal delivery and recuperation.
9
Although Rentzer was decided some 10 days before the District Court's decision in this case, there was apparently no opportunity to call the court's attention to it. The appellant, therefore, asked the court to reconsider its decision in light of the construction that the California Court of Appeal had given to § 2626 in the Rentzer case. By a divided vote, the court denied the motion for reconsideration. Although a more definitive ruling would surely have been preferable, we interpret the District Court's denial of the appellant's motion as a determination that its decision was not affected by the limiting construction given to § 2626 in Rentzer.
10
Because of the Rentzer decision and the revised administrative guidelines that resulted from it, the appellees Aiello, Armendariz, and Johnson, whose disabilities were attributable to causes other than normal pregnancy and delivery, became entitled to benefits under the disability insurance program, and their claims have since been paid. With respect to appellee Jaramillo, however, whose disability stemmed solely from normal pregnancy and childbirth, § 2626 continues to bar the payment of any benefits. It is evident that only Jaramillo continues to have a live controversy with the appellant as to the validity of § 2626. The claims of the other appellees have been mooted by the change that Rentzer worked in the construction and application of that provision. Thus, the issue before the Court on this appeal is whether the California disability insurance program invidiously discriminates against Jaramillo and others similarly situated by not paying insurance benefits for disability that accompanies normal pregnancy and childbirth.
II
11
It is clear that California intended to establish this benefit system as an insurance program that was to function essentially in accordance with insurance concepts.16 Since the program was instituted in 1946, it has been totally self-supporting, never drawing on general state revenues to finance disability or hospital benefits. The Disability Fund is wholly supported by the one percent of wages annually contributed by participating employees. At oral argument, counsel for the appellant informed us that in recent years between 90% and 103% of the revenue to the Disability Fund has been paid out in disability and hospital benefits. This history strongly suggests that the one-percent contribution rate, in addition to being easily computable, bears a close and substantial relationship to the level of benefits payable and to the disability risks insured under the program.
12
Over the years California has demonstrated a strong commitment not to increase the contribution rate above the one-percent level. The State has sought to provide the broadest possible disability protection that would be affordable by all employees, including those with very low incomes. Because any larger percentage or any flat dollar-amount rate of contribution would impose an increasingly regressive levy bearing most heavily upon those with the lowest incomes, the State has resisted any attempt to change the required contribution from the one-percent level. The program is thus structured, in terms of the level of benefits and the risks insured, to maintain the solvency of the Disability Fund at a one-percent annual level of contribution.17
13
In ordering the State to pay benefits for disability accompanying normal pregnancy and delivery, the District Court acknowledged the State's contention 'that coverage of these disabilities is so extraordinarily expensive that it would be impossible to maintain a program supported by employee contributions if these disabilities are included.' 359 F.Supp., at 798. There is considerable disagreement between the parties with respect to how great the increased costs would actually be, but they would clearly be substantial.18 For purposes of analysis the District Court accepted the State's estimate, which was in excess of $100 million annually, and stated: '(I)t is clear that including these disabilities would not destroy the program The increased costs could be accommodated quite easily by making reasonable changes in the contribution rate, the maximum benefits allowable, and the other variables affecting the solvency of the program.' Ibid.
14
Each of these 'variables'—the benefit level deemed appropriate to compensate employee disability, the risks selected to be insured under the program, and the contribution rate chosen to maintain the solvency of the program and at the same time to permit low-income employees to participate with minimal personal sacrifice—represents a policy determination by the State. The essential issue in this case is whether the Equal Protection Clause requires such policies to be sacrificed or compromised in order to finance the payment of benefits to those whose disability is attributable to normal pregnancy and delivery.
15
We cannot agree that the exclusion of this disability from coverage amounts to invidious discrimination under the Equal Protection Clause. California does not discriminate with respect to the persons or groups which are eligible for disability insurance protection under the program. The classification challenged in this case relates to the asserted underinclusiveness of the set of risks that the State has selected insure. Although California has created a program to insure most risks of employment disability, it has not chosen to insure all such risks, and this decision is reflected in the level of annual contributions exacted from participating employees. This Court has held that, consistently with the Equal Protection Clause, a State 'may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. . . . The legislature may select one phase of one field and apply a remedy there, neglecting the others. . . .' Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955); Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972). Particularly with respect to social welfare programs, so long as the line drawn by the State is rationally supportable, the courts will not interpose their judgment as to the appropriate stopping point. '(T)he Equal Protection Clause does not require that a State must choose between attacking every aspect of a problem or not attacking the problem at all.' Dandridge v. Williams, 397 U.S. 471, 486—487, 90 S.Ct. 1153, 1162, 25 L.Ed.2d 491 (1970).
16
The District Court suggested that moderate alterations in what it regarded as 'variables' of the disability insurance program could be made to accommodate the substantial expense required to include normal pregnancy within the program's protection. The same can be said, however, with respect to the other expensive class of disabilities that are excluded from coverage—short-term disabilities. If the Equal Protection Clause were thought to compel disability payments for normal pregnancy, it is hard to perceive why it would not also compel payments for short-term disabilities suffered by participating employees.19
17
It is evident that a totally comprehensive program would be substantially more costly than the present program and would inevitably require state subsidy, a higher rate of employee contribution, a lower scale of benefits for those suffering insured disabilities, or some combination of these measures. There is nothing in the Constitution, however, that requires the State to subordinate or compromise its legitimate interests solely to create a more comprehensive social insurance program than it already has.
18
The State has a legitimate interest in maintaining the self-supporting nature of its insurance program. Similarly, it has an interest in distributing the available resources in such a way as to keep benefit payments at an adequate level for disabilities that are covered, rather than to cover all disabilities inadequately. Finally, California has a legitimate concern in maintaining the contribution rate at a level that will not unduly burden participating employees, particularly low-income employees who may be most in need of the disability insurance.
19
These policies provide an objective and wholly noninvidious basis for the State's decision not to create a more comprehensive insurance program than it has. There is no evidence in the record that the selection of the risks insured by the program worked to discriminate against any definable group or class in terms of the aggregate risk protection derived by that group or class from the program.20 There is no risk from which men are protected and women are not. Likewise, there is no risk from which women are protected and men are not.21
20
The appellee simply contends that, although she has received insurance protection equivalent to that provided all other participating employees, she has suffered discrimination because she encountered a risk that was outside the program's protection. For the reasons we have stated, we hold that this contention is not a valid one under the Equal Protection Clause of the Fourteenth Amendment.
21
The stay heretofore issued by the Court is vacated, and the judgment of the District Court is reversed.
22
Reversed.
23
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL join, dissenting.
24
Relying upon Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), and Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972), the Court today rejects appellees' equal protection claim and upholds the exclusion of normal-pregnancy-related disabilities from coverage under California's disability insurance program on the ground that the legislative classification rationally promotes the State's legitimate cost-saving interests in 'maintaining the self-supporting nature of its insurance program(,) . . . distributing the available resources in such a way as to keep benefit payments at an adequate level for disabilities that are covered, . . . (and) maintaining the contribution rate at a level that will not unduly burden participating employees . . ..' Ante, at 249. Because I believe that Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), and Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), mandate a stricter standard of scrutiny which the State's classification fails to satisfy, I respectfully dissent.
25
California's disability insurance program was enacted to supplement the State's unemployment insurance and workmen's compensation programs by providing benefits to wage earners to cushion the economic effects of income loss and medical expenses resulting from sickness or injury. The legislature's intent in enacting the program was expressed clearly in § 2601 of the Unemployment Insurance Code:
26
'The purpose of this part is to compensate in part for the wage loss sustained by individuals unemployed because of sickness or injury and to reduce to a minimum the suffering caused by unemployment resulting therefrom. This part shall be construed liberally in aid of its declared purpose to mitigate the evils and burdens which fall on the unemployed and disabled worker and his family.'
27
To achieve the Act's broad humanitarian goals, the legislature fashioned a pooled-risk disability fund covering all employees at the same rate of contribution,1 regardless of individual risk.2 The only requirement that must be satisfied before an employee becomes eligible to receive disability benefits is that the employee must have contributed one percent of a minimum income of $300 during a one-year base period. Cal.Unemp.Ins.Code § 2652. The 'basic benefits,' varying from $25 to $119 per week, depending upon the employee's base-period earnings, begin on the eighth day of disability or on the first day of hospitalization. §§ 2655, 2627(b), 2802. Benefits are payable for a maximum of 26 weeks, but may not exceed one-half of the employee's total base-period earnings. § 2653. Finally, compensation is paid for virtually all disabling conditions without regard to cost, voluntariness, uniqueness, predictability, or 'normalcy' of the disability.3 Thus, for example, workers are compensated for costly disabilities such as heart attacks, voluntary disabilities such as cosmetic surgery or sterilization, disabilities unique to sex or race such as prostatectomies or sickle-cell anemia, pre-existing conditions inevitably resulting in disability such as degenerative arthritis or cataracts, and 'normal' disabilities such as removal of irritating wisdom teeth or other orthodontia.
28
Despite the Code's broad goals and scope of coverage, compensation is denied for disabilities suffered in connection with a 'normal' pregnancy—disabilities suffered only by women. Cal.Unemp.Ins.Code §§ 2626, 2626.2 (Supp.1974). Disabilities caused by pregnancy, however, like other physically disabling conditions covered by the Code, require medical care, often include hospitalization, anesthesia and surgical procedures, and may involve genuine risk to life.4 Moreover, the economic effects caused by pregnancy-related disabilities are functionally indistinguishable from the effects caused by any other disability: wages are lost due to a physical inability to work, and medical expenses are incurred for the delivery of the child and for postpartum care.5 In my view, by singling out for less favorable treatment a gender-linked disability peculiar to women, the State has created a double standard for disability compensation: a limitation is imposed upon the disabilities for which women workers may recover, while men receive full compensation for all disabilities suffered, including those that affect only or primarily their sex, such as prostatectomies, circumcision, hemophilia, and gout. In effect, one set of rules is applied to females and another to males. Such dissimilar treatment of men and women, on the basis of physical characteristics inextricably linked to one sex, inevitably constitutes sex discrimination.
29
The same conclusion has been reached by the Equal Employment Opportunity Commission, the federal agency charged with enforcement of Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e et seq. (1970 ed., Supp. II), which prohibits employment discrimination on the basis of sex. In guidelines issued pursuant to Title VII and designed to prohibit the disparate treatment of pregnancy disabilities in the employment context,6 the EEOC has declared:
30
'Disabilities caused or contributed to by pregnancy, miscarriage, abortion, chidbirth, and recovery therefrom are, for all job-related purposes, temporary disabilities and should be treated as such under any health or temporary disability insurance or sick leave plan available in connection with employment. Written and unwritten employment policies and practices involving matters such as the commencement and duration of leave, the availability of extensions, the accrual of seniority and other benefits and privileges, reinstatement, and payment under any health or temporary disability insurance or sick leave plan, formal or informal, shall be applied to disability due to pregnancy or childbirth on the same terms and conditions as they are applied to other temporary disabilities.' 29 CFR § 1604.10(b).7
31
In the past, when a legislative classification has turned on gender, the Court has justifiably applied a standard of judicial scrutiny more strict than that generally accorded economic or social welfare programs. Compare Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), and Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), with Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), and Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972). Yet, by its decision today, the Court appears willing to abandon that higher standard of review without satisfactorily explaining what differentiates the gender-based classification employed in this case from those found unconstitutional in Reed and Frontiero. The Court's decision threatens to return men and women to a time when 'traditional' equal protection analysis sustained legislative classifications that treated differently members of a particular sex solely because of their sex. See, e.g., Muller v. Oregon, 208 U.S. 412, 28 S.Ct. 324, 52 L.Ed. 551 (1908); Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163 (1948); Hoyt v. Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118 (1961).
32
I cannot join the Court's apparent retreat. I continue to adhere to my view 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.' Frontiero v. Richardson, supra, 411 U.S., at 688, 93 S.Ct. at 1771. When, as in this case, the State employs a legislative classification that distinguishes between beneficiaries solely by reference to gender-linked disability risks, '(t)he Court is not . . . free to sustain the statute on the ground that it rationally promotes legitimate governmental interests; rather, such suspect classifications can be sustained only when the State bears the burden of demonstrating that the challenged legislation serves overriding or compelling interests that cannot be achieved either by a more carefully tailored legislative classification or by the use of feasible, less drastic means.' Kahn v. Shevin, 416 U.S. 351, 357—358, 94 S.Ct. 1734, 1738, 40 L.Ed.2d 189 (1974) (Brennan, J., dissenting).
33
The State has clearly failed to meet that burden in the present case. The essence of the State's justification for excluding disabilities caused by a normal pregnancy from its disability compensation scheme is that covering such disabilities would be too costly. To be sure, as presently funded, inclusion of normal pregnancies 'would be substantially more costly than the present program.'8 Ante, at 495. The present level of benefits for insured disabilities could not be maintained without increasing the employee contribution rate, raising or lifting the yearly contribution ceiling, or securing state subsidies. But whatever role such monetary considerations may play in traditional equal protection analysis, the State's interest in preserving the fiscal integrity of its disability insurance program simply cannot render the State's use of a suspect classification constitutional. For a while 'a State has a valid interest in preserving the fiscal integrity of its programs(,) . . . a State may not accomplish such a purpose by invidious distinctions between classes of its citizens. . . . The saving of welfare costs cannot justify an otherwise invidious classification.' Shapiro v. Thompson, 394 U.S. 618, 633, 89 S.Ct. 1322, 1330, 22 L.Ed.2d 600 (1969). Thus, when a statutory classification is subject to strict judicial scrutiny, the State 'must do more than show that denying (benefits to the excluded class) saves money.' Memorial Hospital v. Maricopa County, 415 U.S. 250, 263, 94 S.Ct. 1076, 1085, 39 L.Ed.2d 306 (1974). See also Graham v. Richardson, 403 U.S. 365, 374—375, 91 S.Ct. 1848, 1853—1854, 29 L.Ed.2d 534 (1971).9
34
Moreover, California's legitimate interest in fiscal integrity could easily have been achieved through a variety of less drastic, sexually neutral means. As the District Court observed:
35
'Even using (the State's) estimate of the cost of expanding the program to include pregnancy-related disabilities, however, it is clear that including these disabilities would not destroy the program. The increased costs could be accommodated quite easily by making reasonable changes in the contribution rate, the maximum benefits allowable, and the other variables affecting the solvency of the program. For example, the entire cost increase estimated by defendant could be met by requiring workers to contribute an additional amount of approximately .364 percent of their salary and increasing the maximum annual contribution to about $119.' 359 F.Supp. 792, 798.
36
I would therefore affirm the judgment of the District Court.
1
This litigation began as two separate suits on behalf of California employees who had paid sufficient amounts into the Disability Fund to be eligible generally for benefits under the program. Carolyn Aiello brought her suit against appellant in the Federal District Court. Augustina Armendariz, Elizabeth Johnson, and Jacqueline Jaramillo jointly initiated their suit as a petition for a writ of mandate in the California Supreme Court. Both suits were brought as class actions and asserted the unconstitutionality of § 2626 of the California Unemployment Insurance Code under the Equal Protection Clause of the Fourteenth Amendment. The appellant removed the state court suit to the Federal District Court, where the two actions were consolidated. See 28 U.S.C. § 1441(b).
2
West's Ann.Cal.Unemp.Ins.Code §§ 3251—3254.
3
§§ 984, 985, 2901.
4
§ 3001.
5
§ 2652.
6
§ 2655. This provision has been amended, effective July 1, 1974, to provide for a maximum weekly benefit amount of $119.
7
§§ 2627(b) and 2802.
8
§ 2801.
9
§ 2653.
10
§ 2801. Section 2608 provides a formula for determining whether a disabling condition that is intermittent is one disability or more than one disability for purposes of applying the limitations in §§ 2653 and 2801 on the maximum amount of benefits payable.
11
§ 2678. Sections 2675—2677 contain various other factors that will disqualify an employee from receiving benefits but that relate to matters other than the nature of the disabling condition.
12
Effective July 1, 1974, the Department of Human Resources Development will be renamed the Department of Employment Development. See Cal.Unemp.Ins.Code § 301 et seq.
13
Aiello and Johnson suffered ectopic and tubal pregnancies, respectively, which required surgery to terminate the pregnancies. Armendariz suffered a miscarriage.
14
In an earlier decision, the Court of Appeal had sustained § 2626 against an equal protection challenge by a female employee who had suffered disability as a result of normal pregnancy and delivery. Clark v. California Employment Stabilization Comm'n, 166 Cal.App.2d 326, 332 P.2d 716 (1958).
15
Section 2626 was later amended, and a new § 2626.2 was added, in order clearly to reflect this interpretation. The two sections now provide as follows:
§ 2626 "Disability' or 'disabled' includes both mental or physical illness, mental or physical injury, and, to the extent specified in Section 2626.2, pregnancy. An individual shall be deemed disabled in any day in which, because of his physical or mental condition, he is unable to perform his regular or customary work.'
§ 2626.2 'Benefits relating to pregnancy shall be paid under this part only in accordance with the following:
'(a) Disability benefits shall be paid upon a doctor's certification that the claimant is disabled because of an abnormal and involuntary complication of pregnancy, including but not limited to: puerperal infection, eclampsia, caesarian section delivery, ectopic pregnancy, and toxemia.
'(b) Disability benefits shall be paid upon a doctor's certification that a condition possibly arising out of pregnancy would disable that claimant without regard to the pregnancy, including but not limited to: anemia, diabetes, embolism, heart disease, hypertension, phlebitis, phlebothrombosis, pyelonephritis, thrombophlebitis, vaginitis, varicose veins, and venous thrombosis.'
These amendments took effect on January 1, 1974.
16
In his message to the state legislature proposing the creation of this program, Governor Earl Warren stated:
'It is not possible for employees to obtain from private insurance companies protection against loss of wages or salary during sickness as adequately or cheaply as that protection could be obtained by diverting their present 1 per cent contribution for the support of a Disability Benefits Program.' California Senate Journal, Jan. 23, 1946, p. 229.
The California Supreme Court has concluded 'that the legislative purpose in providing unemployment disability benefits . . . was to provide an insurance program to pay benefits to individuals who are unemployed because of illness or injury . . ..' Garcia v. Industrial Accident Comm'n, 41 Cal.2d 689, 692, 263 P.2d 8, 10 (1953) (internal quotation marks omitted).
17
Section 2604 of the Unemployment Insurance Code vests the Governor and the appellant with authority to modify the payment of benefits and to increase the waiting time for eligibility if such steps are necessary to forestall insolvency of the Disability Fund. But neither the Governor nor the appellant is authorized to increase the contribution rate under any circumstances.
18
Appellant's estimate of the increased cost of including normal pregnancy within the insured risks has varied between $120.2 million and $131 million annually, or between a 33% or 36% increase in the present amount of benefits paid under the program. On the other hand, appellee contends that the increased cost would be $48.9 million annually, or a 12% increase over present expenditures.
19
The same could be said of disabilities continuing beyond 26 weeks.
20
The dissenting opinion to the contrary, this case is thus a far cry from cases like Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), and Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), involving discrimination based upon gender as such. The California insurance program does not exclude anyone from benefit eligibility because of gender but merely removes one physical condition—pregnancy—from the list of compensable disabilities. While it is true that only women can become pregnant it does not follow that every legislative classification concerning pregnancy is a sex-based classification like those considered in Reed, supra, and Frontiero, supra. Normal pregnancy is an objectively identifiable physical condition with unique characteristics. Absent a showing that distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against the members of one sex or the other, lawmakers are constitutionally free to include or exclude pregnancy from the coverage of legislation such as this on any reasonable basis, just as with respect to any other physical condition.
The lack of identity between the excluded disability and gender as such under this insurance program becomes clear upon the most cursory analysis. The program divides potential recipients into two groups—pregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes. The fiscal and actuarial benefits of the program thus accrue to members of both sexes.
21
Indeed, the appellant submitted to the District Court data that indicated that both the annual claim rate and the annual claim cost are greater for women than for men. As the District Court acknowledged, 'women contribute about 28 percent of the total disability insurance fund and receive back about 38 percent of the fund in benefits.' 359 F.Supp. 792, 800. Several amici curiae have represented to the Court that they have had a similar experience under private disability insurance programs.
1
An employee must contribute one percent of his annual wages, not exceeding a total contribution of $85 per year ($90 for calendar year 1974 and thereafter). Cal.Unemp.Ins.Code §§ 984, 985, 2901. The ceiling on wages subject to the one-percent contribution rate, of course, introduces a regressive element in the contribution scheme. Perhaps in recognition of this fact, the disability benefits schedule is designed to grant proportionately greater benefits to more poorly paid workers. § 2655.
2
California deliberately decided not to classify employees on the basis of actuarial data. Thus, the contribution rate for a particular group of employees is not tied to that group's predicted rate of disability claims. 359 F.Supp. 792, 800.
3
While the Code technically excludes from coverage individuals under court commitment for dipsomania, drug addiction, or sexual psychopathy, Unemp.Ins.Code § 2678, the Court was informed by the Deputy Attorney General of California at oral argument that court commitment for such disabilities is 'a fairly archaic practice' and that 'it would be unrealistic to say that they constitute valid exclusions.' Tr. of Oral Arg. 13.
4
On March 2, 1974, the American College of Obstetricians and Gynecologists adopted the following Policy Statement on Pregnancy-related Disabilities:
'Pregnancy is a physiological process. All pregnant patients, however, have a variable degree of disability on an individual basis, as indicated below, during which time they are unable to perform their usual activities. (1) In an uncomplicated pregnancy, disability occurs near the termination of pregnancy, during labor, delivery, and the puerperium. The process of labor and puerperium is disabling in itself. The usual duration of such disability is approximately six to eight weeks. (2) Complications of a pregnancy may occur which give rise to other disability. Examples of such complications include toxemia, infection, hemorrhage, ectopic pregnancy, and abortion. (3) A woman with pre-existing disease which in itself is not disabling, may become disabled with the addition of pregnancy. Certain patients with heart disease, diabetes, hypertensive cardiovascular disease, renal disease, and other systemic conditions may become disabled during their pregnancy because of the adverse effect pregnancy has upon these conditions.
'The onset, termination and cause of the disability, related to pregnancy, can only be determined by a physician.' Brief for Appellees 59—60.
5
Nearly two-thirds of all women who work do so of necessity: either they are unmarried or their husbands earn less than $7,000 per year. See United States Department of Labor, Women's Bureau, Why Women Work (rev. ed. 1972); United States Department of Labor, Employment Standards Administration, The Myth and The Reality (May 1974 rev.). Moreover, this Court recognized in Kahn v. Shevin, 416 U.S. 351, 353, 94 S.Ct. 1734, 1736, 40 L.Ed.2d 189 (1974), that 'data compiled by the Women's Bureau of the United States Department of Labor show that in 1972 a woman working full time had a median income which was only 57.9% of the median for males—a figure actually six points lower than had been achieved in 1955.' (Footnote omitted.)
6
'The Commission carefully scrutinized both employer practices and their crucial impact on women for a substantial period of time and then issued its Guidelines after it became increasingly apparent that systematic and pervasive discrimination against women was frequently found in employers' denial of employment opportunity and benefits to women on the basis of the childbearing role, performed solely by women.' Brief for United States Equal Employment Opportunity Commission as Amicus Curiae 10.
7
See also the proposed Sex Discrimination Guidelines issued by the Department of Labor pursuant to Exec. Order 11246, virtually adopting the EEOC's pregnancy-related disabilities guideline. 38 Fed.Reg. 35337, 35338 (Dec. 27, 1973) (proposed 41 CFR § 60—20.3(h)(2)).
8
However, '(i)t is important to remember, especially in the cast context, that if an employee is being paid his regular pay while disabled, he cannot collect disability pay. Therefore, it follows that any alleged financial burden on the State will be greatly diminished when employers adhere to Title VII and treat pregnancy-related disabilities the same as other disabilities by allowing women to use accumulated sick leave and possibly annual leave as well.' Brief for United States Equal Employment Opportunity Commission as Amicus Curiae 21 n. 12.
9
Similarly, under the EEOC's Guidelines on Discrimination Because of Sex, '(i)t shall not be a defense under title VIII to a charge of sex discrimination in benefits that the cost of such benefits is greater with respect to one sex than the other.' 29 CFR § 1604.9(e).
| 12
|
417 U.S. 467
94 S.Ct. 2504.
41 L.Ed.2d 243
George P. BAKER et al., Petitioners,v.GOLD SEAL LIQUORS, INC.
No. 73—804.
Argued April 23, 1974.
Decided June 17, 1974.
Syllabus
Petitioners, trustees of a railroad in a § 77 reorganization proceeding, brought suit for freight charges against respondent shipper, and respondent counterclaimed for cargo loss and damage. The District Court granted petitioners' motion for summary judgment for entry of one judgment on their claim and another on the counterclaim, but set off one judgment against the other, resulting in a net judgment against petitioners for some $11,000. The Court of Appeals affirmed. Held: The Court of Appeals erred in allowing the setoff, since it thereby granted a preference to the claim of one creditor that happened to owe freight charges over other creditors that did not, and thus interfered with the Reorganization Court's duty under § 77e, 11 U.S.C. § 205(e), to approve a 'fair and equitable plan' that duly recognizes the rights of each class of creditors and stockholders and does not discriminate unfairly in favor of any class. Pp. 468—474.
7 Cir., 484 F.2d 950, reversed.
Paul R. Duke, Philadelphia, Pa., for petitioners.
Theodore J. Herst, Chicago, Ill., for respondent.
Opinion of the Court by Mr. Justice DOUGLAS, announced by Mr. Justice WHITE.
1
The Penn-Central Transportation Co. is in bankruptcy reorganization under § 77 of the Bankruptcy Act, 11 U.S.C. § 205. Petitioners are its trustees authorized to collect its assets, one of which is a claim for freight charges against respondent owed the bankrupt debtor. The claim on which this suit was brought was $8,256.61 and the amount is undisputed. Respondent filed a counterclaim for $19,319.42 for loss and damage to shipments over the debtor's lines. Its amount is also not disputed.
2
The trustees filed a motion for summary judgment asking the District Court to enter one judgment covering the amount of freight charges admittedly due and another for the amount claimed by respondent.
3
Previously the Reorganization Court in the Third Circuit had prohibited the various bank creditors from offsetting their claims against the trustees of the debtor. 315 F.Supp. 1281. Prior to the decision of the instant case that bank setoff case was affirmed by the Court of Appeals, 453 F.2d 520. Also prior to the ruling of the Court of Appeals in the instant case the Reorganization Court prohibited some shippers from setting off freight loss and damage claims against amounts owed for transportation claims. That order, 339 F.Supp. 603, was affirmed by the Court of Appeals, 477 F.2d 841, and by this Court, sub nom., United States Steel Corp. v. Trustees of Penn Central Transp. Co., 414 U.S. 885, 94 S.Ct. 231, 38 L.Ed.2d 137.
4
The District Court in the instant case granted the trustees' motion for summary judgment but set off one judgment against the other, which resulted in a net judgment in favor of respondent against the trustees in the amount of $11,017.01. The Court of Appeals affirmed, 484 F.2d 950, and we granted certiorari to resolve the conflict.
5
We reverse.
6
Ordinarily where a court has primary jurisdiction over the parties and over the subject matter, the power to resolve the amount of the claim and the counterclaim is clear. Indeed, under the Federal Rules of Civil Procedure the counterclaim may be compulsory. Rule 13(a).1 That is the procedure under § 68 of the Bankruptcy Act, 11 U.S.C. § 108.2
7
The problem of the bankruptcy Reorganization Court is somewhat different. Liquidation is not the objective. Rather, the aim is by financial restructuring to put back into operation a going concern.3 That entails two basic considerations: First is the collection of amounts owed the bankrupt to keep its cash inflow sufficient for operating purposes, at least at the survival levels. The second is to design a plan4 which creditors5 and other claimants will approve, which will pass scrutiny of the Interstate Commerce Commission, which will meet the fair-and-equitable standards required by the Act for court approval, and which will preserve an ongoing railroad in the public interest.6
8
Section 77a gives the Reorganization Court 'exclusive jurisdiction of the debtor and its property wherever located.'7 11 U.S.C. § 205(a). In furtherance of its long-range responsibilities the Reorganization Court enjoined secured creditors from selling collateral to reduce their claims.8 It then went on to bar enforcement of liens against the debtor, taking possession of its property, or obtaining judgments against the debtor, except for specified purposes.9 One court seized upon the last provision in the order which says 'that suits or claims for damages caused by the operation of trains, buses, or
8
The order provided in part: 'All persons, firms and corporations, holding collateral heretofore pledged by the Debtor as security for its notes or obligations or holding for the account of the Debtor deposit balances or credits be and each of them hereby are (sic) restrained and enjoined from selling, converting or otherwise disposing of such collateral, deposit balances or other credits, or any part thereof, or from offsetting the same, or any (sic) thereof, against any obligation of the Debtor, until further order of this Court.'
9
'All persons and all firms and corporations, whatsoever and wheresoever situated, located or domiciled, hereby are restrained and enjoined from interfering with, seizing, converting, appropriating, attaching, garnisheeing, levying upon, or enforcing liens upon, or in any manner whatsoever disturbing any portion of the assets, goods, money, deposit balances, credits, choses in action, interests, railroads, properties or premises belonging to, or in the possession of the Debtor as owner, lessee or otherwise, or from taking possession of or from entering upon, or in any way interfering with the same, or any part thereof, or from interfering in any manner with the operation of said railroads, properties or premises or the carrying on of its business by the Debtor under the order of this Court and from commencing or continuing any proceeding against the Debtor, whether for obtaining or for the enforcement of any judgment or decree or for any other purpose, provided that suits or claims for damages caused by the operation of trains, buses, or other means of transportation may be filed and prosecuted to judgment in any Court of competent jurisdiction. . . .' other means of transportation may be filed and prosecuted to judgment in any Court of competent jurisdiction,' to adjudicate the merits of a counterclaim, but declined to allow the setoff.10 But proof of the claim against the debtor is a distinct preliminary stage to a determination of what priority, if any, the claim that is proved receives in a reorganization plan.
There is a hierarchy of claims, the owner of the equity coming last. Wages owing workers running the trains have a high current priority. Secured creditors have by law a priority in the hierarchy. Unsecured creditors usually are pooled together. They may receive new securities, perhaps stock. Allowance of a setoff that reduces all or part of the debtor's claim against them is a form of priority. The guiding principle governing priorities is stated in § 77l(1), 11 U.S.C. § 205(e)(1): the Reorganization Court shall approve a plan if it 'is fair and equitable, affords due recognition to the rights of each class of creditors and stockholders, does not discriminate unfairly in favor of any class of creditors or stockholders, and will conform to the requirements of the law of the land regarding the participation of the various classes of creditors and stockholders.'
The term 'fair and equitable' has a long history going back at least to Northern Pacific R. Co. v. Boyd, 228 U.S. 482, 33 S.Ct. 554, 57 L.Ed. 931, and Kansas City Terminal R. Co. v. Central Union Trust Co., 271 U.S. 445, 46 S.Ct. 549, 70 L.Ed. 1028, whose fixed principle has been carried over into § 77e by our decisions.11 The plan is by the terms of § 77 a product of the Interstate Commerce Commission and the Reorganization Court working cooperatively together, New Haven Inclusion Cases, 399 U.S. 392, 431, 90 S.Ct. 2054, 2078, 26 L.Ed.2d 691. The public interest, as well as the interests of creditors and stockholders, is at issue.12 RFC v. Denver & R.G.W.R. Co., 328 U.S. 495, 535, 66 S.Ct. 1282, 1303, 90 L.Ed. 1400.
The allowance or disallowance of setoff may seem but a minor part of the architectural problem. But to the extent that it is allowed, it grants a preference to the claim of one creditor over the others by the happenstance that it owes freight charges that the others do not. That is a form of discrimination to which the policy of § 77 is opposed. As a general rule of administration for § 77 Reorganization Courts, the setoff should not be allowed.13
Reversed.
Mr. Justice STEWART, with whom Mr. Justice POWELL joins, concurring in the result.
The Court concludes that since the allowance of a setoff in a § 77 reorganization would grant 'a preference to the claim of one creditor over the others by the happenstance that it owes freight charges that the others do not,' such setoffs should be disallowed '(a)s a general rule of administration.' Ante, at this page. While I agree that the District Court should not have permitted a setoff in this case, I think that the broad rule adopted by the Court is unnecessary to reach this result, and I prefer to rest my conclusion on a narrower ground.
While judicial setoffs are specifically authorized in straight bankruptcy cases, § 68 of the Bankruptcy Act, 11 U.S.C. § 108, no express approval of them appears in the statute governing § 77 reorganizations.1 In Lowden v. North-western National Bank & Trust Co., 298 U.S. 160, 56 S.Ct. 696, 80 L.Ed. 1114 (1936), this Court stated that the approval of setoffs in § 68 did not control in railroad reorganizations but 'governs, if at all, by indirection and analogy according to the circumstances. The rule to be accepted for the purpose of such a suit is that enforced by courts of equity, which differs from the rule in bankruptcy chiefly in its greater flexibility, the rule in bankruptcy being framed in adaptation to standardized conditions, and that in equity varying with the needs of the occasion, though remaining constant, like the statute, in the absence of deflecting forces.' Id., at 164—165, 56 S.Ct. at 698.2
By announcing a doctrine barring judicial setoffs as a 'general rule' the Court in the present case adopts a rationale inconsistent with Lowden, which quite clearly envisioned a case-by-case analysis of the propriety of each attempted setoff in the light of equitable considerations. Rather than replacing this principle with a new and wholly inconsistent rule to be applied in all cases involving judicial setoffs, I would rest this decision on the particular facts before us, which adequately distinguish this case from the situation in Lowden3
Section 77a gives the Reorganization Court 'exclusive jurisdiction of the debtor and its property wherever located.' (Emphasis added.) It has been commonly accepted in the federal courts that 'property' within the meaning of this section includes intangibles such as choses in action. See 2 W. Collier, Bankruptcy 23.05(4), p. 485 (1971), and cases there cited. It follows, therefore, that respondent's debt to the Penn Central fell within the 'exclusive jurisdiction' of the Reorganization Court immediately upon the approval of the petition for reorganization. While such jurisdiction may not empower the Reorganization Court to enforce the cause of action, see id., at 489—490; In re Roman, 23 F.2d 556 (CA2 1928) (L. Hand, J.), it certainly does empower the court to protect the 'property' and to immunize it from diminution through setoff or counterclaim. To hold otherwise would be inconsistent with the function of the Reorganization Court to consolidate and protect the assets of the petitioning corporation. Callaway v. Benton, 336 U.S. 132, 147, 69 S.Ct. 435, 444, 93 L.Ed. 553 (1949); Warren v. Palmer, 310 U.S. 132, 139—141, 60 S.Ct. 865, 868—869, 84 L.Ed. 1118 (1940); Ex parte Baldwin, 291 U.S. 610, 615, 54 S.Ct. 551, 553, 78 L.Ed. 1020 (1934).
While the matter is not wholly free from doubt, I am persuaded that the Reorganization Court in this proceeding did in fact enjoin the allowance by any other court of judicial setoffs against any debts owed to the Penn Central.4
On this basis I join the judgment of the Court.
Mr. Justice REHNQUIST, dissenting.
The question in this case is whether the United States District Court for the Northern District of Illinois, wherein petitioners filed their claim for money damages against respondent, and the Court of Appeals for the Seventh Circuit, which affirmed the District Court's order setting off respondent's claim against petitioners, acted within the permissible limits of their discretion. The statute most closely in point is § 68a of the Bankruptcy Act, 11 U.S.C. § 108, which provides:
'(a) In all cases of mutual debts or mutual credits between the estate of a bankrupt and a creditor the account shall be stated and one debt shall be set off against the other, and the balance only shall be allowed or paid.'
In the only case of this Court dealing with the applicability of § 68a to railroad reorganizations, the Court said:
'(T)he trustees must have the power to gather in the assets and keep the business going. To exercise that power, they may find it necessary to sue, and the suit may turn upon the right of set-off, as it does in the case at hand. In a suit for such a purpose, a suit collateral to the main proceeding and initiated at a time when the outcome of that proceeding is still unknown and unknowable, section 68 of the statute does not control the disposition of the controversy ex proprio vigore. It governs, if at all, by indirection and analogy according to the circumstances. . . .' Lowden v. Northwestern National Bank & Trust Co., 298 U.S. 160, 164, 56 S.Ct. 696, 698, 80 L.Ed. 1114 (1936).
'When all the facts are known, they may be found to offer no excuse for a departure from the rule in bankruptcy which, as indicated already, is generally, even if not always, the rule in equity as well.' Id., at 166, 56 S.Ct. at 699.
The Court's opinion in Lowden, supra, makes no mention of subsection l of § 77 of the Bankruptcy Act, 11 U.S.C. § 205(l), which provides in pertinent part as follows:
'(l) Jurisdiction of court, duties of debtor and rights of creditors same as in voluntary bankruptcy.
'In proceedings under this section and consistent with the provisions thereof, the jurisdiction and powers of the court, the duties of the debtor and the rights and liabilities of creditors, and of all persons with respect to the debtor and his property, shall be the same as if a voluntary petition for adjudication had been filed and a decree of adjudication had been entered on the day when the debtor's petition was filed.'
Section 77, in turn, was a part of the Act of Mar. 3, 1933, c. 204, 47 Stat. 1467, which added Chapter VIII to the Bankruptcy Act. Any lingering doubt that the term 'voluntary petition for adjudication' in subsection l refers to ordinary bankruptcy proceedings is dispelled by an examination of § 73, which was the first section of that Act:
'Sec. 73. Additional Jurisdiction.—In addition to the jurisdiction exercised in voluntary and involuntary proceedings to adjudge persons bankrupt, courts of bankruptcy shall exercise original jurisdiction in proceedings for the relief of debtors, as provided in sections 74, 75, and 77 of this Act.' 47 Stat. 1467.
The language of subsection l of § 77, even more emphatically than the Lowden decision, would seem to unconditionally mandate the application of the rule regarding setoffs contained in § 68 of the Bankruptcy Act to railroad reorganizations such as this.
Subsection a of § 77, 11 U.S.C. § 205(a), giving the Reorganization Court 'exclusive jurisdiction of the debtor and its property wherever located,' upon which the Court's opinion heavily relies, seems to me to have virtually nothing to do with this case. We are not dealing with property that was actually or constructively in the possession of the trustees at the time of the commencement of the reorganization proceedings, nor are we dealing with a creditor who in any way submitted itself to the jurisdiction of the Reorganization Court in the Eastern District of Pennsylvania.
This is a simple contract claim for freight charges on the part of the trustees, against which the respondent has sought to set off a concededly valid claim for damage in transit. While the Reorganization Court undoubtedly had plenary authority over the trustees, and over the 'property' of the debtor, it certainly does not have such jurisdiction over whatever funds of respondent might be used to satisfy a judgment against it in favor of the trustees. The trustees' 'property' in this case is a chose in action and under no conceivable circumstances could § 77 authorize the summary determination of the claim in this case.
'(T)he bankruptcy court does not have summary jurisdiction to enforce a chose in action against the bankrupt's obligor, even when the bankrupt's rights seem clear. . . .' In re Lehigh & Hudson River R. Co., 468 F.2d 430, 433 (CA2 1972) (Friendly, C.J.).
'Even though (the obligor's) refusal were no better than colorable, its property remained its own; it had only broken its promise, and, like any other promisor, was liable to an action for damages. . . . It would not be permissible to collect even a bank deposit due a bankrupt by these means.' In re Roman, 23 F.2d 556, 558 (CA2 1928) (L. Hand, J.).
Cases such as Ex parte Baldwin, 291 U.S. 610, 54 S.Ct. 551, 78 L.Ed. 1020 (1934), and Warren v. Palmer, 310 U.S. 132, 60 S.Ct. 865, 84 L.Ed. 1118, (1940), do no more than reaffirm the well-established doctrine that the jurisdiction of the bankruptcy court over the property of the debtor is exclusive. They do not touch upon the case before us, where the trustees have chosen to convert the chose in action, which is concededly the property of the debtor and subject to the jurisdiction of the Reorganization Court, into a money judgment in another forum.
Callaway v. Benton, 336 U.S. 132, 69 S.Ct. 435, 93 L.Ed. 553 (1949), though not on all fours with the present case, can hardly be said to support the result reached by the Court. There an action had been brought in the state courts of Georgia to enjoin the board of directors of a corporation which had leased trackage to the Central of Georgia Railway from consenting to the plan of reorganization which had been proposed on behalf of Central of Georgia, which was a debtor in a § 77 proceeding. The bankruptcy court had in turn enjoined this litigation on the ground that it interfered with the exclusive jurisdiction of the bankruptcy court. This Court reversed that determination saying:
'We have held that a court of bankruptcy has exclusive and nondelegable control over the administration of an estate in its possession. Thompson v. Magnolia Petroleum Co., 1940, 309 U.S. 478, 60 S.Ct. 628, 84 L.Ed. 876; Isaacs v.
Hobbs Tie & Timber Co., 1931, 282 U.S. 734, 51 S.Ct. 270, 75 L.Ed. 645. There can be no question, however, that Congress did not give the bankruptcy court exclusive jurisdiction over all controversies that in some way affect the debtor's estate.' 336 U.S., at 142, 69 S.Ct., at 441 (footnote omitted).
If we accept Lowden as the final word from this Court on the question, even though the opinion nowhere refers to the language of subsection l, which on its face would carry over the rule of § 68 bag and baggage, the most that can be said in favor of the petitioners here is that the District Court in which suit is brought has discretion as to whether or not a setoff should be allowed.
Nothing could be more inconsistent with Lowden than the flat order of the Reorganization Court in this case, entered at the commencement of the reorganization proceedings, to the effect that no setoffs were to be allowed, unless it be that part of the Court's opinion in this case stating that '(a)s a general rule of administration for § 77 Reorganization Courts, the setoff should not be allowed.' Ante, at 474. And it seems a sufficient answer to the Court's observation that the allowance of a setoff grants a preference, ante, at 473, to say that the Bankruptcy Act's strictures against preferences apply with as much force to ordinary bankruptcies as to reorganizations, and yet § 68 of the Act specifically allows this type of 'preference' in an ordinary bankruptcy proceeding.
It may be that upon a proper showing to the District Court for the Northern District of Illinois the trustees could have satisfied that court that the allowance of a setoff in this case would be inconsistent with higher priorities of the reorganization. But no such showing was made by the trustees, and they were content to rely on the ex parte order of the Reorganization Court which made no pretense of considering matters on a case-bycase basis. The District Court for the Northern District of Illinois was, therefore, in my opinion, justified in authorizing the setoff under the doctrine of Lowden, and the Court of Appeals for the Seventh Circuit was correct in affirming its judgment.
1
Rule 13(a), the compulsory-counterclaim rule, requires a defendant to plead any counterclaim which 'arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.' The claim is not compulsory if it was the subject of another pending action at the time the action was commenced, or if the opposing party brought his suit by attachment or other process not resulting in personal jurisdiction but only in rem or quasi in rem jurisdiction. A counterclaim which is compulsory but is not brought is thereafter barred, e.g., Mesker Bros. Iron Co. v. Donata Corp., 401 F.2d 275, 279.
If a counterclaim is compulsory, the federal court will have ancillary jurisdiction over it even though ordinarily it would be a matter for a state court, e.g., Great Lakes Rubber Corp. v. Herbert Cooper Co., 286 F.2d 631. Under Rule 13(a)'s predecessor this Court held that 'transaction' is a word of flexible meaning which may comprehend a series of occurrences if they have logical connection, Moore v. New York Cotton Exchange, 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 720, and this is the rule generally followed by the lower courts in construing Rule 13(a), e.g., Great Lakes, supra; United Artists Corp. v. Masterpiece Productions, 2 Cir., 221 F.2d 213, 216.
Rule 13(b) permits as counterclaims, although not compulsory, 'any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim.' Thus the court may dispose of all claims between the parties in one proceeding whether or not they arose in the 'same transaction.'
2
Title 11 U.S.C. § 108 provides:
'a. In all cases of mutual debts or mutual credits between the estate of a bankrupt and a creditor the account shall be stated and one debt shall be set off against the other, and the balance only shall be allowed or paid.
'b. A set-off or counterclaim shall not be allowed in favor of any debtor of the bankrupt which (1) is not provable against the estate and allowable under subdivision g of section 93 of this title; or (2) was purchased by or transferred to him after the filing of the petition or within four months before such filing, with a view to such use and with knowledge or notice that such bankrupt was insolvent or had committed an act of bankruptcy.'
If the trustee in ordinary bankruptcy goes into a court that has jurisdiction and asserts a claim, the debtor of the bankrupt may raise as a setoff any claim he has against the bankrupt and the court ordinarily issues only one judgment for the difference.
In a straight bankruptcy case, Cumberland Glass Co. v. DeWitt, 237 U.S. 447, 35 S.Ct. 636, 59 L.Ed. 1042, the Court construed § 68 as 'permissive rather than mandatory' and as to which the bankruptcy court 'exercises its discretion . . . upon the general principles of equity.' Id., at 455, 35 S.Ct., at 639. And see Susquehanna Chemical Corp. v. Producers Bank & Trust Co., 3 Cir., 174 F.2d 783.
3
The dissent places mistaken reliance on subsection l of § 77 of the Bankruptcy Act, 11 U.S.C. § 205(l), to argue that the setoff provision of § 68, 11 U.S.C. § 108, necessarily applies to all reorganization proceedings under § 77. No authority is cited for this novel construction of subsection l, and indeed the very wording of the subsection itself makes clear that it applies only when 'consistent with the provisions' of § 77. We have long held that the distinctive purposes of § 77 may require different procedures than would be followed in ordinary bankruptcy. For example, in holding that under § 77 the Reorganization Court had authority to enjoin the sale of collateral if it would hinder or obstruct the preparation of a reorganization plan, we stated: 'It may be that in an ordinary bankruptcy proceeding the issue of an injunction in the circumstances here presented would not be sustained. As to that it is not necessary to express an opinion. But a proceeding under section 77 . . . is not an ordinary proceeding in bankruptcy. It is a special proceeding which seeks only to bring about a reorganization, if a satisfactory plan to that end can be devised. And to prevent the attainment of that object is to defeat the very end the accomplishment of which was the sole aim of the section, and thereby to render its provisions futile.' Continental Illinois Nat. Bank v. Rock Island R. Co., 294 U.S. 648, 676, 55 S.Ct. 595, 606, 79 L.Ed. 1110. And see New Haven Inclusion Cases, 399 U.S. 392, 420, 90 S.Ct. 2054, 2072, 26 L.Ed. 691.
Ordinary bankruptcy aims at liquidation of a business. Reorganization under § 77 aims at a continuation of the old business under a new capital structure that respects the relative priorities of the various claimants.
4
Section 77b, 11 U.S.C. § 205(b), defines a 'plan of reorganization.' The provisions for filing a 'plan' with the court and with the Interstate Commerce Commission are governed by § 77d, 11 U.S.C. § 205(d).
5
Unsecured creditors have the priority they would have had 'if a receiver in equity of the property of the debtor had been appointed by a Federal court on the day of the approval' of the bankruptcy petition and shall be treated as a separate class or classes. 11 U.S.C. § 205(b). As to that priority see Gregg v. Metropolitan Trust Co., 197 U.S. 183, 25 S.Ct. 415, 49 L.Ed 717. In St. Louis & S.F.R. Co. v. Spiller, 274 U.S. 304, 311, 47 S.Ct. 635, 637, 71 L.Ed. 1060, the Court said: '(B)y long established practice, the doctrine has been applied only to unpaid expenses incurred within six months prior to the appointment of the receivers. . . . The cases in which this time limit was not observed, are few in number and exceptional in character.'
6
New Haven Inclusion Cases, supra, 399 U.S., at 420, 90 S.Ct., at 2072.
7
Section 77a provides in relevant part: 'If the petition is so approved, the court in which the order is entered shall, during the pendency of the proceedings under this section and for the purposes thereof, have exclusive jurisdiction of the debtor and its property wherever located, and shall have and may exercise in addition to the powers conferred by this section all the powers, not inconsistent with this section, which a court of the United States would have had if it had appointed a receiver in equity of the property of the debtor for any purpose. Process of the court shall extend to and be valid when served in any judicial district.'
As Mr. Justice STEWART correctly notes, infra, at 476, it is settled that 'property' within the meaning of this section includes intangibles such as choses in action.
10
Baker v. Southeastern Michigan Shippers Ass'n, D.C., 376 F.Supp. 149.
11
Ecker v. Western Pacific R. Corp., 318 U.S. 448, 477—483, 63 S.Ct. 692, 709—712, 87 L.Ed. 892; Group of Investors v. Milwaukee R. Co., 318 U.S. 523, 539—541, 63 S.Ct. 727, 737—738, 87 L.Ed. 959; RFC v. Denver & R.G.W.R. Co., 328 U.S. 495, 516—520, 66 S.Ct. 1282, 1293—1295, 90 L.Ed. 1400. The same is true under § 101 et seq. (now c. X) of the Bankruptcy Act, 11 U.S.C. § 501 et seq. Consolidated Rock Products Co. v. Du Bois, 312 U.S. 510, 61 S.Ct. 675, 85 L.Ed. 982.
12
And see New Haven Inclusion Cases, 399 U.S., at 420, 90 S.Ct., at 2072.
13
Lowden v. Northwestern National Bank & Trust Co., 298 U.S. 160, 56 S.Ct. 696, 80 L.Ed. 1114, is not to the contrary. The Court there refused to answer the certified question because it did not know the factual setting in which the question had been raised. Much law has been fashioned in the reorganization field since 1936, the date of that decision. The contours of plans have emerged which have given new meaning and insight into the statutory words 'fair and equitable.' The preference sought here shows no exceptional circumstances which in equity justify the discrimination.
1
I am unable to conclude, as does the dissent, post, at 479 480, that subsection l of § 77 mandates allowance in § 77 reorganizations of all setoffs allowed by § 68 in straight bankruptcies. While the dissent's ingenious reading of the statute would provide an easy semantic solution to the problem presented in this case, I am impressed with the fact that neither this Court in Lowden v. Northwestern National Bank & Trust Co., 298 U.S. 160, 56 S.Ct. 696, 80 L.Ed. 1114 (1936), nor, apparently, any other federal trial or appellate court has considered subsection l to have any bearing whatsoever on the setoff problem. In the absence of any showing based on legislative history that such was the intent of Congress, and particularly in the absence of any briefing or oral argument on the matter, I would not, therefore, give this less-than-pellucid provision the force ascribed to it by the dissenting opinion.
2
These statements of the Court concerning allowance of judicial setoffs in § 77 cases were, in a technical sense, dicta. The Lowden case came to the Court on questions certified by the Court of Appeals for the Eighth Circuit, and the Court dismissed the certificate without formally answering the questions because of the 'defective form of the certificate . . ..' 298 U.S., at 166, 56 S.Ct., at 699. The Court's reasoning as to the availability of setoffs, however, has been viewed as authoritative. See, e.g., In re Lehigh & Hudson River R. Co., 468 F.2d 430, 433 (CA2 1972); In re Yale Express System, 362 F.2d 111, 116—117 (CA2 1966); Susquehanna Chemical Corp. v. Producers Bank & Trust Co., 174 F.2d 783, 787 (CA3 1949). See also 4 W. Collier, Bankruptcy 68.10(2), pp. 898—900, n. 17 (1971).
3
Because of my view of this case I need not comment on the propriety of the rule adopted by the Court, although I think there are strong arguments that the rule can be unfair, see, e.g., In re Lehigh & Hudson River R. Co., supra, 468 F.2d, at 434, and that those arguments are not dealt with in the Court's opinion today.
4
The Reorganization Court's initial order approving the Penn Central's petition for reorganization, filed on June 21, 1970, contained the following provisions:
'9. All persons and all firms and corporations, whatsoever and wheresoever situated, located or domiciled, hereby are restrained and enjoined from interfering with, seizing, converting, appropriating, attaching, garnisheeing, levying upon, or enforcing liens upon, or in any manner whatsoever disturbing any portion of the assets, goods, money, deposit balances, credits, choses in action, interests, railroads, properties or premises belonging to, or in the possession of the Debtor as owner, lessee or otherwise, or from taking possession of or from entering upon, or in any way interfering with the same, or any part thereof, or from interfering in any manner with the operation of said railroads, properties or premises or the carrying on of its business by the Debtor under the order of this Court and from commencing or continuing any proceeding against the Debtor, whether for obtaining or for the enforcement of any judgment or decree or for any other purpose, provided that suits or claims for damages caused by the operation of trains, buses, or other means of transportation may be filed and prosecuted to judgment in any Court of competent jurisdiction, and provided, further, that the title of any owner, whether as trustee or otherwise, to rolling stock equipment leased or conditionally sold to the Debtor, and any right of such owner to take possession of such property in compliance with the provisions of any such lease or conditional sale contract, shall not be affected by the provisions of this order.
'10. All persons, firms and corporations, holding collateral heretofore pledged by the Debtor as security for its notes or obligations or holding for the account of the Debtor deposit balances or credits be and each of them hereby (is) restrained and enjoined from selling, converting or otherwise disposing of such collateral, deposit balances or other credits, or any part thereof, or from off-offsetting the same, or any part thereof, against any obligation of the Debtor, until further order of this Court.'
| 78
|
417 U.S. 556
94 S.Ct. 2416
41 L.Ed.2d 304
Georgia Theresa GILMORE et al., Petitioners,v.CITY OF MONTGOMERY, ALABAMA, et al.
No. 72—1517.
Argued Jan. 15 and 16, 1974.
Decided June 17, 1974.
Syllabus
Petitioners, Negro citizens of Montgomery, Ala., brought this class action in 1958 to desegregate the city's public parks, and in 1959 the District Court ordered the parks desegregated. The Court of Appeals affirmed, and ordered the District Court to retain jurisdiction. Thereafter, however, segregated recreational programs were continued by the city in cooperation with the YMCA, public swimming pools were closed allegedly to prevent the mixing of races, and recreational facilities in Negro neighborhoods were not maintained equally with those in white neighborhoods. The petitioners by motion in 1970 reopened the litigation based on facts developed in Smith v. YMCA, 316 F.Supp. 899 (MD Ala.1970), in which relief was obtained against the 'coordinated effort' of the city and the YMCA to perpetuate the segregated parks. The claims raised by the 1970 motion were settled by agreement. In 1971 the petitioners filed the 'Motion for Supplemental Relief,' which forms the basis for the present phase of the litigation, complaining that the city was permitting racially segregated schools and other segregated private group, club, or organization that has a recreational facilities. The District Court enjoined the city and its officials from permitting or sanctioning the use of city recreational facilities by any racially segregated private school or affiliated group, or by any private nonschool group, club, or organization that has a racially discriminatory admissions policy. The Court of Appeals sustained the injunction insofar as the use of city facilities by segregated private schools was 'exclusive' and not in common with other citizens, but reversed the injunction as it applied to 'nonexclusive' use by segregated private schools and to use by nonschool groups. The court found an insufficient threat to desegregated public education to support an injunction restraining nonexclusive use by private school groups, and no 'symbiotic relationship' between the city and nonschool groups so that the injunction impermissibly intruded upon the freedom of association of citizens who were members of such groups. Held:
1. The city was properly enjoined from permitting exclusive access to its recreational facilities by segregated private schools and by groups affiliated with such schools. Pp. 566—569.
(a) Using the term 'exclusive use' as implying that an entire facility is exclusively, and completely, in the possession, control, and use of a private group, and as also implying, without mandating a decisionmaking role for the city in allocating such facilities among private and public groups, the city's policy of allocating facilities to segregated private schools, in the context of the 1959 order and subsequent history, created, in effect, 'enclaves of segregation' and deprived petitioners of equal access to parks and recreational facilities. Pp. 566-567.
(b) The exclusive use and control of city recreational facilities, however temporary, by private segregated schools were little different from the city's agreement with the YMCA to run a 'coordinated' but, in effect, segregated recreational program. This use carried the brand of 'separate but equal' and, in the circumstances of this case, was properly terminated by the District Court. Pp. 567—568.
(c) More importantly, the city's policies operated directly to contravene an outstanding school desegregation order, and any arrangement, implemented by state officials at any level, that significantly tends to perpetuate a dual school system, in whatever manner, is constitutionally impermissible. Pp. 568—569.
2. On the record, it is not possible to determine whether the use of the city's recreational facilities by private school groups in common with others, and by private nonschool organizations, involved the city so directly in the actions of those users as to warrant court intervention on constitutional grounds. Pp. 569—574.
(a) The record does not contain sufficient facts upon which to predicate legal judgment as to whether certain uses of city facilities in common by private school groups or exclusively or in common by nonschool groups contravened the parks desegregation order or the school desegregation order, or in some way constitute 'state action' ascribing to the city the discriminatory actions of the groups in question. P. 570.
(b) The portion of the District Court's order prohibiting the mere use of city recreational facilities by any segregated 'private group, club or organization' is invalid because it was not predicated upon a proper finding of state action. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627, distinguished. Pp. 572—574.
473 F.2d 832, reversed in part, and remanded.
Joseph J. Levin, Jr., Montgomery, Ala., for petitioners.
Joseph D. Phelps, Montgomery, Ala., for respondents.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
The present phase of this prolonged litigation concerns the propriety of a federal court's enjoining a municipality from permitting the use of public park recreational facilities by private segregated school groups and by other nonschool groups that allegedly discriminate in their membership on the basis of race. We granted certiorari to consider this important issue. 414 U.S. 907, 94 S.Ct. 215, 38 L.Ed.2d 145 (1973).
2
* Petitioners are Negro citizens of Montgomery, Alabama. In December 1958, now over 15 years ago, they instituted this class action to desegregate Montgomery's public parks. The defendants are the city, its Board of Commissioners and the members thereof, the Parks and Recreation Board and its members, and the Superintendent of the Parks and Recreational Program.
3
By their original complaint, the petitioners specifically challenged, on Fourteenth Amendment due process and equal protection grounds, a Montgomery ordinance (No. 21—57, adopted June 4, 1957) which made it a misdemeanor, subject to fine and imprisonment, 'for white and colored persons to enter upon, visit, use or in any way occupy public parks or other public houses or public places, swimming pools, wadding (sic) pools, beaches, lakes or ponds except those assigned to their respective races.' Both declaratory and injunctive relief were requested.1 On September 9, 1959, the District Court entered its judgment that the ordinance was unconstitutional and enjoined the defendants from enforcing the ordinance 'or any custom, practice, policy or usage which may require plaintiffs, or any other Negroes similarly situated, to submit to enforced segregation solely because of race or color in their use of any public parks owned and operated by the City of Montgomery, Alabama.' The judgment was accompanied by a memorandum opinion. 176 F.Supp. 776 (MD Ala.1959). On appeal, the Fifth Circuit affirmed but ordered the judgment modified to provide that the District Court retain jurisdiction. 277 F.2d 364, 368 (1960). The trial court, accordingly, ruled that it 'will and does hereby retain jurisdiction of this cause until further order.'2
4
In 1970, the petitioners sought to reopen the litigation. They filed a motion asking, among other relief, that the respondents be cited for contempt 'for deliberately avoiding and violating this Court's Judgment and Order in this case.'3 The motion contained allegations that some of the municipal parks had been reopened 'in such a manner to avoid the total and full integration of said parks'; that the city had conspired with the Montgomery YMCA to segregate swimming and other recreational facilities and programs; that recreational facilities were unequally allocated as between white and Negro neighborhoods; and that the city discriminated in its employment of personnel in recreational programs. The basis for these claims arose from other, separate litigation initiated in 1969 and resulting in the granting of affirmative relief to the plaintiffs in that suit. See Smith v. Young Men's Christian Assn., 316 F.Supp. 899 (MD Ala.1970), aff'd as modified, 462 F.2d 634 (CA5 1972). In that action the District Court found that the 'coordinated effort' of the city and of the YMCA, 316 F.Supp., at 908, and an agreement between them, reached shortly before the closing of the city parks and the entry of the court's 1959 decree, had effectuated 'the perpetuation of segregated recreational facilities and programs in the City of Montgomery,' id., at 909, and that it was 'unmistakably clear that its purpose was to circumvent the Supreme Court's and this Court's desegregation rulings in the area of public recreation.' Id., at 908.4 As summarized by the Court of Appeals, the District Court concluded:
5
'(T)he YMCA, as a result of the cooperative agreement, has been performing a statutorily declared 'public function'; the Montgomery Park and Recreation Board has, in effect, transferred some of its statutory authority and responsibility to the YMCA, thereby investing the YMCA with a municipal character; and therefore the YMCA has been serving as a municipal rather than a private agency in assisting the Park Board in providing recreational programs for the city.
6
'(T)he YMCA's discriminatory conduct denied the plaintiffs their Fourteenth Amendment rights to Equal Protection of the law; under the facts of this case the plaintiffs' showing of 'state action' satisfies the requirement under Title 42, U.S.C. Section 1983 that the YMCA's conduct be 'under color of law." 462 F.2d, at 641 642.
7
The modification by the Court of Appeals related only to the disapproval of a provision in the District Court's order directing a specific Negro-white ratio in the YMCA's board and executive committee. No review was sought here.
8
The claims raised by the petitioners in their 1970 motion were settled by agreement dated January 29, 1971.5 On July 29, the respondents filed their first written progress report. On September 8, the petitioners filed a 'Motion for Supplemental Relief.' App. 15. This motion forms the basis for the present phase of the litigation. The petitioners complained that the city was permitting racially segregated schools and other segregated private groups and clubs to use city parks and recreational facilities. They requested injunctive relief against 'the use of City owned and operated recreational facilities by any private school group, club, or organization which is racially segregated or which has a racially discriminatory admissions policy.'
9
The District Court granted the petitioners the relief they requested. 337 F.Supp. 22 (MD Ala.1972). The court reasoned that Montgomery officials were under an affirmative duty to bring about and to maintain a desegregated public school system. Providing recreational facilities to de facto or de jure segregated private schools was inconsistent with that duty because such aid enhanced the attractiveness of those schools, generated capital savings that could be used to improve their private educational offerings, and provided means to raise other revenue to support the institutions, all to the detriment of establishing the constitutionally mandated unitary public school system. The court, consequently, enjoined the city and its officials 'from permitting or in any way sanctioning the use of city owned or operated recreational facilities by any private school, or private school affiliated group, if such school or group is racially segregated or if it has a racially discriminatory admissions policy.' Id., at 26. The court went on, however, with sparse findings and brief discussion, and similarly enjoined the city and its officials from permitting or sanctioning the use of city recreational facilities 'by any private group, club or organization which is not affiliated with a private school and which has a racially discriminatory admissions policy.' Ibid.6
10
On appeal, the Court of Appeals reversed in part and remanded the case with directions. 473 F.2d 832 (CA5 1973). It sustained that part of the injunction which restrained the use of city facilities by segregated private schools when that use was 'exclusive' and not in common with other citizens. Id., at 837. The court ruled, however, that 'nonexclusive enjoyment' of those facilities by private school children 'was not proven to present a sufficient threat to desegregated public education to support an injunction restraining the clear personal right of the affected children to enjoy such usage in common with the rest of the public.' Ibid. With respect to that portion of the District Court's order concerning other private nonschool groups, the Court of Appeals held that there was no 'symbiotic relationship' of the kind present and condemned in Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). Consequently, it held that under Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972), that portion of the District Court's order dealing with nonschool groups had to be reversed because the injunction impermissibly intruded upon the freedom of association of citizens who were members of private groups. The court, accordingly, ordered deletion of certain paragraphs of the injunctive order and the clarification of others. 473 F.2d, at 839—840. The District Court complied with that mandate and, in particular, added the following paragraph to its injunctive order:
11
'The injunction issued by this Court does not prohibit the City of Montgomery from permitting non-exclusive access to public recreational facilities and general government services by private schools or school affiliated groups.'
12
The plaintiffs petitioned for certiorari; the defendants did not cross-petition.
II
13
The Equal Protection Clause of the Fourteenth Amendment does not prohibit the '(i)ndividual invasion of individual rights.' Civil Rights Cases, 109 U.S. 3, 11, 3 S.Ct. 18, 21, 27 L.Ed. 835 (1883). It does proscribe, however, state action 'of every kind' that operates to deny any citizen the equal protection of the laws. Ibid. This proscription on state action applies de facto as well as de jure because '(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 state action.' Evans v. Newton, 382 U.S. 296, 299, 86 S.Ct. 486, 488, 15 L.Ed.2d 373 (1966). In the present case we must determine whether the city of Montgomery engaged in discriminatory activity violative of the parks desegregation order. We must also decide whether the city's involvement in the alleged discriminatory activity of segregated private schools and other private groups, through its providing recreational facilities, constitutes 'state action' subject to constitutional limitation.
A.
14
The Court of Appeals affirmed the District Court insofar as the latter enjoined the 'exclusive possession of public recreational facilities such as football stadiums, baseball diamonds, basketball courts, and tennis courts for official athletic contests and similar functions sponsored by racially segregated private schools.' 473 F .2d, at 836—837. The boundaries of this 'exclusive' use approach, however, are not self-evident. We find the concept helpful not so much as a controlling legal principle but as a description of a type of use and, in the context of this case, suggestive of a means of allocating public recreational facilities. The term 'exclusive use' implies that an entire facility is exclusively, and completely, in the possession, control, and use of a private group.7 It also implies, without mandating, a decision-making role for the city in allocating such facilities among private and, for that matter, public groups.
15
Upon this understanding of the term, we agree with petitioners that the city's policy of allocating facilities to segregated private schools, in the context of the 1959 parks desegregation order and subsequent history, created, in effect, 'enclaves of segregation' and deprived petitioners of equal access to parks and recreational facilities. The city was under an affirmative constitutional duty to eliminate every 'custom, practice, policy or usage' reflecting an 'impermissible obeisance to the now thoroughly discredited doctrine of 'separate but equal." Watson v. Memphis, 373 U.S. 526, 538, 83 S.Ct. 1314, 1321, 10 L.Ed.2d 529 (1963). This obviously meant that discriminatory practices in Montgomery parks and recreational facilities were to be eliminated 'root and branch,' to use the phrase employed in Green v. County School Board of New Kent County, 391 U.S. 430, 438, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716 (1968).
16
Instead of prompt and orderly compliance with the District Court's mandate, however, the city of Montgomery engaged in an elaborate subterfuge to anticipate and circumvent the court's order. Segregated recreational programs continued to be presented through the conveniently cooperating private agency of the local YMCA. All public swimming pools were closed allegedly to prevent the mixing of races. Facilities in Negro neighborhoods were not maintained equally with those in white neighborhoods. In light of these facts, made part of the record in this case,8 it was entirely appropriate for the District Court carefully to scrutinize any practice or policy that would tend to abandon to segregated private groups facilities normally open to members of all races on an equal basis. Here, the exclusive use and control of city recreational facilities, however temporary, by private segregated schools were little different from the city's agreement with the YMCA to run a 'coordinated' but, in effect, segregated recreational program. Such use and control carried the brand of 'separate but equal' and, in the circumstances of this case, were properly terminated by the District Court.
17
Particularly important is the fact that the city's policies operated directly to contravene an outstanding school desegregation order. See Carr v. Montgomery County Board of Education, 232 F.Supp. 705 (MD Ala.1964); 253 F.Supp. 306 (1966); 289 F.Supp. 647 (1968), aff'd as modified, 400 F.2d 1, and 402 F.2d 782, 784, 787 (CA5 1968), rev'd and remanded sub nom. United States v. Montgomery County Board of Education, with directions to affirm the judgment of the District Court, 395 U.S. 225, 89 S.Ct. 1670, 23 L.Ed.2d 263 (1969).9 Certainly, the city's officials were aware of this order and were responsible for seeing that no actions on their part would significantly impede the progress of school desegregation in the city. Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958); Green v. County School Board of New Kent County, 391 U.S., at 437—438, 88 S.Ct., at 1693—1694; Alexander v. Holmes County Board of Education, 396 U.S. 19, 20, 90 S.Ct. 29, 30, 24 L.Ed.2d 19 (1969). Any arrangement, implemented by state officials at any level, which significantly tends to perpetuate a dual school system, in whatever manner is constitutionally impermissible. '(T)he constitutional rights of children not to be discriminated against . . . can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes for segregation whether attempted 'ingeniously or ingenuously." Cooper v. Aaron, 358 U.S., at 17, 78 S.Ct., at 1409. This means that any tangible state assistance, outside the generalized services government might provide to private segregated schools in common with other schools, and with all citizens, is constitutionally prohibited if it has 'a significant tendency to facilitate, reinforce, and support private discrimination.' Norwood v. Harrison, 413 U.S. 455, 466, 93 S.Ct. 2804, 2811, 37 L.Ed.2d 723 (1973). The constitutional obligation of the State '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.' Id., at 467, 93 S.Ct., at 2812.
18
Here, the city's actions significantly enhanced the attractiveness of segregated private schools, formed in reaction against the federal court school order, by enabling them to offer complete athletic programs. The city's provision of stadiums and recreational fields resulted in capital savings for those schools and enabled them to divert their own funds to other educational programs. It also provided the opportunity for the schools to operate concessions that generated revenue. We are persuaded, as were both the District Court and the Court of Appeals, that this assistance significantly tended to undermine the federal court order mandating the establishment and maintenance of a unitary school system in Montgomery. It therefore was wholly proper for the city to be enjoined from permitting exclusive access to public recreational facilities by segregated private schools and by groups affiliated with such schools.
B
19
Although the Court of Appeals ruled out the exclusive use of city facilities by private schools, it went on to modify the District Court order 'to make clear that the City of Montgomery is not prohibited from permitting nonexclusive access to public recreational facilities and general government services by private schools or school affiliated groups,' 473 F.2d, at 840, or from permitting access to these facilities by private organizations that have a racially discriminatory admissions policy. Id., at 839. Upon this record, we are unable to draw a conclusion as to whether the use of zoos, museums, parks, and other recreational facilities by private school groups in common with others, and by private nonschool organizations, involves government so directly in the actions of those users as to warrant court intervention on constitutional grounds.
20
It would be improper to determine at this stage the appropriateness of further relief in all the many and varied situations where facilities are used in common by school groups or used exclusively or in common by private groups. It is possible that certain uses of city facilities will be judged to be in contravention of the parks desegregation order or the school desegregation order, or in some way to constitute impermissible 'state action' ascribing to the city the discriminatory actions of the groups. The record before us does not contain sufficient facts upon which to predicate legal judgments of this kind. The questions to be resolved and the decisions to be made rest upon careful identification of the different types of city facilities that are available and the various uses to which they might be put by private groups.10
21
The difficulties that confront us on this record are readily apparent. Under appropriate circumstances, the District Court might conclude, as it did in the instance of exclusive use by private schools, that access in common to city facilities by private school groups would indeed contravene the school desegregation order. For example, all-white private school basketball teams might be invited to participate in a tournament conducted on public recreational facilities with desegregated private and public school teams. Because 'discriminatory treatment exerts a pervasive influence on the entire educational process,' Norwood v. Harrison, 413 U.S., at 469, 93 S.Ct., at 2812, citing Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), such assistance, although proffered in common with fully desegregated groups, might so directly impede the progress of court-ordered school desegregation within the city that it would be appropriate to fashion equitable relief '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). The essential finding justifying further relief would be a showing of direct impairment of an outstanding school desegregation order. Cooper v. Aaron, 358 U.S., at 17, 78 S.Ct., at 1409; Bush v. Orleans Parish School Board, 364 U.S. 500, 81 S.Ct. 260, 5 L.Ed.2d 245 (1960); Brown v. South Carolina State Board of Education, 296 F.Supp. 199 (SC), aff'd, 393 U.S. 222, 89 S.Ct. 449, 21 L.Ed.2d 391 (1968); Poindexter v. Louisiana Financial Assistance Comm'n, 275 F.Supp. 833 (ED La.1967), aff'd, 389 U.S. 571, 88 S.Ct. 693, 19 L.Ed.2d 780 (1968); Lee v. Macon County Board of Education, 267 F.Supp. 458 (MD Ala.), aff'd, sub nom. Wallace v. United States, 389 U.S. 215, 88 S.Ct. 415, 19 L.Ed.2d 422 (1967); Norwood v. Harrison, supra.
22
Relief would also be appropriate if a particular use constitutes a vestige of the type of state-sponsored racial segregation in public recreational facilities that was prohibited in the parks decree and likewise condemned in Watson v. Memphis, 373 U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529 (1963). See also Dawson v. Mayor and City Council of Baltimore, 220 F.2d 386 (CA4), aff'd, 350 U.S. 877, 76 S.Ct. 133, 100 L.Ed. 774 (1955); Muir v. Louisville Park Theatrical Assn., 347 U.S. 971, 74 S.Ct. 783, 98 L.Ed. 1112 (1954); Holmes v. City of Atlanta, 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 776 (1955); New Orleans City Park Improvement Assn. v. Detiege, 358 U.S. 54, 79 S.Ct. 99, 3 L.Ed.2d 46 (1958). For example, the record contains indications that there are all-white private and all-Negro public Dixie Youth and Babe Ruth baseball leagues for children, all of which use city-provided ballfields and lighting, balls, bats, mitts, and other aid. Were the District Court to determine that this dual system came about as a means of evading the parks decree, or of serving to perpetuate the separate-but-equal use of city facilities on the basis of race, through the aid and assistance of the city, further relief would be appropriate.
23
The problem of private group use is much more complex. The Court of Appeals relied on Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972), in concluding that the use of city facilities by private clubs did not reflect a 'symbiotic relationship' between government and those groups so as to constitute state action. 473 F.2d, at 838—839.
24
We feel that Moose Lodge is not fully applicable here. In that case, we generally followed the approach taken in Burton v. Wilmington Parking Authority, supra, where it was stated:
25
'Owing to the very 'largeness' of government, a multitude of relationships might appear to some to fall within the Amendment's embrace, but that, it must be remembered, can be determined only in the framework of the peculiar facts or circumstances present.' 365 U.S., at 725—726, 81 S.Ct., at 862.
26
In Moose Lodge the litigation was directly against a private organization, and it was alleged that the organization's racially discriminatory policies constituted state action. We held that there was no state action in the mere fact that the fraternal organization's beverage bar was licensed and regulated by the State. In contrast, here, as in Burton, the question of the existence of state action centers in the extent of the city's involvement in discriminatory actions by private agencies using public facilities, and in whether that involvement makes the city 'a joint participant in the challenged activity, which, on that account, cannot be considered to have been so 'purely private' as to fall without the scope of the Fourteenth Amendment.' 365 U.S., at 725, 81 S.Ct., at 862. Because the city makes city property available for use by private entities, this case is more like Burton than Moose Lodge. The question then is whether there is significant state involvement in the private discrimination alleged. Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967); Burton v. Wilmington Parking Authority, supra; Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966); Moose Lodge No. 107 v. Irvis, supra. 'The Court has never held, of course, that discrimination by an otherwise private entity would be violative of the Equal Protection Clause if the private entity receives any sort of benefit or service at all from the State, or if it is subject to state regulation in any degree whatever.' 407 U.S., at 173, 92 S.Ct., at 1971. Traditional state monopolies, such as electricity, water, and police and fire protection—all generalized governmental services—do not by their mere provision constitute a showing of state involvement in invidious discrimination. Norwood v. Harrison, 413 U.S., at 465, 93 S.Ct., at 2810; Moose Lodge No. 107 v. Irvis, 407 U.S., at 173, 92 S.Ct., at 1971. The same is true of a broad spectrum of municipal recreational facilities: parks, playgrounds, athletic facilities, amphitheaters, museums, zoos, and the like. Cf. Evans v. Newton, 382 U.S., at 302, 86 S.Ct., at 490. It follows, therefore, that the portion of the District Court's order prohibiting the mere use of such facilities by any segregated 'private group, club or organization' is invalid because it was not predicated upon a proper finding of state action.
27
If, however, the city or other governmental entity rations otherwise freely accessible recreational facilities, the case for state action will naturally be stronger than if the facilities are simply available to all comers without condition or reservation. Here, for example, petitioners allege that the city engages in scheduling softball games for an all-white church league and provides balls, equipment, fields, and lighting. The city's role in that situation would be dangerously close to what was found to exist in Burton, where the city had 'elected to place its power, property and prestige behind the admitted discrimination.' 365 U.S., at 725, 81 S.Ct., at 862. We are reminded, however, that the Court has never attempted to formulate 'an infallible test for determining whether the State . . . has become significantly involved in private discriminations' so as to constitute state action. Reitman v. Mulkey, 387 U.S., at 378, 87 S.Ct., at 1632. "Only by sifting facts and weighing circumstances' (on a case-by-case basis) can the 'nonobvious involvement of the State in private conduct be attributed its true significance." Ibid, quoting Burton, 365 U.S., at 722, 81 S.Ct., at 860. This is the task for the District Court on remand.
III
28
We close with this word of caution. It should be obvious that the exclusion of any person or group—all-Negro, all-Oriental, or all-white—from public facilities infringes upon the freedom of the individual to associate as he chooses. Mr. Justice Douglas emphasized this in his dissent, joined by Mr. Justice Marshall, in Moose Lodge. He observed: 'The associational rights which our system honors permit all white, all black, all brown, and all yellow clubs to be formed. They also permit all Catholic, all Jewish, or all agnostic clubs to be established. Government may not tell a man or woman who his or her associates must be. The individual can be as selective as he desires.' 407 U.S., at 179 180, 92 S.Ct., at 1975. The freedom to associate applies to the beliefs we share, and to those we consider reprehensible. It tends to produce the diversity of opinion that oils the machinery of democratic government and insures peaceful, orderly change. Because its exercise is largely dependent on the right to own or use property, Healy v. James, 408 U.S. 169, 181—183, 92 S.Ct. 2338, 2346—2347, 33 L.Ed.2d 266 (1972), any denial of access to public facilities must withstand close scrutiny and be carefully circumscribed. Certainly, a person's mere membership in an organization which possesses a discriminatory admissions policy would not alone be ground for his exclusion from public facilities. Having said this, however, we must also be aware that the very exercise of the freedom to associate by some may serve to infringe that freedom for others. Invidious discrimination takes its own toll on the freedom to associate, and it is not subject to affirmative constitutional protection when it involves state action. Norwood v. Harrison, 413 U.S., at 470, 93 S.Ct., at 2813.
29
The judgment of the Court of Appeals is therefore reversed in part. The case is remanded to that court with directions to remand it in turn to the District Court for further proceedings consistent with this opinion.
30
It is so ordered.
31
Judgment of Court of Appeals reversed in part and case remanded with directions.
32
Mr. Justice MARSHALL, concurring in part and dissenting in part.
33
Although I am in general agreement with the views expressed in my Brother WHITE'S opinion, I wish to address certain other considerations which I believe should govern appellate review of the order entered by the District Court in this case. That court, which has an unfortunately longstanding and by now intimate familiarity with the problems presented in this case, issued the supplemental relief at issue here in response to a motion by petitioners bringing to its attention the practice of the city of Montgomery of allowing private schools and clubs with racially discriminatory admissions policies or with segregated memberships to use football facilities maintained at city expense. For all that appears in the record, this practice, and the related practice of allowing private segregated schools and clubs to use baseball fields, basketball courts, and athletic equipment maintained and purchased at city expense, were the only problems before the District Court and the only problems intended to be cured by its supplemental order.
34
Both the Court of Appeals and this Court, rather than limiting their review of the order in conformity with its intended scope, have sought to project the order to a wide variety of problems not before the District Court—including so-called nonexclusive access by private school groups or nonschool organizations to zoos, museums, parks, nature walks, and other similar municipal facilities—and to review the order as so projected.
35
By rendering an advisory opinion on matters never presented to the District Court, the Court of Appeals and this Court have attempted to solve in the abstract problems which, in my view, should more appropriately be entrusted in large measure to the sound discretion of the District Court Judge who has lived with this case for so many years and who has a much better appreciation both of the extent to which these other matters are actual problems in the city of Montgomery and of the need for injunctive relief to resolve these problems to the extent they exist.
36
Since I find the District Court's order a permissible and appropriate remedy for the instances of unconstitutional state action brought to its attention, I would sustain and reinstate its order in its entirety.
37
Mr. Justice BRENNAN, concurring in the judgment.
38
The Court today affirms the Court of Appeals' judgment insofar as it affirmed paragraphs 1 and 2 of the District Court's order, ante, at 563—564, n. 6, as applied to enjoin respondents from permitting private segregated school groups to make 'exclusive use' of Montgomery's recreational facilities. Unlike the Court, I do not think that remand is required for a determination whether certain 'nonexclusive uses' by segregated school groups should also be proscribed, for I would also sustain paragraphs 1 and 2 insofar as they enjoin any school-sponsored or school-directed uses of the city recreational facilities that enable private segregated schools to duplicate public school operations at public expense.
39
Norwood v. Harrison, 413 U.S. 455, 93 S.Ct. 2804, 37 L.Ed.2d 723 (1973), struck down a state program which loaned textbooks to students without regard to whether the students attended private schools with racially discriminatory policies. Finding that free textbooks, like tuition grants to private school students, were a 'form of financial assistance inuring to the benefit of the private schools themselves,' id., at 464, 93 S.Ct., at 2810, Norwood held that the State could not, consistent with the Equal Protection Clause, grant aid that had 'a significant tendency to facilitate, reinforce, and support private discrimination.' Id., at 466, 93 S.Ct., at 2811. The reasoning of Norwood compels the conclusion that Montgomery must be enjoined from providing any assistance which financially benefits Montgomery's private segregated Schools, except, of course, '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 unconstitutionality is thus obvious of such 'nonexclusive uses' of municipal recreational facilities as the use of a portion of a park for a segregated school's gym classes or organized athletic contests. By making its municipal facilities available to private segregated schools for such activities, Montgomery unconstitutionally subsidizes its private segregated schools by relieving them of the expense of maintaining their own facilities.
40
Whether it is necessary to go even further and enjoin all school-sponsored and school-directed nonexclusive uses of municipal recreational facilities—as would my Brothers WHITE and DOUGLAS—is a question I would have the District Judge decide on remand. Private segregated schools are not likely to maintain their own zoos, museums, or nature walks. Consequently, permitting segregated schools to take their students on field trips to city facilities of that kind would not result in a direct financial benefit to the schools themselves. An injunction against use by segregated schools of such city facilities would be appropriate, in my view, only if the District Court should find that the relief is necessary to insure full effectuation of the Montgomery desegregation decrees.
41
I agree with the Court's vacation of the Court of Appeals' judgment reversing paragraphs 3 and 4 of the District Court's order relating to segregated nonschool groups, and with the direction to the Court of Appeals to enter a new judgment remanding the case to the District Court for further proceedings as to nonschool groups. A remand is required, in my view, because first the District Court must consider whether, for purposes of relief supplementary to the 1959 parks desegregation decree, a distinction between simply all-white groups and all-white groups with a segregated admissions policy is proper, ante, at 563—564, n. 6, and second, if that distinction is found meaningful, the District Court must clarify what evidence was relied upon to conclude that private organizations with racially discriminatory admissions policies are in fact using municipal facilities.*
42
But, should the District Court on remand find adequate evidence of use of the city's recreational facilities by private nonschool groups with segregated admissions policies, or find that the distinction between such groups and simply all-white groups is improper, I believe that the District Court must enjoin 'exclusive use' of recreational facilities by such groups. The complete record compiled in this case establishes beyond question that, even after the parks desegregation order of September 9, 1959, respondents continued for over a decade to engage in an unconstitutional de jure policy of deliberate segregation of the city's recreational facilities. The Court's reasoning in affirming the Court of Appeals' injunction against 'exclusive use' of municipal recreational facilities by private segregated school groups demonstrates this and bears repetition:
43
'(T)he city's policy of allocating facilities to segregated private schools, in the context of the 1959 parks desegregation order and subsequent history, created, in effect, 'enclaves of segregation' and deprived petitioners of equal access to parks and recreational facilities. The city was under an affirmative constitutional duty to eliminate every 'custom, practice, policy or usage' reflecting an 'impermissible obeisance to the now thoroughly discredited doctrine of 'separate but equal." . . . This obviously meant that discriminatory practices in Montgomery parks and recreational facilities were to be eliminated 'root and branch,' to use the phrase employed in Green v.
44
County School Board of New Kent County, 391 U.S. 430, 438, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716 (1968).' Ante, at 566—567.
45
Surely, respondents failure to extirpate 'enclaves of segregation' created by 'exclusive use' of city recreational facilities by private nonschool groups is no less a violation of the city's affirmative duty to desegregate the parks than its proved failure to eliminate 'enclaves' created by the 'exclusive use' of such facilities by school groups. Thus, unlike the Court, I see no reason for deferring an immediate expression on the significance of the city's involvement in the private discrimination of the nonschool groups, see ante, at 574, pending a more fully developed factual record. The justifications for finding that 'exclusive use' by school groups violated the 1959 parks desegregation order plainly also require that, if private nonschool groups are in fact making 'exclusive use' of municipal facilities, these uses, too, be found to violate the 1959 decree. In that circumstance, the unconstitutional 'state action' of the respondents consists of their continuing racially discriminatory policies and practices that frustrate and impede the dismantlement of Montgomery's de jure segregated parks.
46
Mr. Justice WHITE, with whom Mr. Justice DOUGLAS joins, concurring in the judgment.
47
I concur in the Court's judgment except that I would sustain the District Court not only to the extent the Court of Appeals affirmed its judgment but also insofar as it would bar the use of city-owned recreation facilities by students from segregated schools for events or occasions that are part of the school curriculum or organized and arranged by the school as part of its own program. I see no difference of substance between this type of use and the exclusive use that the majority agrees may not be permitted consistent with the Equal Protection Clause.
48
It may be useful also to emphasize that there is very plainly state action of some sort involved in the leasing, rental, or extending the use of scarce city-owned recreation facilities to private schools or other private groups. The facilities belong to the city, an arm of the State; the decision to lease or otherwise permit the use of the facilities is deliberately made by the city; and it is fair to assume that those who enter into these transactions on behalf of the city know the nature of the use and the character of the group to whom use is being extended. For Fourteenth Amendment purposes, the question is not whether there is state action, but whether the conceded action by the city, and hence by the State, is such that the State must be deemed to have denied the equal protection of the laws. In other words, by permitting a segregated school or group to use city-owned facilities, has the State furnished such aid to the group's segregated policies or become so involved in them that the denied equal protection? Under Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961), it is perfectly clear that to violate the Equal Protection Clause the State itself need not make, advise, or authorize the private decision to discriminate that involves the State in the practice of segregation or would appear to do so in the minds of ordinary citizens.
1
Prior to the institution of the suit, some of the plaintiffs had petitioned the city's Parks and Recreation Board, and the plaintiffs and others had petitioned the city's Board of Commissioners to provide access to the city parks for petitioners and all other Negro citizens similarly situated. The chairman of the Parks and Recreation Board replied that the Board 'has no authority in this matter.' The Board of Commissioners responded, 'The Commission will not operate integrated parks.' Exhibits attached to complaint filed Dec. 22, 1958, in Civil Action No. 1490—N, United States District Court for the Middle District of Alabama, Northern Division.
Within days after petitioners filed their suit, the city authorities, by resolution effective January 1, 1959, closed all the city's recreational parks, athletic fields, swimming facilities, and playgrounds, to all persons, white and black, and did not purport officially to reopen them until 1965. The city continued, however, to own and maintain them.
2
On April 22, 1964, after the case had lain dormant for four years, the District Court ordered the file closed 'without prejudice to any party to this litigation petitioning this Court for a reinstatement.'
3
Petitioners' motion, filed August 7, 1970 was styled as a 'Motion to Cite Defendants for Contempt and for Relief.' On October 2, the District Court granted the further motion of the petitioners that the August 7 motion be treated as an amendment to the original complaint.
4
The record in that case revealed a deliberate attempt to thwart the desegregation order of the District Court. In 1958, the city and the YMCA formed a coordination committee. It was agreed that the YMCA would not offer any program that would duplicate or conflict with one offered by the city's recreation department. The YMCA conducted football, basketball, and track programs for all the elementary school children of the city, but not for the junior high students. The responsibility for administering junior high programs was delegated to the Recreation Department. Each elementary school supposedly was assigned to the nearest YMCA branch. Yet the District Court found that 'every predominantly white school in the city is assigned to one of the three all-white branches even though the school may be closer to the Cleveland Avenue (Negro) branch. Every predominantly Negro school is, regardless of its location, assigned to the Cleveland Avenue branch.' 316 F.Supp., at 905. The YMCA also was given free use of the city's parks, playgrounds, and lighting equipment for its various athletic programs, and free water for its swimming pools. The city did not reopen its pools after it closed the parks in 1959. 'In 1957, the YMCA, operated one small branch in downtown Montgomery which had less than 1,000 members. By 1960, two years after the 'Co-ordination Committee' had been created, it operated five branches with five swimming pools. Today the YMCA operates six branches with eight swimming pools and has approximately 18,000 members.' Id., at 908.
5
The settlement agreement appears to have been aimed at providing equal recreational facilities for the Negro population of Montgomery. It specified the construction of new community centers and a new recreation center. Improvements were to be made to existing predominantly Negro facilities. The city agreed to maintain all community centers 'on an equal basis and to the same manner and extent.'
The agreement was approved by the District Court on January 29, 1971. Jurisdiction, however, was 'specifically retained,' and the defendants were ordered to file a written progress report every six months.
6
The District Court's decretal provisions in full text, except for a paragraph relating to the taxation of costs, are:
'1. That the City of Montgomery, Alabama's policy and practice of permitting the use of city owned or operated recreational facilities by any private school, or private school affiliated group, which school or group is racially segregated or which has a racially discriminatory admissions policy be and the same is hereby declared unconstitutional.
'2. That said City of Montgomery, Alabama, its officers, agents, servants, employees, and those acting in concert with it, be and each is hereby enjoined from permitting or in any way sanctioning the use of city owned or operated recreational facilities by any private school, or private school affiliated group, if such school or group is racially segregated or if it has a racially discriminatory admissions policy.
'3. That said City of Montgomery, Alabama's policy and practice of permitting the use of city owned or operated recreational facilities by any private group, club or organization which has a racially discriminatory admissions policy be and the same is hereby declared unconstitutional.
'4. That said City of Montgomery, Alabama, its officers, agents, servants, employees and those acting in concert with it, be and each is hereby enjoined from permitting or in any way sanctioning the use of city owned or operated recreational facilities by any private group, club or organization which is not affiliated with a private school and which has a racially discriminatory admissions policy.' 337 F.Supp., at 26.
7
We understand the term 'exclusive use' not to include the situation where only part of a facility may be allocated to or used by a group, even though that allocation or use results in the pro tanto exclusion of others. For example, the use of two of a total of 10 tennis courts by a private school group would not constitute an exclusive use; the use of all 10 courts would. This is not to say that the use of two by a private school group would be constitutionally permissible. See discussion, infra, at 570 571, n. 10.
8
Petitioners requested that the District Court take notice in this case of Smith v. Young Men's Christian Assn., 316 F.Supp. 899 (1970), in which the same District Judge had presided. The trial court ruled from the bench that it would take judicial notice 'of the evidence that was presented in the Y.M.C.A. case.' Excerpted transcript, testimony of William Chandler, Nov. 20, 1970, p. 7.
9
Petitioners also requested that the District Court in this case take notice of Carr v. Montgomery County Board of Education, supra. The trial court in its reported opinion, 337 F.Supp., at 24, referred to the duty of the State's school boards to desegregate.
10
The Brethren in concurrence state that they would sustain the District Court insofar as any school-sponsored or school-directed uses of the city recreational facilities enable private segregated schools to duplicate public school operations at public expense. It hardly bears repetition that the District Court's original injunction swept beyond these limits without the factfinding required for the prudent use of what would otherwise be the raw exercise of a court's equitable power.
It is by no means apparent, as our Brother Brennan correctly notes, which uses of city facilities in common with others would have 'a significant tendency to facilitate, reinforce, and support private discrimination.' Norwood v. Harrison, 413 U.S. 455, 466, 93 S.Ct. 2804, 2811, 37 L.Ed.2d 723 (1973). Moreover, we are not prepared, at this juncture and on this record, to assume the standing of these plaintiffs to claim relief against certain nonexclusive uses by private school groups. The plaintiffs in Norwood were parties to a school desegregation order and the relief they sought was directly related to the concrete injury they suffered. Here, the plaintiffs were parties to an action desegregating the city parks and recreational facilities. Without a properly developed record, it is not clear that every non-exclusive use of city facilities by school groups, unlike their exclusive use, would result in cognizable injury to these plaintiffs. The District Court does not have carte blanche authority to administer city facilities simply because there is past or present discrimination. The usual prudential tenets limiting the exercise of judicial power must be observed in this case as in any other.
*
My examination of the record reveals: On December 1, 1971, the parties had filed an 'Agreement for Submission of Case,' reciting that they agreed 'for the case to be submitted to the Court on the pleadings filed by the parties, the answers to interrogatories heretofore filed by the parties, the answers to interrogatories heretofore filed by the Defendants, and upon the Fact Stipulation as attached hereto.' The only interrogatories propounded in connection with the 'Motion for Further Relief,' with which this action was commenced, were propounded to respondent Henry M. Andrews, Director of the Parks and Recreation Department, and neither his answers nor anything contained in the Fact Stipulation, addresses a practice of respondents with respect to the use of facilities by nonschool private clubs and groups. There is, however, testimony on that subject in the depositions of the several respondents taken in an earlier proceeding on the amended complaint that had led to a settlement agreement. Testimony as to the use of facilities by an allegedly private segregated citywide Dixie Youth baseball league appears in the depositions of Joseph E. Marshall and Durwood Lynn Bozeman, the City's Athletic Director. Mr. Marshall's deposition states that, while the Dixie Youth teams at one time were officially segregated, they removed racial restrictions a number of years ago 'realizing that many of (the) Leagues used municipal facilities' and that invitations to join the leagues are issued to all children in the public schools, though all of the directors of the leagues are white. Mr. Bozeman's deposition testifies that the city supplies these leagues with playing facilities, pays for lighting, and gives each of them a dozen balls, chest protectors, leg guards, masks, mitts, and eight bats. Mr. Bozeman's deposition also covers the operations of the private, allegedly predominantly white, Babe Ruth league and a public Negro Babe Ruth league, and discusses the operations of allegedly segregated church softball leagues.
| 12
|
417 U.S. 583
94 S.Ct. 2464.
41 L.Ed.2d 325
Harold J. CARDWELL, Warden, Petitioner,v.Arthur Ben LEWIS.
No. 72—1603.
Argued March 18, 1974.
Decided June 17, 1974.
Syllabus
On July 24, 1967, law enforcement officers interviewed respondent in connection with a murder that had occurred five days before and viewed his automobile, which was thought to have been used in the commission of the crime. On October 10, in response to a previous request, respondent appeared at 10 a.m. for questioning at the office of the investigating authorities, having left his car at a nearby public commercial parking lot. Though the police had secured a warrant for respondent's arrest at 8 a.m., respondent was not arrested until late in the afternoon, after which his car was towed to a police impoundment lot, where a warrantless examination the next day of the outside of the car revealed that a tire matched the cast of a tire impression made at the crime scene and that paint samples taken from respondent's car were not different from foreign paint on the fender of the victim's car. Respondent was tried and convicted of the murder, and his conviction was affirmed on appeal. In a subsequent habeas corpus proceeding the District Court concluded that the seizure and examination of respondent's car violated the Fourth and Fourteenth Amendments and that the evidence obtained therefrom should have been excluded at the trial. The Court of Appeals affirmed, concluding that the scraping of paint from the car's exterior was a search within the meaning of the Fourth Amendment; that the search, which was not incident to respondent's arrest, was unconsented; and that the car's seizure could not be justified on the ground that the car was an instrumentality of the crime in plain view. held: The judgment is reversed. Pp. 585—596.
476 F.2d 467, reversed.
Mr. Justice BLACKMUN, joined by THE CHIEF JUSTICE, Mr. Justice WHITE, and Mr. Justice REHNQUIST, concluded that:
1
1. The examination of the exterior of respondent's automobile upon probable cause was reasonable and invaded no right of privacy that the requirement of a search warrant is meant to protect. Pp. 588—592.
2
(a) The primary object of the Fourth Amendment is the protection of privacy. Warden v. Hayden, 387 U.S. 294, 305—306, 87 S.Ct. 1642, 1649—1650, 18 L.Ed.2d 782. P. 589.
3
(b) Generally, less stringent warrant requirements are applied to vehicles than to homes or offices, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, and the search of a vehicle is less intrusive and implicates a lesser expectation of privacy. Pp. 589—591.
4
(c) The 'search' in this case, concededly made on the basis of probable cause, infringed no expectation of privacy. Pp. 591 592.
5
2. Under the circumstances of this case the seizure by impounding the car was not unreasonable. Pp. 592—596.
6
(a) The vehicle was seized from a public place, where access was not meaningfully restricted. Chambers v. Maroney, supra, followed; Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, distinguished. Pp. 593—595.
7
(b) Exigent circumstances justifying a warrantless search of a vehicle are not limited to situations where probable cause is unforeseeable and arises only at the time of arrest. Cf. Chambers, 399 U.S., at 50—51, 90 S.Ct., at 1980—1981. Pp. 595—596.
8
Mr. Justice POWELL, being of the view that the inquiry of a federal court on habeas corpus review of a state prisoner's Fourth Amendment claim should be confined solely to the question whether the defendant had an opportunity in the state courts to raise that claim and have it adjudicated fairly, would reverse the judgment of the Court of Appeals since respondent does not contend that he was denied that opportunity. See Schneckloth v. Bustamonte, 412 U.S. 218, 250, 93 S.Ct. 2041, 2059, 36 L.Ed.2d 854 (Powell, J., concurring). P. 596.
9
Leo J. Conway, Columbus, Ohio, for petitioner.
10
Bruce A. Campbell, Columbus, Ohio, for respondent.
11
Andrew L. Frey, Washington, D.C., for the United States, as amicus curiae, by special leave of Court.
12
Mr. Justice BLACKMUN announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, Mr. Justice WHITE, and Mr. Justice REHNQUIST join.
13
This case presents the issue of the legality, under the Fourth and Fourteenth Amendments, of a warrantless seizure of an automobile and the examination of its exterior at a police impoundment area after the car had been removed from a public parking lot.
14
Evidence obtained upon this examination was introduced at the respondent's state court trial for first-degree murder. He was convicted. The Federal District Court, on a habeas corpus application, ruled that the examination was a search violative of the Fourth and Fourteenth Amendments. 354 F.Supp. 26 (SD Ohio 1972). The United States Court of Appeals for the Sixth Circuit affirmed. 476 F.2d 467 (1973). We granted certiorari, 414 U.S. 1062, 94 S.Ct. 567, 38 L.Ed.2d 467 (1973), and now conclude that, under the circumstances of this case, there was no violation of the protection afforded by the Amendments.
15
* In 1968 respondent Arthur Ben Lewis, Jr., was tried and convicted by a jury in an Ohio state court for the first-degree murder of Paul Radcliffe. On appeal, the Supreme Court of Ohio affirmed the judgment of conviction. State v. Lewis, 22 Ohio St.2d 125, 258 N.E.2d 445 (1970). This Court denied review. Lewis v. Ohio, 400 U.S. 959, 91 S.Ct. 359, 27 L.Ed. 268 (1970).
16
On respondent's federal habeas application, the District Court, from the record and after an evidentiary hearing, adduced the following facts:
17
On the afternoon of July 19, 1967, Radcliffe's body was found near his car on the banks of the Olentangy River in Delaware County, Ohio. The car had gone over the embankment and had come to rest in brush. Radcliffe had died from shotgun wounds. Casts were made of tire tracks at the scene, and foreign paint scrapings were removed from the right rear fender of Radcliffe's automobile.
18
Within five days of Radcliffe's death, the investigation began to focus upon respondent Lewis. It was learned that Lewis knew Radcliffe. Lewis had been negotiating the sale of a business and had executed a contract of sale. The purchaser, Jack Smith, employed Radcliffe, an accountant, to examine Lewis' books. Police went to Lewis' place of business to question him and there observed the model and color of his car in the thought that it might have been used to push the Radcliffe vehicle over the embankment. Not until several months later, however, in late September, was Lewis again questioned. On October 9, he was asked to appear the next morning at the Office of the Division of Criminal Activities in Columbus for further interrogation.
19
On October 10, at 8 a.m., a warrant for respondent's arrest was obtained.1 The District Court found that at this time, in addition to probable cause for the arrest, the police also had probable cause to believe that Lewis' car was used in the commission of the crime. An automobile similar to his had been observed leaving the scene; the color of his vehicle was similar to the color of the paint scrapings from the victim's car; in a telephone call to Mrs. Smith, made by a person who said he was Radcliffe, but proved not to be,2 the caller made statements that, if true, would benefit only Lewis; he had had body repair work done on the grille, hood, right front fender, and other parts of his car on the day following the crime; and the victim's desk calendar for the day of his death showed the notation, 'Call Ben Lewis.'3
20
Respondent Lewis complied with the request to appear. He drove his car to the Activities Office, placed it in a public commercial parking lot a half block away, and arrived shortly after 10 a.m. Although the police were in possession of the arrest warrant for the entire period that Lewis was present, he was not served with that warrant or arrested until late that afternoon, at approximately 5 p.m. Two hours earlier, Lewis had been permitted to call his lawyer, and two attorneys were present on his behalf in the office at the time of the formal arrest. Upon the arrest, Lewis' car keys and the parking lot claim check were released to the police. A tow truck was dispatched to remove the car from the parking lot to the police impoundment lot.
21
The impounded car was examined the next day by a technician from the Ohio Bureau of Criminal Investigation. The tread of its right rear tire was found to match the cast of a tire impression made at the scene of the crime.4 The technician testified that, in his opinion, the foreign paint on the fender of Radcliffe's car was not different from the paint samples taken from respondent's vehicle, that is, there was no difference in color, texture, or order of laying of the paint.
22
The District Court concluded that the seizure and examination of Lewis' car were violative of the Fourth and Fourteenth Amendments, and that the evidence obtained therefrom should have been excluded at the state court trial. The court, accordingly, issued a writ of habeas corpus requiring the State to 'initate action for a new trial of' respondent within 90 days or, in the alternative, to release him. 354 F.Supp., at 44. The Court of Appeals, in affirming, held that the scraping of paint from the exterior of Lewis' car was in fact a search, within the meaning of the Fourth Amendment; that there was no consent to that search; that it was not incident to Lewis' arrest; and that the seizure of the car could not be justified on the ground that the vehicle was an instrumentality of the crime in plain view.
II
23
This case is factually different from prior car search cases decided by this Court. The evidence with which we are concerned is not the product of a 'search' that implicates traditional considerations of the owner's privacy interest. It consisted of paint scrapings from the exterior and an observation of the tread of a tire on an operative wheel. The issue, therefore, is whether the examination of an automobile's exterior upon probable cause invades a right to privacy which the interposition of a warrant requirement is meant to protect. This is an issue this Court has not previously addressed.
24
The common-law notion that a warrant to search and seize is dependent upon the assertion of a superior government interest in property, see, e.g., Entick v. Carrington, 19 How.St.Tr. 1029, 1066 (1765), and the proposition that a warrant is valid 'only when a primary right to such search and seizure may be found in the interest which the public or the complainant may have in the property to be seized, or in the right to the possession of it,' Gouled v. United States, 255 U.S. 298, 309, 41 S.Ct. 261, 265, 65 L.Ed. 647 (1921), were explicitly rejected as controlling Fourth Amendment considerations in Warden v. Hayden, 387 U.S. 294, 302 306, 87 S.Ct. 1642, 1647—1650, 18 L.Ed.2d 782 (1967). Rather than property rights, the primary object of the Fourth Amendment was determined to be the protection of privacy. Id., at 305—306, 87 S.Ct., at 1649—1650. And it had been said earlier: 'The decisions of this Court have time and again underscored the essential purpose of the Fourth Amendment to shield the citizen from unwarranted intrusions into his privacy.' Jones v. United States, 357 U.S. 493, 498, 78 S.Ct. 1253, 1256, 2 L.Ed.2d 1514 (1958). See also Schmerber v. California, 384 U.S. 757, 769—770, 86 S.Ct. 1826, 1835, 16 L.Ed.2d 908 (1966); Katz v. United States, 389 U.S. 347, 350, 88 S.Ct. 507, 510, 19 L.Ed.2d 576 (1967); United States v. Dionisio, 410 U.S. 1, 14—15, 93 S.Ct. 764, 771—772, 35 L.Ed.2d 67 (1973).
25
At least since Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), the Court has recognized a distinction between the warrantless search and seizure of automobiles or other movable vehicles, on the one hand, and the search of a home or office, on the other. Generally, less stringent warrant requirements have been applied to vehicles. In Chambers v. Maroney, 399 U.S. 42, 49, 90 S.Ct. 1975, 1980, 26 L.Ed.2d 419 (1970), the Court chronicled the development of car searches and seizures.5 An underlying factor in the Carroll-Chambers line of decisions has been the exigent circumstances that exist in connection with movable vehicles. '(T)he circumstances that furnish probable cause to search a particular auto for particular articles are most often unforeseeable; moreover, the opportunity to search is fleeting since a car is readily movable.' Chambers v. Maroney, 399 U.S., at 50—51, 90 S.Ct., at 1981. This is strikingly true where the automobile's owner is alerted to police intentions and, as a consequence, the motivation to remove evidence from official grasp is heightened.
26
There is still another distinguishing factor. '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.' Almeida-Sanchez v. United States, 413 U.S. 266, 279, 93 S.Ct. 2535, 2542, 37 L.Ed.2d 596 (1973) (Powell, J., concurring). One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one's residence or as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where its occupants and its contents are in plain view. See People v. Case, 200 Mich. 379, 388— 389, 190 N.W. 289, 292 (1922). 'What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.' Katz v. United States, 389 U.S., at 351, 88 S.Ct., at 511; United States v. Dionisio, 410 U.S., at 14, 93 S.Ct., at 771. This is not to say that no part of the interior of an automobile has Fourth Amendment protection; the exercise of a desire to be mobile does not, of course, waive one's right to be free of unreasonable government intrusion. But insofar as Fourth Amendment protection extends to a motor vehicle, it is the right to privacy that is the touchstone of our inquiry.
27
In the present case, nothing from the interior of the car and no personal effects, which the Fourth Amendment traditionally has been deemed to protect, were searched or seized and introduced in evidence.6 With the 'search' limited to the examination of the tire on the wheel and the taking of paint scrapings from the exterior of the vehicle left in the public parking lot, we fail to comprehend what expectation of privacy was infringed.7 Stated simply, the invasion of privacy, 'if it can be said to exist, is abstract and theoretical.' Air Pollution Variance Board v. Western Alfalfa Corp., 416 U.S. 861, 865, 94 S.Ct. 2114, 2116, 40 L.Ed.2d - (1974). Under circumstances such as these, where probable cause exists, a warrantless examination of the exterior of a car is not unreasonable under the Fourth and Fourteenth Amendments.8
28
Here, it has been established and is conceded that the police had probable cause to search Lewis' car. An automobile similar in color and model to his car had been seen leaving the scene of the crime. This similarity was corroborated by comparison of the paint scrapings taken from the victim's car with the color and paint of Lewis' automobile. Lewis had had repair work done on his car immediately following the death of the victim. And he had a nexus with Radcliffe on the day of death. All this provided reason to believe that the car was used in the commission of the crime for which Lewis was arrested. Cooper v. California, 386 U.S. 58, 61, 87 S.Ct. 788, 790, 17 L.Ed.2d 730 (1967).
III
29
Concluding, as we have, that the examination of the exterior of the vehicle upon probable cause was reasonable, we have yet to determine whether the prior impoundment of the automobile rendered that examination a violation of the Fourth and Fourteenth Amendments. We do not think that, because the police impounded the car prior to the examination, which they could have made on the spot, there is a constitutional barrier to the use of the evidence obtained thereby. Under the circumstances of this case, the seizure itself was not unreasonable.
30
Respondent asserts that this case is indistinguishable from Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). We do not agree. The present case differs from Coolidge both in the scope of the search9 and in the circumstances of the seizure. Since the Coolidge car was parked on the defendant's driveway, the seizure of that automobile required an entry upon private property. Here, as in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), the automobile was seized from a public place where access was not meaningfully restricted. This is, in fact, the ground upon which the Coolidge plurality opinion distinguished Chambers, 403 U.S., at 463 n. 20, 91 S.Ct., at 2036. See also Cady v. Dombrowski, 413 U.S. 433, 446 447, 93 S.Ct. 2523, 2530—2531, 37 L.Ed.2d 706 (1973).
31
In considering whether the lack of a warrant to seize a vehicle invalidates the otherwise legal examination of the car, Chambers is highly pertinent. In Chambers, four men in an automobile were arrested shortly after an armed robbery. The Court concluded that there was probable cause to arrest and probable cause to search the vehicle. The car was taken from the highway to the police station where, some time later, a search producing incriminating evidence, was conducted. We stated:
32
'For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.
33
'. . . The probable-cause factor still obtained at the station house and so did the mobility of the car unless the Fourth Amendment permits a warrantless seizure of the car and the denial of its use to anyone until a warrant is secured. In that event there is little to choose in terms of practical consequences between an immediate search without a warrant and the car's immobilization until a warrant is obtained.' 399 U.S., at 52, 90 S.Ct., at 1981.
34
The fact that the car in Chambers was seized after being stopped on a highway, whereas Lewis' car was seized from a public parking lot, has little, if any, legal significance.10 The same arguments and considerations of exigency, immobilization on the spot, and posting a guard obtain. In fact, because the interrogation session ended with awareness that Lewis had been arrested and that his car constituted incriminating evidence, the incentive and potential for the car's removal substantially increased. There was testimony at the federal hearing that Lewis asked one of his attorneys to see that his wife and family got the car, and that the attorney relinquished the keys to the police in order to avoid a physical confrontation. 354 F.Supp., at 33. In Chambers, all occupants of the car were in custody and there were no means of relating this fact or the location of the car (if it had not been impounded) to a friend or confederate. Chambers also stated that a search of the car on the spot was impractical because it was dark and the search could not be carefully executed. 399 U.S., at 52 n. 10, 90 S.Ct., at 1981. Here too, the seizure facilitated the type of close examination necessary.11
35
Respondent contends that here, unlike Chambers, probable cause to search the car existed for some time prior to arrest and that, therefore, there were no exigent circumstances. Assuming that probable cause previously existed, we know of no case or principle that suggests that the right to search on probable cause and the reasonableness of seizing a car under exigent circumstances are foreclosed if a warrant was not obtained at the first practicable moment. Exigent circumstances with regard to vehicles are not limited to situations where probable cause is unforeseeable and arises only at the time of arrest. Cf. Chambers, id., at 50—51, 90 S.Ct., at 1980—1981. The exigency may arise at any time, and the fact that the police might have obtained a warrant earlier does not negate the possibility of a current situation's necessitating prompt police action.12
36
The judgment of the Court of Appeals is reversed.
37
It is so ordered.
38
Reversed.
39
Mr. Justice POWELL, concurring in the result.
40
I would reverse the judgment of the Court of Appeals 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 (1973). As stated therein, 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 (for habeas corpus) was provided a fair opportunity to raise and have adjudicated the question in state courts.' Ibid. In this case there is no contention that respondent was denied a full and fair opportunity to litigate his claim in the state courts.
41
Mr. Justice STEWART, with whom Mr. Justice DOUGLAS, Mr. Justice BRENNAN, and Mr. Justice MARSHALL join, dissenting.
42
The most fundamental rule in this area of constitutional law is that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.' 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. See also Camara v. Municipal Court, 387 U.S. 523, 528—529, 87 S.Ct. 1727, 1730—1731, 18 L.Ed.2d 930. Since there was no warrant authorizing the search and seizure in this case, and since none of the 'specifically established and well-delineated exceptions' to the warrant requirement here existed, I am convinced the judgment of the Court of Appeals must be affirmed.1
43
In casting about for some way to avoid the impact of our previous decisions, the plurality opinion first suggests, ante, at 599—589, that no 'search' really took place in this case, since all that the police did was to scrape paint from the respondent's car and make observations of its tires. Whatever merit this argument might possess in the abstract, it is irrelevant in the circumstances disclosed by this record. The argument is irrelevant for the simple reason that the police before taking the paint scrapings and looking at the tires, first took possession of the car itself. The Fourth and Fourteenth Amendments protect against 'unreasonable searches and seizures,' and there most assuredly was a seizure here.
44
The plurality opinion next seems to suggest that the basic constitutional rule can be overlooked in this case because the subject of the seizure was an automobile. It is true, of course, that a line of decisions, beginning with Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, have recognized a socalled 'automobile exception' to the constitutional requirement of a warrant. But '(t)he word 'automobile' is not a talisman in whose presence the Fourth Amendment fades away and disappears.' Collidge, supra, 403 U.S. at 461—462, 91 S.Ct., at 2035. Rather, the Carroll doctrine simply recognizes the obvious—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.' Carroll, supra, 267 U.S., at 153, 45 S.Ct. at 285. See also Almeida-Sanchez v. United States, 413 U.S. 266, 269, 93 S.Ct. 2535, 2537, 37 L.Ed.2d 596. Where there is no reasonable likelihood that the automobile would or could be moved, the Carroll doctrine is simply inapplicable. See, e.g., Coolidge, supra; Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777.
45
The facts of this case make clear beyond peradventure that the 'automobile exception' is not available to uphold the warrantless seizure of the respondent's car. Well before the time that the automobile was seized, the respondent—and the keys to his car—were securely within police custody. There was thus absolutely no liklihood that the respondent could have either moved the car or meddled with it during the time necessary to obtain a search warrant. And there was no realistic possibility that anyone else was in a position to do so either. I am at a loss, therefore, to understand the plurality opinion's conclusion, ante at 595, that there was a 'potential for the car's removal' during the period immediately preceding the car's seizure. The facts of record can only support a diametrically opposite conclusion.
46
Finally, the plurality opinion suggests that other 'exigent circumstances' might hav excused the failure of the police to procure a warrant. The opinion nowhere states what these mystical exigencies might have been, and counsel for the petitioner has not been so inventive as to suggest any.2 Since the authorities had taken care to procure an arrest warrant even before the respondent arrived for questioning, it can scarcely be said that probable cause was not discovered until so late a point in time as to prevent the obtaining of a warrant for seizure of the automobile. And, with the automobile effectively immobilized during the period of the respondent's interrogation, the fear that evidence might be destroyed was hardly an exigency, particularly when it is remembered that no such fear prompted a seizure during all the preceding months while the respondent, though under investigation, had been in full control of the car.3 This is, quite simply, a case where no exigent circumstances existed.4
47
Until today it has been clear that '(n)either Carroll . . . 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, 399 U.S. 42, 50, 90 S.Ct. 1975, 1980, 26 L.Ed.2d 419. I would follow the settled constitutional law established in our decisions and affirm the judgment of the Court of Appeals.
1
The arrest warrant was obtained in Delaware County, where the crime was committed. The Activities Office is in adjacent Franklin County. In Ohio, an arrest warrant may be served in any county of the State. Ohio Rev.Code Ann. § 2941.36 (1953). In contrast, a search warrant in Ohio may be issued by a judge or magistrate only 'within his jurisdiction.' Ohio Rev.Code Ann. § 2933.21 (Supp.1972). Thus, a search warrant obtained in Delaware County is not valid in Franklin County.
2
The call was made at about 9:30 a.m. on July 19 by a man who identified himself to Mrs. Smith as Radcliffe and who stated that the books were in 'A—1 condition.' Mrs. Smith, who knew the victim, did not identify the caller as Radcliffe. Gunshots were heard between 8 a.m. and 8:30 a.m. that day by two women who lived near the site of the crime. It thus became clear that someone had impersonated Radcliffe in making the telephone call.
3
The calendar's page for July 19 was missing. Investigation disclosed a writing indentation, on the next and underlying page for July 20, which indicated what had been written on the page for July 19.
4
Apparently, the car's trunk was also opened and a tire in the trunk was observed. 354 F.Supp. 26, 33; 476 F.2d 467, 468. No evidence obtained from any part of the interior of the vehicle, however, was introduced.
5
The Court there discussed the following post-Carroll cases: Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629 (1931); Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151 (1938); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968). Cases decided since Chambers and that now might be added to the list include Collidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973); Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). See also, Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Note, Warrantless Searches and Seizures of Automobiles, 87 Harv.L.Rev. 835 (1974).
6
Petitioner contends that Lewis' car keys and the parking lot claim check were seized in plain view as an incident to his arrest, and that this seizure served to transfer constructive possession of the vehicle which could then be searched and seized as an instrumentality of the crime. We feel that the District Court and the Court of Appeals were correct in rejecting this argument. Irrespective of the plain-view or instrumentality analyses, the concept of constructive possession has not been found to justify the search or seizure of an item not in actual possession.
7
As has been noted, the arrest was made at the Office of the Division of Criminal Activities; but the examination of the vehicle took place some time later at the police impoundment lot. This difference in time and place eliminates any search-incident-to-an-arrest contention.
'The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime things which might easily happen where the weapon or evidence is on the accused's person or under his immediate control. 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.' Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964).
See also Chambers v. Maroney, 399 U.S. 42, 47, 90 S.Ct. 1975, 1979, 26 L.Ed.2d 419 (1970).
8
Again, we are not confronted with any issue as to the propriety of a search of a car's interior. 'Neither 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.' Id., at 50, 90 S.Ct., at 1980.
9
Coolidge concerned a thorough and extensive search of the entire automobile including the interior from which, by vacuum sweepings, incriminating evidence was obtained. A search of that kind raises different and additional considerations not present in the examination of a tire on an operative wheel and in the taking of exterior paint samples from the vehicle in the present case for which there was no reasonable expectation of privacy.
10
Before the District Court, the State argued that Lewis had consented to the seizure of his car by requesting that the police impound it for safekeeping. The District Court stated:
'Viewing the evidence in the light most favorable to the State, petitioner (Lewis) did not clearly and unequivocally consent to the seizure and search of the automobile. The testimony . . . established, at most, that petitioner consented to their taking custody of the car for safekeeping. There is no evidence that petitioner consented, expressly or impliedly, to a seizure of the automobile for purposes of a search. . . .' 354 F.Supp., at 37 38.
Inasmuch as we hold the seizure to be justified under Chambers, we do not reach the issue of Lewis' consent.
11
To make a comparison with a paint scraping required that a section of the painted exterior that had not been recently repaired be sampled. This conceivably could necessitate several scrapings if the first sample was not conclusive after laboratory analysis. Similarly, to make a cast of the tire tread on the operative wheel would require laboratory equipment.
12
We do not address the question found to be determinative in Mr. Justice POWELL'S opinion concurring in the result. This question was not raised or briefed by the parties.
1
This dissent is directed toward the search-and-seizure analysis in Mr. Justice BLACKMUN's plurality opinion. Like the plurality, I do not consider the issue raised by Mr. Justice POWELL'S concurrence, it having been enither briefed nor argued by the parties.
2
Even the Solicitor General, who appeared as amicus curiae urging a reversal of the Court of Appeals' judgment in this case, has candidly admitted in his brief that 'no satisfactory reason appears for the failure of the law enforcement officers to have obtained a warrant—there appears on the facts of this case to have been no real likelihood that respondent would have destroyed or concealed the evidence sought during the time required to seek and procure a warrant.' Brief for United States as Amici Curiae 4—5.
3
It can hardly be argued that the questioning of the respondent by the police for the first time alerted him to their intentions, thus suddenly providing him a motivation to remove the car from 'official grasp.' Ante, at 590, 595. Even putting to one side the question of how the respondent could have acted to destroy any evidence while he was in police custody, the fact is that he was fully aware of official suspicion during several months preceding the interrogation. He had been questioned on several occasions prior to his arrest, and he had been alerted on the day before the interrogation that the police wished to see him. Nonetheless, he voluntarily drove his car to Columbus to keep his appointment with the investigators.
4
The plurality opinion correctly rejects, ante, at 591—592, n. 7, the petitioner's contention that the seizure here was incident to the arrest of the respondent. '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.' Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777.
| 01
|
417 U.S. 622
94 S.Ct. 2513
41 L.Ed.2d 358
Joseph P. MOODY et al.v.ALBEMARLE PAPER COMPANY et al. WILLIAMS v. ALBEMARLE CITY BOARD OF EDUCATION.
No. 73—899.
Decided June 17, 1974.
PER CURIAM.
1
Appeals from the judgments of the trial courts in two cases were heard and determined by two separate three-judge divisions of the Court of Appeals for the Fourth Circuit. Sitting by designation as members of each of the divisions were senior judges of the Fourth Circuit.1 Following decisions by both divisions, the unsuccessful parties petitioned for rehearings in banc pursuant to 28 U.S.C. § 46(c):2
2
mined by a court or division of not more than three judges, unless a hearing or rehearing before the court in banc is ordered by a majority of the circuit judges of the circuit who are in regular active service. A court in banc shall consist of all circuit judges in regular active service. A circuit judge of the circuit who has retired from regular active service shall also be competent to sit as a judge of the court in banc in the rehearing of a case or controversy if he sat in the court or division at the original hearing thereof.' (Emphasis added.)
3
It had been the practice of the Fourth Circuit to count the votes of that senior judges who were members of the original hearing division when the court acted on the question whether to order a rehearing in banc. In those cases, however, the votes of the senior judges were not crucial. Certificate 3. Here, their votes are crucial. In Moody, while a 'majority of the circuit judges of the circuit who are in regular active service' did not vote for a rehearing in banc, the two senior judges who sat on the division by designation did so vote; their votes, if counted, would make a majority for rehearing. In Williams, while a majority of Circuit Judges in regular active service did vote for a rehearing in banc, the senior judge who sat on the original division by designation voted against rehearing; with his vote counted the rehearing would fail by an equal division of those voting.
4
Accordingly, all Circuit Judges of the Fourth Circuit in regular active service and both senior judges of the Circuit have, pursuant to 28 U.S.C. § 1254(3), certified to us the question whether a senior judge of the Circuit who was a member of the original division hearing a case may vote to determine whether the case should be reheard in banc. Because of the importance of the question to the administration of judicial business in the circuits, as well as to the parties in the two cases pending in the Fourth Circuit, we granted leave to and invited those parties to file briefs in response to the question certified. Upon consideration of the question and the briefs filed by the litigants on both sides of both pending cases, we conclude that the answer should be in the negative; senior circuit judges who are members of the originally assigned division hearing a case are not authorized by Congress to participate in the determination whether to rehear that case in banc.
5
The power of courts of appeals to hear or rehear cases in banc was first determined in Textile Mills Corp. v. Commissioner, 314 U.S. 326, 62 S.Ct. 272, 86 L.Ed. 249 (1941). In 1948, Congress provided legislative ratification of Textile Mills by enacting § 46(c) of the Judicial Code, which then provided that hearings or rehearings before courts of appeals in banc were to be:
6
'ordered by a majority of the circuit judges of the circuit who are in active service. A court in banc shall consist of all active circuit judges of the circuit.' 28 U.S.C. § 46(c) (1952 ed.). (Emphasis added.)
7
In the Western Pacific Railroad Case, 345 U.S. 247, 73 S.Ct. 656, 97 L.Ed. 986 (1953), the Court had occasion to construe the 1948 statute, and determined that it was a grant of power to the courts of appeals to order hearings or rehearings in banc, not the creation of a right in litigants to compel such hearings or rehearings or even to compel the court to vote on the question of hearing or rehearing. The Court also addressed itself to the procedure governing the exercise of this power, holding that each court of appeals was 'left free to devise its own administrative machinery to provide the means whereby a majority may order such a hearing.'3 Id., at 250, 73 S.Ct., at 658. This discretion has been subsequently confirmed. Shenker v. Baltimore & Ohio R. Co., 374 U.S. 1, 5, 83 S.Ct. 1667, 1670, 10 L.Ed.2d 709 (1963); United States v. American-Foreign S.S. Corp., 363 U.S. 685, 688, 80 S.Ct. 1336, 1338, 4 L.Ed.2d 1491 (1960).
8
In one of these latter cases, American-Foreign, a question arose under the language of the 1948 statute whether, if rehearing in banc was voted, senior judges were eligible to participate in the decision of that case on the merits. The Court held that senior judges were not eligible to sit. Congress in 1963 then enacted the present version of § 46(c), which provides that a senior judge who sat on the original division hearing a case is 'competent to sit as a judge of the court in banc' in the merits rehearing of the case. (Emphasis added.) But the language of the statute concerning how the court orders a rehearing in banc was not changed, except to reinforce the limitation on the grant of power by adding 'regular' before 'active service,' sharpening the definition of which judges may participate in ordering a hearing or rehearing in banc.
9
The language of the present statute thus confines the power to order a rehearing in banc to those circuit judges who are in 'regular active service.' Although, as the Court has held, those judges are largely free to devise whatever procedures they choose to initiate the process of decision to order such a rehearing, and to decide who may participate in those preliminary procedures, see n. 3, supra, neither the Court nor Congress has suggested that any other than a regular active service judge is eligible to participate in the making of the decision whether to hear or rehear a case in banc. Obviously such a decision can be reached only by voting. As revealed by the decisional and statutory evolution of the institution of the in banc court, the eligibility of senior judges for participation therein has been the exception, not the rule. We are not at liberty to engraft upon the statute a meaning inconsistent with its historical limitations.
10
Indeed, the very purpose of the in banc court supports our conclusion that senior judges have not been authorized by implication to participate in ordering a hearing or rehearing in banc. As the Federal Rule indicates, supra, n. 2, the in banc court is normally reserved for questions of exceptional importance, or to secure or maintain uniformity of decision within the circuit. In the wise use of this exceptional power to "determine the major doctrinal trends of the future" for a particular Circuit, American-Foreign, 363 U.S., at 690, 80 S.Ct., at 1339, Congress appears to have contemplated the need for an intimate and current working knowledge of, among other things, the decisions of the circuit, its pending cases, and the magnitude and nature of its future workload. Senior judges provide a judicial resource of extraordinary value by their willingness to undertake important assignments 'without economic incentive of any kind.' Id., at 688 n. 4, 80 S.Ct. at 1338. Consistent therewith, Congress has provided that when a senior judge has participated in the original division hearing, such senior judge may later sit on an in banc court rehearing that case; this was the purpose of the 1963 amendment to the Judicial Code. But voting on the merits of an in banc case is quite different from voting whether to rehear a case in banc, which is essentially a policy decision of judicial administration. Congress vested this latter authority and responsibility exclusively in 'circuit judges of the circuit who are in regular active service,' 28 U.S.C. § 46(c); because of their different nature, we cannot assume the grant of authority to do one includes authority to do the other.
11
The question certified to us is therefore answered in the negative.4
12
Mr. Justice POWELL took no part in the consideration or decision of this case.
1
The Court of Appeals for the Fourth Circuit is composed of seven judges in regular active service, 28 U.S.C. § 44, and two judges who have retired from that service but remain available for duties as designated and assigned, known as senior judges, 28 U.S.C. § 294(b). In Moody v. Albemarle Paper Co., both of those senior judges were designated members of the three-judge division which originally decided that appeal, see 474 F.2d 134; in Williams v. Albemarle City Board of Education, one of the senior judges was so designated, see 485 F.2d 232; 28 U.S.C. § 294(c).
2
Federal Rule App.Proc. 35 provides in part:
'(a) When Hearing or Rehearing in Banc Will Be Ordered. A majority of the circuit judges who are in regular active service may order that an appeal or other proceeding be heard or reheard by the court of appeals in banc. Such a hearing or rehearing is not favored and ordinarily will not be ordered except (1) when consideration by the full court is necessary to secure or maintain uniformity of its decisions, or (2) when the proceeding involves a question of exceptional importance.
'(b) Suggestion of a Party for Hearing or Rehearing in Banc. A party may suggest the appropriateness of a hearing or rehearing in banc. The clerk shall transmit any such suggestion to the judges of the court who are in regular active service but a vote will not be taken to determine whether the cause shall be heard or reheard in banc unless a judge in regular active service or a judge who was a member of the panel that rendered a decision sought to be reheard requests a vote on such a suggestion made by a party.'
'Cases and controversies shall be heard and deter-
3
The machinery devised by the Ninth Circuit in that case was one which governed the initiation of the polling of the court to determine whether it should hear or rehear a case in banc. Although there was some uncertainty whether indeed the Ninth Circuit had provided such machinery, 345 U.S. 247, 263, 73 S.Ct. 656, 664, 97 L.Ed. 986, its nature was to delegate to the three-judge division first hearing the case the power to initiate a poll of the court. Id., at 259, 73 S.Ct., at 662. Two of the judges who were members of the division in that case were district judges. Id., at 263, 73 S.Ct., at 644. This machinery was similar in kind to that now set forth in Fed.Rule App.Proc. 35(b), supra, n. 2, by which a vote to hear or rehear a case in banc will not be taken unless such a vote is requested by a judge in regular active service, or a judge who was a member of the division that rendered a decision sought to be reheard.
4
The only other courts of appeals which have discussed the issue have ruled similarly. Zahn v. International Paper Co., 469 F.2d 1033, 1040-1042 (CA2 1972) (statements and dissent upon denial of rehearing in banc); Allen v. Johnson, 391 F.2d 527, 532 (CA5 1968) (in banc).
| 89
|
417 U.S. 600
94 S.Ct. 2437
41 L.Ed.2d 341
Fred R. ROSS and North Carolina, Petitioners,v.Claude Franklin MOFFITT.
No. 73—786.
Argued April 22, 1974.
Decided June 17, 1974.
Syllabus
Respondent, an indigent, while represented by court-appointed counsel, was convicted of forgery in state court in two separate cases, and his convictions were affirmed on his appeals of right by the North Carolina Court of Appeals. In one case he was denied appointment of counsel for discretionary review by the North Carolina Supreme Court, and in the other case, after that court had denied certiorari, was denied appointment of counsel to prepare a petition for certiorari to this Court. Subsequently, Federal District Court denied habeas corpus relief, but the United States Court of Appeals reversed, holding that respondent was entitled to appointment of counsel both on his petition for review by the State Supreme Court and on his petition for certiorari in this Court. Held:
1. The Due Process Clause of the Fourteenth Amendment does not require North Carolina to provide respondent with counsel on his discretionary appeal to the State Supreme Court. Pp. 609—611.
(a) As contrasted with the trial stage of a criminal proceeding, a defendant appealing a conviction needs an attorney, not as a shield to protect him against being 'haled into court' by the State and stripped of his presumption of innocence, but rather as a sword to upset the prior determination of guilt, the difference being significant since, while a State may not dispense with the trial stage without the defendant's consent, it need not provide any appeal at all. Pp. 610—611.
(b) The fact that an appeal has been provided does not automatically mean that the State then acts unfairly by refusing to provide counsel to indigent defendants at every stage of the way, but unfairness results only if the State singles out indigents and denies them meaningful access to the appellate system because of their poverty. P. 611.
2. Nor does the Equal Protection Clause of the Fourteenth Amendment require North Carolina to provide free counsel for indigent defendants seeking discretionary appeals to the State Supreme Court. Pp. 611—616.
(a) A defendant in respondent's circumstances is not denied meaningful access to the State Supreme Court simply because the State does not appoint counsel to aid him in seeking review in that court, since at that stage, under North Carolina's multi-tiered appellate system, he will have, at the very least, a transcript or other record of the trial proceedings, a brief in the Court of Appeals setting forth his claims of error, and frequently an opinion by that court disposing of his case, materials which, when supplemented by any pro se submission that might be made, would provide the Supreme Court with an adequate basis for its decision to grant or deny review under its standards of whether the case has 'significant public interest,' involves 'legal principles of major significance,' or likely conflicts with a previous Supreme Court decision. Pp. 614—615.
(b) Both an indigent defendant's opportunity to have counsel prepare an initial brief in the Court of Appeals and the nature of the Supreme Court's discretionary review make the relative handicap that such a defendant may have in comparison to a wealthy defendant, who has counsel at every stage of the proceeding, far less than the handicap borne by an indigent defendant denied counsel on his initial appeal of right, Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811. P. 616.
(c) That a particular service might benefit an indigent defendant does not mean that the service is constitutionally required, the duty of the State not being to duplicate the legal arsenal that may be privately retained by a criminal defendant in a continuing effort to reverse his conviction, but only to assure the indigent defendant, as was done here, an adequate opportunity to present his claims fairly in the context of the State's appellate process. Pp. 616.
3. Similarly, the Fourteenth Amendment does not require North Carolina to provide counsel for a convicted indigent defendant seeking to file a petition for certiorari in this Court, under circumstances where the State will have provided counsel for his only appeal as of right, and the brief prepared by such counsel together with one and perhaps two state appellate opinions will be available to this Court in order to decide whether to grant certiorari. Pp. 616—618.
(a) Since the right to seek discretionary review in this Court is conferred by federal statutes and not by any State, the argument that the State having once created a right of appeal must give all persons an equal opportunity to enjoy the right, is by its terms inapplicable. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, and Douglas v. California, supra, distinguished. P. 617.
(b) The suggestion that a State is responsible for providing counsel to an indigent defendant petitioning this Court simply because it initiated the prosecution leading to the judgment sought to be reviewed is unsupported by either reason or authority. Pp. 617—618.
4 Cir., 483 F.2d 650, reversed.
Jacob L. Safron, Raleigh, N.C., for petitioners.
Thomas B. Anderson, Jr., Durham, N.C., for respondent.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
We are asked in this case to decide whether Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), which requires appointment of counsel for indigent state defendants on their first appeal as of right, should be extended to require counsel for discretionary state appeals and for applications for review in this Court. The Court of Appeals for the Fourth Circuit held that such appointment was required by the Due Process and Equal Protection Clauses of the Fourteenth Amendment.1
2
* The case now before us has resulted from consolidation of two separate cases, North Carolina criminal prosecutions brought in the respective Superior Courts for the counties of Mecklenburg and Guilford. In both cases respondent pleaded not guilty to charges of forgery and uttering a forged instrument, and because of his indigency was represented at trial by court-appointed counsel. He was convicted and then took separate appeals to the North Carolina Court of Appeals, where he was again represented by court-appointed counsel, and his convictions were affirmed.2 At this point the procedural histories of the two cases diverge.
3
Following affirmance of his Mecklenburg County conviction, respondent sought to invoke the discretionary review procedures of the North Carolina Supreme Court. His court-appointed counsel approached the Mecklenburg County Superior Court about possible appointment to represent respondent on this appeal, but counsel was informed that the State was not required to furnish counsel for that petition. Respondent sought collateral relief in both the state and federal courts, first raising his right-to-counsel contention in a habeas corpus petition filed in the United States District Court for the Western District of North Carolina in February 1971. Relief was denied at that time, and respondent's appeal to the Court of Appeals for the Fourth Circuit was dismissed by stipulation in order to allow respondent to first exhaust state remedies on this issue. After exhausting state remedies, he reapplied for habeas relief, which was again denied. Respondent appealed that denial to the Court of Appeals for the Fourth Circuit.
4
Following affirmance of his conviction on the Guilford County charges, respondent also sought discretionary review in the North Carolina Supreme Court. On this appeal, however, respondent was not denied counsel but rather was represented by the public defender who had been appointed for the trial and respondent's first appeal. The North Carolina Supreme Court denied certiorari.3 Respondent then unsuccessfully petitioned the Superior Court for Guilford County for court-appointed counsel to prepare a petition for a writ of certiorari to this Court, and also sought post-conviction relief throughout the state courts. After these motions were denied, respondent again sought federal habeas relief, this time in the United States District Court for the Middle District of North Carolina, 341 F.Supp. 853. That court denied relief, and respondent took an appeal to the Court of Appeals for the Fourth Circuit.
5
The Court of Appeals reversed the two District Court judgments, holding that respondent was entitled to the assistance of counsel at state expense both on his petition for review in the North Carolina Supreme Court and on his petition for certiorari to this Court. Reviewing the procedures of the North Carolina appellate system and the possible benefits that counsel would provide for indigents seeking review in that system, the court stated:
6
'As long as the state provides such procedures and allows other convicted felons to seek access to the higher court with the help of retained counsel, there is a marked absence of fairness in denying an indigent the assistance of counsel as he seeks access to the same court.'4
7
This principle was held equally applicable to petitions for certiorari to this Court. For, said the Court of Appeals, '(t)he same concepts of fairness and equality, which require counsel in a first appeal of right, require counsel in other and subsequent discretionary appeals.'5
8
We granted certiorari, 414 U.S. 1128, 94 S.Ct. 864, 38 L.Ed.2d 752, to consider the Court of Appeals' decision in light of Douglas v. California, and apparently conflicting decisions of the Courts of Appeals for the Seventh and Tenth Circuits.6 For the reasons hereafter stated we reverse the Court of Appeals.
II
9
This Court, in the past 20 years, has given extensive consideration to the rights of indigent persons on appeal. In Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), the first of the pertinent cases, the Court had before it an Illinois rule allowing a convicted criminal defendant to present claims of trial error to the Supreme Court of Illinois only if he procured a transcript of the testimony adduced at his trial.7 No exception was made for the indigent defendant, and thus one who was unable to pay the cost of obtaining such a transcript was precluded from obtaining appellate review of asserted trial error. Mr. Justice Frankfurter, who cast the deciding vote, said in his concurring opinion:
10
'. . . Illinois has decreed that only defendants who can afford to pay for the stenographic minutes of a trial may have trial errors reviewed on appeal by the Illinois Supreme Court.' Id., at 22, 76 S.Ct., at 592.
11
The Court in Griffin held that this discrimination violated the Fourteenth Amendment.
12
Succeeding cases invalidated similar financial barriers to the appellate process, at the same time reaffirming the traditional principle that a State is not obliged to provide any appeal at all for criminal defendants. McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894). The cases encompassed a variety of circumstances but all had a common theme. For example, Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963), involved an Indiana provision declaring that only a public defender could obtain a free transcript of a hearing on a coram nobis application. If the public defender declined to request one, the indigent prisoner seeking to appeal had no recourse. In Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963), the State permitted an indigent to obtain a free transcript of the trial at which he was convicted only if he satisfied the trial judge that his contentions on appeal would not be frivolous. The appealing defendant was in effect bound by the trial court's conclusions in seeking to review the determination of frivolousness, since no transcript or its equivalent was made available to him. In Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961), Iowa had required a filing fee in order to process a state habeas corpus application by a convicted defendant, and in Burns v. Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209 (1959), the State of Ohio required a $20 filing fee in order to move the Supreme Court of Ohio for leave to appeal from a judgment of the Ohio Court of Appeals affirming a criminal conviction. Each of these state-imposed financial barriers to the adjudication of a criminal defendant's appeal was held to violate the Fourteenth Amendment.
13
The decisions discussed above stand for the proposition that a State cannot arbitrarily cut off appeal rights for indigents while leaving open avenues of appeal for more affluent persons. In Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), however, a case decided the same day as Lane, supra, and Draper, supra, the Court departed somewhat from the limited doctrine of the transcript and fee cases and undertook an examination of whether an indigent's access to the appellate system was adequate. The Court in Douglas concluded that a State does not fulfill its responsibility toward indigent defendants merely by waiving its own requirements that a convicted defendant procure a transcript or pay a fee in order to appeal, and held that the State must go further and provide counsel for the indigent on his first appeal as of right. It is this decision we are asked to extend today.
14
Petitioners in Douglas, each of whom had been convicted by a jury on 13 felony counts, took appeals as of right to the California District Court of Appeal. No filing fee was exacted of them, no transcript was required in order to present their arguments to the Court of Appeal, and the appellate process was therefore open to them. Petitioners, however, claimed that they not only had the right to make use of the appellate process, but were also entitled to court-appointed and state-compensated counsel because they were indigent. The California appellate court examined the trial record on its own initiative, following the then-existing rule in California, and concluded that "no good whatever could be served by appointment of counsel." 372 U.S., at 355, 83 S.Ct., at 815. It therefore denied petitioners' request for the appointment of counsel.
15
This Court held unconstitutional California's requirement that counsel on appeal would be appointed for an indigent only if the appellate court determined that such appointment would be helpful to the defendant or to the court itself. The Court noted that under this system an indigent's case was initially reviewed on the merits without the benefit of any organization or argument by counsel. By contrast, persons of greater means were not faced with the preliminary 'ex parte examination of the record,' id., at 356, 83 S.Ct., at 816, but had their arguments presented to the court in fully briefed form. The Court noted, however, that its decision extended only to initial appeals as of right, and went on to say:
16
'We need not now decide whether California would have to provide counsel for an indigent seeking a discretionary hearing from the California Supreme Court after the District Court of Appeal had sustained his conviction . . . or whether counsel must be appointed for an indigent seeking review of an appellate affirmance of his conviction in this Court by appeal as of right or by petition for a writ of certiorari which lies within the Court's discretion. But it is appropriate to observe that a State can, consistently with the Fourteenth Amendment, provide for differences so long as the result does not amount to a denial of due process or an 'invidious discrimination.' Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563; Griffin v. Illinois, supra, 351 U.S. p. 18, 76 S.Ct. 585, p. 590. Absolute equality is not required; lines can be and are drawn and we often sustain them.' Id., at 356—357, 83 S.Ct., at 816.
17
The precise rationale for the Griffin and Douglas lines of cases has never been explicitly stated, some support being derived from the Equal Protection Clause of the Fourteenth Amendment, and some from the Due Process Clause of that Amendment.8 Neither Clause by itself provides an entirely satisfactory basis for the result reached, each depending on a different inquiry which emphasizes different factors. 'Due process' emphasizes fairness between the State and the individual dealing with the State, regardless of how other individuals in the same situation may be treated. 'Equal protection,' on the other hand, emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable. We will address these issues separately in the succeeding sections.
III
18
Recognition of the due process rationale in Douglas is found both in the Court's opinion and in the dissenting opinion of Mr. Justice Harlan. The Court in Douglas stated that '(w)hen an indigent is forced to run this gantlet of a preliminary showing of merit, the right to appeal does not comport with fair procedure.' 372 U.S., at 357, 83 S.Ct., at 816. Mr. Justice Harlan thought that the due process issue in Douglas was the only one worthy of extended consideration, remarking: 'The real question in this case, I submit, and the only one that permits of satisfactory analysis, is whether or not the state rule, as applied in this case, is consistent with the requirements of fair procedure guaranteed by the Due Process Clause.' Id., at 363, 83 S.Ct., at 819.
19
We do not believe that the Due Process Clause requires North Carolina to provide respondent with counsel on his discretionary appeal to the State Supreme Court. At the trial stage of a criminal proceeding, the right of an indigent defendant to counsel is fundamental and binding upon the States by virtue of the Sixth and Fourteenth Amendments. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). But there are significant differences between the trial and appellate stages of a criminal proceeding. The purpose of the trial stage from the State's point of view is to convert a criminal defendant from a person presumed innocent to one found guilty beyond a reasonable doubt. To accomplish this purpose, the State employs a prosecuting attorney who presents evidence to the court, challenges any witnesses offered by the defendant, argues rulings of the court, and makes direct arguments to the court and jury seeking to persuade them of the defendant's guilt. Under these circumstances 'reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.' Id., at 344, 83 S.Ct., at 796.
20
By contrast, it is ordinarily the defendant, rather than the State, who initiates the appellate process, seeking not to fend off the efforts of the State's prosecutor but rather to overturn a finding of guilt made by a judge or a jury below. The defendant needs an attorney on appeal not as a shield to protect him against being 'haled into court' by the State and stripped of his presumption of innocence, but rather as a sword to upset the prior determination of guilt. This difference is significant for, while no one would agree that the State may simply dispense with the trial stage of proceedings without a criminal defendant's consent, it is clear that the State need not provide any appeal at all. McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894). The fact that an appeal has been provided does not automatically mean that a State then acts unfairly by refusing to provide counsel to indigent defendants at every stage of the way. Douglas v. California, supra. Unfairness results only if indigents are singled out by the State and denied meaningful access to the appellate system because of their poverty. That question is more profitably considered under an equal protection analysis.
IV
21
Language invoking equal protection notions is prominent both in Douglas and in other cases treating the rights of indigents on appeal. The Court in Douglas for example, stated:
22
'(W)here the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor.' 372 U.S., at 357, 83 S.Ct., at 816. (Emphasis in original.)
23
The Court in Burns v. Ohio, stated the issue in the following terms:
24
'(O)nce the State chooses to establish appellate review in criminal cases, it may not foreclose indigents from access to any phase of that procedure because of their poverty.' 360 U.S., at 257, 79 S.Ct., at 1168.
25
Despite the tendency of all rights 'to declare themselves absolute to their logical extreme,'9 there are obviously limits beyond which the equal protection analysis may not be pressed without doing violence to principles recognized in other decisions of this Court. The Fourteenth Amendment 'does not require absolute equality or precisely equal advantages,' San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 24, 93 S.Ct. 1278, 1291, 36 L.Ed.2d 16 (1973), nor does it require the State to 'equalize economic conditions.' Griffin v. Illinois, 351 U.S., at 23, 76 S.Ct., at 592 (Frankfurter, J., concurring). It does require that the state appellate system be 'free of unreasoned distinctions,' Rinaldi v. Yeager, 384 U.S. 305, 310, 86 S.Ct. 1497, 1500, 16 L.Ed.2d 577 (1966), and that indigents have an adequate opportunity to present their claims fairly within the adversary system. Griffin v. Illinois, supra; Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963). The State cannot adopt procedures which leave an indigent defendant 'entirely cut off from any appeal at all,' by virtue of his indigency, Lane v. Brown, 372 U.S., at 481, 83 S.Ct., at 771, or extend to such indigent defendants merely a 'meaningless ritual' while others in better economic circumstances have a 'meaningful appeal.' Douglas v. California, supra, 372 U.S. at 358, 83 S.Ct. at 817. The question is not one of absolutes, but one of degrees. In this case we do not believe that the Equal Protection Clause, when interpreted in the context of these cases, requires North Carolina to provide free counsel for indigent defendants seeking to take discretionary appeals to the North Carolina Supreme Court, or to file petitions for certiorari in this Court.
26
A. The North Carolina appellate system, as are the appellate systems of almost half the States,10 is multitiered, providing for both an intermediate Court of Appeals and a Supreme Court. The Court of Appeals was created effective January 1, 1967, and, like other intermediate state appellate courts, was intended to absorb a substantial share of the case-load previously burdening the Supreme Court. In criminal cases, an appeal as of right lies directly to the Supreme Court in all cases which involve a sentence of death or life imprisonment, while an appeal of right in all other criminal cases lies to the Court of Appeals. N.C.Gen.Stat. § 7A—27 (1969 and Supp.1973). A second appeal of right lies to the Supreme Court in any criminal case '(1) (w)hich directly involves a substantial question arising under the Constitution of the United States or of this State, or (2) (i)n which there is a dissent. . . .' N.C.Gen.Stat. § 7A—30 (1969). All other decisions of the Court of Appeals on direct review of criminal cases may be further reviewed in the Supreme Court on a discretionary basis.
27
The statute governing discretionary appeals to the Supreme Court is N.C.Gen.Stat. § 7A—31 (1969). This statute provides, in relevant part, that '(i)n any cause in which appeal has been taken to the Court of Appeals . . . the Supreme Court may in its discretion, on motion of any party to the cause or on its own motion, certify the cause for review by the Supreme Court, either before or after it has been determined by the Court of Appeals.' The statute further provides that '(i)f the cause is certified for transfer to the Supreme Court after its determination by the Court of Appeals, the Supreme Court reviews the decision of the Court of Appeals.' The choice of cases to be reviewed is not left entirely within the discretion of the Supreme Court but is regulated by statutory standards. Subsection (c) of this provision states:
28
'In causes subject to certification under subsection (a) of this section, certification may be made by the Supreme Court after determination of the cause by the Court of Appeals when in the opinion of the Supreme Court (1) The subject matter of the appeal has significant public interest, or (2) The cause involves legal principles of major significance to the jurisprudence of the State, or (3) The decision of the Court of Appeals appears likely to be in conflict with a decision of the Supreme Court.'
29
Appointment of counsel for indigents in North Carolina is governed by N.C.Gen.Stat. § 7A—450 et seq. (1969 and Supp.1973). These provisions, although perhaps on their face broad enough to cover appointments such as those respondent sought here,11 have generally been construed to limit the right to appointed counsel in criminal cases to direct appeals taken as of right. Thus North Carolina has followed the mandate of Douglas v. California, supra, and authorized appointment of counsel for a convicted defendant appealing to the intermediate Court of Appeals, but has not gone beyond Douglas to provide for appointment of counsel for a defendant who seeks either discretionary review in the Supreme Court of North Carolina or a writ of certiorari here.
30
B. The facts show that respondent, in connection with his Mecklenburg County conviction, received the benefit of counsel in examining the record of his trial and in preparing an appellate brief on his behalf for the state Court of Appeals. Thus, prior to his seeking discretionary review in the State Supreme Court, his claims had 'once been presented by a lawyer and passed upon by an appellate court.' Douglas v. California, 372 U.S., at 356, 83 S.Ct., at 816. We do not believe that it can be said, therefore, that a defendant in respondent's circumstances is denied meaningful access to the North Carolina Supreme Court simply because the State does not appoint counsel to aid him in seeking review in that court. At that stage he will have, at the very least, a transcript or other record of trial proceedings, a brief on his behalf in the Court of Appeals setting forth his claims of error, and in many cases an opinion by the Court of Appeals disposing of his case. These materials, supplemented by whatever submission respondent may make pro se, would appear to provide the Supreme Court of North Carolina with an adequate basis for its decision to grant or deny review.
31
We are fortified in this conclusion by our understanding of the function served by discretionary review in the North Carolina Supreme Court. The critical issue in that court, as we perceive it, is not whether there has been 'a correct adjudication of guilt' in every individual case, see Griffin v. Illinois, 351 U.S., at 18, 76 S.Ct., at 590 but rather whether 'the subject matter of the appeal has significant public interest,' whether 'the cause involves legal principles of major significance to the jurisprudence of the State,' or whether the decision below is in probable conflict with a decision of the Supreme Court. The Supreme Court may deny certiorari even though it believes that the decision of the Court of Appeals was incorrect, see Peaseley v. Virginia Iron, Coal & Coke Co., 282 N.C. 585, 194 S.E.2d 133 (1973), since a decision which appears incorrect may nevertheless fail to satisfy any of the criteria discussed above. Once a defendant's claims of error are organized and presented in a lawyerlike fashion to the Court of Appeals, the justices of the Supreme Court of North Carolina who make the decision to grant or deny discretionary review should be able to ascertain whether his case satisfies the standards established by the legislature for such review.
32
This is not to say, of course, that a skilled lawyer, particularly one trained in the somewhat arcane art of preparing petitions for discretionary review, would not prove helpful to any litigant able to employ him. An indigent defendant seeking review in the Supreme Court of North Carolina is therefore somewhat handicapped in comparison with a wealthy defendant who has counsel assisting him in every conceivable manner at every stage in the proceeding. But both the opportunity to have counsel prepare an initial brief in the Court of Appeals and the nature of discretionary review in the Supreme Court of North Carolina make this relative handicap far less than the handicap borne by the indigent defendant denied counsel on his initial appeal as of right in Douglas. And the fact that a particular service might be of benefit to an indigent defendant does not mean that the service is constitutionally required. The duty of the State under our cases is not to duplicate the legal arsenal that may be privately retained by a criminal defendant in a continuing effort to reverse his conviction, but only to assure the indigent defendant an adequate opportunity to present his claims fairly in the context of the State's appellate process. We think respondent was given that opportunity under the existing North Carolina system.
V
33
Much of the discussion in the preceding section is equally relevant to the question of whether a State must provide counsel for a defendant seeking review of his conviction in this Court. North Carolina will have provided counsel for a convicted defendant's only appeal as of right, and the brief prepared by that counsel together with one and perhaps two North Carolina appellate opinions will be available to this Court in order that it may decide whether or not to grant certiorari. This Court's review, much like that of the Supreme Court of North Carolina, is discretionary and depends on numerous factors other than the perceived correctness of the judgment we are asked to review.
34
There is also a significant difference between the source of the right to seek discretionary review in the Supreme Court of North Carolina and the source of the right to seek discretionary review in this Court. The former is conferred by the statutes of the State of North Carolina, but the latter is granted by statute enacted by Congress. Thus the argument relied upon in the Griffin and Douglas cases, that the State having once created a right of appeal must give all persons an equal opportunity to enjoy the right, is by its terms inapplicable. The right to seek certiorari in this Court is not granted by any State, and exists by virtue of federal statute with or without the consent of the State whose judgment is sought to be reviewed.
35
The suggestion that a State is responsible for providing counsel to one petitioning this Court simply because it initiated the prosecution which led to the judgment sought to be reviewed is unsupported by either reason or authority. It would be quite as logical under the rationale of Douglas and Griffin, and indeed perhaps more so, to require that the Federal Government or this Court furnish and compensate counsel for petitioners who seek certiorari here to review state judgments of conviction. Yet this Court has followed a consistent policy of denying applications for appointment of counsel by persons seeking to file jurisdictional statements or petitions for certiorari in this Court. See, e.g., Drumm v. California, 373 U.S. 947, 83 S.Ct. 1683 (1963); Mooney v. New York, 373 U.S. 947, 83 S.Ct. 1678 (1963); Oppenheimer v. California, 374 U.S. 819, 83 S.Ct. 1860 (1963). In the light of these authorities, it would be odd, indeed, to read the Fourteenth Amendment to impose such a requirement on the States, and we decline to do so.
VI
36
We do not mean by this opinion to in any way discourage those States which have, as a matter of legislative choice, made counsel available to convicted defendants at all stages of judicial review. Some States which might well choose to do so as a matter of legislative policy may conceivably find that other claims for public funds within or without the criminal justice system preclude the implementation of such a policy at the present time. North Carolina, for example, while it does not provide counsel to indigent defendants seeking discretionary review on appeal, does provide counsel for indigent prisoners in several situations where such appointments are not required by any constitutional decision of this Court.12 Our reading of the Fourteenth Amendment leaves these choices to the State, and respondent was denied no rights secured by the Federal Constitution when North Carolina refused to provide counsel to aid him in obtaining discretionary appellate review.
37
The judgment of the Court of Appeals' holding to the contrary is reversed.
38
Reversed.
39
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL concur, dissenting.
40
I would affirm the judgment below because I am in agreement with the opinion of Chief Judge Haynsworth for a unanimous panel in the Court of Appeals. 483 F.2d 650.
41
In Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, we considered the necessity for appointed counsel on the first appeal as of right, the only issue before us. We did not deal with the appointment of counsel for later levels of discretionary review, either to the higher state courts or to this Court, but we noted that 'there can be no equal justice where the kind of an appeal a man enjoys 'depends on the amount of money he has." Id., at 355, 83 S.Ct., at 816.
42
Chief Judge Haynsworth could find 'no logical basis for differentiation between appeals of right and permissive review procedures in the context of the Constitution and the right to counsel.' 483 F.2d, at 653. More familiar with the functioning of the North Carolina criminal justice system than are we, he concluded that 'in the context of constitutional questions arising in criminal prosecutions, permissive review in the state's highest court may be predictably the most meaningful review the conviction will receive.' Ibid. The North Carolina Court of Appeals, for example, will be constrained in diverging from an earlier opinion of the State Supreme Court, even if subsequent developments have rendered the earlier Supreme Court decision suspect. '(T)he state's highest court remains the ultimate arbiter of the rights of its citizens.' Ibid.
43
Chief Judge Haynsworth also correctly observed that the indigent defendant proceeding without counsel is at a substantial disadvantage relative to wealthy defendants represented by counsel when he is forced to fend for himself in seeking discretionary review from the State Supreme Court or from this Court. It may well not be enough to allege error in the courts below in layman's terms; a more sophisticated approach may be demanded:*
44
'An indigent defendant is as much in need of the assistance of a lawyer in preparing and filing a petition for certiorari as he is in the handling of an appeal as of right. In many appeals, an articulate defendant could file an effective brief by telling his story in simple language without legalisms, but the technical requirements for applications for writs of certiorari are hazards which one untrained in the law could hardly be expected to negotiate.
45
"Certiorari proceedings constitute a highly specialized aspect of appellate work. The factors which (a court) deems important in connection with deciding whether to grant certiorari are certainly not within the normal knowledge of an indigent appellant. Boskey, The Right to Counsel in Appellate Proceedings, 45 Minn.L.Rev. 783, 797 (1961) (footnote omitted)." 483 F.2d, at 653.
46
Furthermore, the lawyer who handled the first appeal in a case would be familiar with the facts and legal issues involved in the case. It would be a relatively easy matter for the attorney to apply his expertise in filing a petition for discretionary review to a higher court, or to advise his client that such a petition would have no chance of succeeding.
47
Douglas v. California was grounded on concepts of fairness and equality. The right to seek discretionary review is a substantial one, and one where a lawyer can be of significant assistance to an indigent defendant. It was correctly perceived below that the 'same concepts of fairness and equality, which require counsel in a first appeal of right, require counsel in other and subsequent discretionary appeals.' Id., at 655.
1
483 F.2d 650 (1973).
2
State v. Moffitt, 9 N.C.App. 694, 177 S.E.2d 324 (1970) (Mecklenburg); State v. Moffitt, 11 N.C.App. 337, 181 S.E.2d 184 (1971) (Guilford).
3
State v. Moffitt, 279 N.C. 396, 183 S.E.2d 247 (1971).
4
483 F.2d, at 654.
5
Id., at 655. The court then decided to remand the case to the District Court to 'appraise the substantiality of the federal claim.' The court noted that it had no opportunity to examine the papers filed in the State Supreme Court and said that '(i)n the circumstances of this case . . ., where the only remedy available to the District Court would be the prisoner's release on a writ of habeas corpus,' it was appropriate for the District Court to determine whether respondent's claim was 'patently frivolous.' Ibid.
6
See United States ex rel. Pennington v. Pate, 409 F.2d 757 (CA7 1969); Peters v. Cox, 341 F.2d 575 (CA10 1965).
7
See 351 U.S., at 13 n. 2, 76 S.Ct., at 588.
8
The Court of Appeals in this case, for example, examined both possible rationales, stating:
'If the holding (in Douglas) be grounded on the equal protection clause, inequality in the circumstances of these cases is as obvious as it was in the circumstances of Douglas. If the holding in Douglas were grounded on the due process clause, and Mr. Justice Harlan in dissent thought the discourse should have been in those terms, due process encompasses elements of equality. There simply cannot be due process of the law to a litigant deprived of all professional assistance when other litigants, similarly situated, are able to obtain professional assistance and to be benefited by it. The same concepts of fairness and equality, which require counsel in a first appeal of right, require counsel in other and subsequent discretionary appeals.' 483 F.2d, at 655.
9
Hudson County Water Co. v. McCarter, 209 U.S. 349, 355, 28 S.Ct. 529, 531, 52 L.Ed. 828 (1908).
10
See Brief for Respondent 9 n. 5.
11
For example, subsection (b)(6) of § 7A—451, effective at the time of respondent's appeals, provides for counsel on '(d)irect review of any judgment or decree, including review by the United States Supreme Court of final judgment or decrees rendered by the highest court of North Carolina in which decision may be had.' But this provision apparently has not been construed to allow counsel for permissive appellate procedures. See 483 F.2d, at 652.
12
Section 7A—451 of N.C.Gen.Stat. (Supp.1973) provides:
'(a) An indigent person is entitled to services of counsel in the following actions and proceedings:
'(1) Any case in which imprisonment, or a fine of five hundred dollars ($500.00), or more, is likely to be adjudged;
'(2) A hearing on a petition for a writ of habeas corpus under Chapter 17 of the General Statutes;
'(3) A post-conviction proceeding under Chapter 15 of the General Statutes;
'(4) A hearing for revocation of probation, if confinement is likely to be adjudged as a result of the hearing;
'(5) A hearing in which extradition to another state is sought;
'(6) A proceeding for judicial hospitalization under Chapter 122, Article 7 (Judicial Hospitalization) or Article 11 (Mentally Ill Criminals), of the General Statutes and a proceeding for involuntary commitment to a treatment facility under Article 5 of Chapter 122 of the General Statutes;
'(7) A civil arrest and bail proceeding under Chapter 1, Article 34, of the General Statutes; and
'(8) In the case of a juvenile, a hearing as a result of which commitment to an institution or transfer to the superior court for trial on a felony charge is possible.'
*
An indigent defendant proceeding without the assistance of counsel would be attempting to satisfy one of three statutory standards for review when seeking certiorari from the North Carolina Supreme Court:
'(1) The subject matter of the appeal has significant public interest, or
'(2) The cause involves legal principles of major significance to the jurisprudence of the State, or
'(3) The decision of the Court of Appeals appears likely to be in conflict with a decision of the Supreme Court.' N.C.Gen.Stat. § 7A—31(c) (1969).
It seems likely that only the third would have been explored in a brief on the merits before the Court of Appeals, and the indigent defendant would draw little assistance from that brief in attempting to satisfy either of the first two standards.
Rule 19 of this Court provides some guidelines for the exercise of our certiorari jurisdiction, including decisions by a state court on federal questions not previously decided by this Court; but it may not be enough simply to assert that there was error in the decision of the court below. Cf. Magnum Import Co. v. Coty, 262 U.S. 159, 163, 43 S.Ct. 531, 532, 67 L.Ed. 922. Moreover, this Court is greatly aided by briefs prepared with accuracy, brevity, and clarity in its determination of whether certiorari should be granted. See Furness, Withy & Co. v. Yang-Tsze Insurance Assn., 242 U.S. 430, 434, 37 S.Ct. 141, 142, 61 L.Ed. 409.
| 12
|
417 U.S. 653
94 S.Ct. 2532
41 L.Ed.2d 383
WARDEN, LEWISBURG PENITENTIARY, Petitioner,v.Benigno MARRERO.
No. 73—831.
Argued April 29, 1974.
Decided June 19, 1974.
Rehearing Denied Nov. 11, 1974.
See 419 U.S. 1014, 95 S.Ct. 334.
Syllabus
The Comprehensive Drug Abuse Prevention and Control Act of 1970, which became effective May 1, 1971, makes parole under the general parole statute, 18 U.S.C. § 4202, available for almost all narcotics offenders. Respondent, who had been sentenced before May 1, 1971, and was ineligible for parole under 26 U.S.C. § 7237(d), which was repealed by the 1970 Act, sought habeas corpus in the District Court, claiming parole eligibility when one-third of his sentence had been served. The District Court denied relief on the ground that the prohibition on parole eligibility under 26 U.S.C. § 7237(d) had been preserved by § 1103(a) of the 1970 statute (which provides that '(p)rosecutions' for violations before May 1, 1971, shall not be affected by repeals of statutory provisions) and by the general saving clause, 1 U.S.C. § 109 (which provides that '(t)he repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute . . .'). The Court of Appeals reversed. Held:
1. Section 1103(a) of the 1970 statute bars the Board of Parole from considering respondent for parole under 18 U.S.C. § 4202, since parole eligibility, as a practical matter, is determined at the time of sentencing, and sentencing is a part of the concept of 'prosecution,' saved by § 1103(a), Bradley v. United States, 410 U.S. 605, 93 S.Ct. 1151, 35 L.Ed.2d 528. Pp. 657—659.
2. The Board of Parole is also barred by the general saving clause from considering respondent for parole, since it is clear that Congress intended ineligibility for parole in § 7237(d) to be treated as part of the offender's 'punishment,' and therefore the prohibition against the offender's eligibility for parole under 18 U.S.C. § 4202 is a 'penalty, forfeiture, or liability' under the saving clause. Pp. 659—664.
483 F.2d 656, reversed.
Jewell S. Lafontant, Washington, D.C., for petitioner.
John J. Witmeyer, III, New York City, for respondent, pro hac vice, by special leave of Court.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
A now-repealed statute 26 U.S.C. § 7237(d),1 provided, inter alia, that certain narcotics offenders sentenced to mandatory minimum prison terms should be ineligible for parole under the general parole statute, 18 U.S.C. § 4202.2 Section 7237(d) was repealed, effective May 1, 1971, 84 Stat. 1292, by the Comprehensive Drug Abuse Prevention and Control Act of 1970, which makes parole under § 4202 available for almost all narcotics offenders. The question for decision in this case is whether the parole ineligibility provision of 26 U.S.C. § 7237(d) survives the repealer, so that a narcotics offender who has served more than one-third of a sentence imposed before May 1, 1971, remains ineligible for parole consideration under 18 U.S.C. § 4202.
2
Respondent was convicted of narcotics offenses and, as a second offender, was sentenced before May 1, 1971, to concurrent terms of 10 years' imprisonment on each of two counts. 450 F.2d 373, 374—375 (CA2 1971).3 On February 24, 1972, respondent sought habeas corpus in the United States District Court for the Middle District of Pennsylvania, claiming that, since 26 U.S.C. § 7237(d) had been repealed, he should be eligible for consideration for parole under 18 U.S.C. § 4202 when one-third of his sentence had been served. The District Court denied relief on the ground that the prohibition on parole eligibility of 26 U.S.C. § 7237(d) had been preserved by § 1103(a) of the 1970 statute4 and by 1 U.S.C. § 109.5 347 F.Supp. 99. The Court of Appeals for the Third Circuit reversed, holding that neither § 1103(a) of the 1970 statute nor 1 U.S.C. § 109 continued the prohibition on eligibility for parole consideration in 26 U.S.C. § 7237(d). 483 F.2d 656 (1973).6 We granted certiorari to resolve a conflict among the Courts of Appeals.7 414 U.S. 1128, 94 S.Ct. 865, 38 L.Ed.2d 752 (1973). We agree with the District Court and reverse the judgment of the Court of Appeals.
3
Bradley v. United States, 410 U.S. 605, 611, 93 S.Ct. 1151, 1156, 35 L.Ed.2d 528 (1973), expressly reserved decision of the question now before us. Bradley involved the conviction and sentencing after May 1, 1971, of offenders who committed narcotics offenses before that date. We held that sentencing is a part of the concept of 'prosecution' and therefore that the provision of § 1103(a) of the 1970 Act that '(p)rosecutions for any violation of law occurring (before May 1, 1971) shall not be affected' by the repeal of 26 U.S.C. § 7237(d), barred the sentencing judge from suspending the sentences of, or granting probation to, the Bradley petitioners and also barred him from making them eligible for early parole, before they had served one-third of their sentences, under 18 U.S.C. § 4208(a).8 Although stating in a footnote that '(t)he decision to grant parole under (18 U.S.C.) § 4202 lies with the Board of Parole, not with the District Judge, and must be made long after sentence has been entered and the prosecution terminated,' we concluded that '(w)hether § 1103(a) or the general saving statute, 1 U.S.C. § 109, limits that decision is a question we cannot consider in this case.' 410 U.S., at 611 n. 6, 93 S.Ct., at 1156.
4
* We hold that § 1103(a) bars the Board of Parole from considering respondent for parole under 18 U.S.C. s 4202. In concluding in Bradley that ineligibility for early parole under 18 U.S.C. § 4208(a) was part of the 'prosecution,' we reasoned that, since a District Judge's decision to make an offender eligible for early parole is made at the time of entering a judgment of conviction, the decision was part of the sentence and therefore also part of the 'prosecution.' 410 U.S., at 611, 93 S.Ct., at 1155.
5
Similarly, a pragmatic view of sentencing requires the conclusion that parole eligibility under 18 U.S.C. § 4202 is also determined at the time of sentence. Since, under § 4202, an offender becomes eligible for parole after serving one-third of his sentence, see n. 2, supra, parole eligibility is a function of the length of the sentence fixed by the district judge. Although, of course, the precise time at which the offender becomes eligible for parole is not part of the sentence, as it is in the case of § 4208(a), it is implicit in the terms of the sentence. And because it could not be seriously argued that sentencing decisions are made without regard to the period of time a defendant must spend in prison before becoming eligible for parole, or that such decisions would not be drastically affected by a substantial change in the proportion of the sentence required to be served before becoming eligible, parole eligibility can be properly viewed as being determined—and deliberately so—by the sentence of the district judge. Eligibility for parole under § 4202 is thus determined at the time of sentencing and, under the teaching of Bradley, is part of the 'prosecution' saved by § 1103(a).
6
We therefore reject respondent's argument that our Bradley footnote should be read as holding that, because the decision to grant parole under § 4202 is for the Board of Parole, not the trial judge, and is arrived at after the sentence has been entered and the prosecution has come to an end, the parole eligibility decision is not part of the 'prosecution' for purposes of § 1103(a). Apart from the obvious answer that the Court could not reasonably be thought to have decided in a footnote a question 'on which' we said in the text, 'we express no opinion,' 410 U.S., at 611, 93 S.Ct., at 1156, respondent's reliance upon the footnote both proves too little and too much. It proves too little, because the fact that the Board of Parole, not the sentencing judge, finally determines whether and when an offender should be released on parole does not undercut our conclusion that the district judge, at the time of sentencing, determines when the offender will become eligible for consideration for parole and the Board's action simply implements that determination.9 It proves too much, because, if—as the respondent would have it—the proper focus is upon the time at which release on parole is actually granted or denied, the parole decision, whether made under 18 U.S.C. § 4208(a) or 18 U.S.C. § 4202, is made long after the 'prosecution' terminates; for under both provisions, the Board of Parole ultimately decides whether and when the offender is to be released. But, as previously mentioned, we held in Bradley that the district judge's decision to deny early parole under § 4208(a) was part of the sentence, and therefore part of the 'prosecution.'
II
7
We hold further that the general saving clause, 1 U.S.C. § 109, also bars the Board of Parole from considering respondent for parole.10
8
Congress enacted its first general saving provision, c. 71, 16 Stat. 432 (1871), to abolish the common-law presumption that the repeal of a criminal statute resulted in the abatement of 'all prosecutions which had not reached final disposition in the highest court authorized to review them.' Bradley v. United States, 410 U.S., at 607, 93 S.Ct., at 1154; see Bell v. Maryland, 378 U.S. 226, 230, 84 S.Ct. 1814, 1817, 12 L.Ed.2d 822 (1964). Common-law abatements resulted not only from unequivocal statutory repeals, but also from repeals and re-enactments with different penalties, whether the re-enacted legislation increased or decreased the penalties. See Bradley v. United States, supra, 410 U.S., at 607—608, 93 S.Ct., at 1153—1154; Lindzey v. State, 65 Miss. 542, 5 So. 99, (1888); Hartung v. People, 22 N.Y. 95 (1860); Comment, Today's Law and Yesterday's Crime: Retroactive Application of Ameliorative Criminal Legislation, 121 U.Pa.L.Rev. 120, 121—126 (1972). To avoid such abatements—often the product of legislative inadvertence—Congress enacted 1 U.S.C. § 109, the general saving clause, which provides in pertinent part that '(t)he repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute.' See n. 5, supra. The determinative question is thus whether the prohibition of 26 U.S.C. § 7237(d) against the offender's eligibility for parole under 18 U.S.C. § 4202 is a 'penalty, forfeiture, or liability' saved from release or extinguishment by 1 U.S.C. § 109.11
9
United States v. Reisinger, 128 U.S. 398, 9 S.Ct. 99, 32 L.Ed. 480 (1888), held that the saving clause's use of the words 'penalty,' 'liability,' and 'forfeiture' required the conclusion that the clause covered criminal statutes. Those words, the Court found, were 'used by the great masters of crown law and the elementary writers as synonymous with the word 'punishment,' in connection with crimes of the highest grade.' Id., at 402, 9 S.Ct., at 101. Thus, the Court agreed with the construction of the clause by Mr. Justice Miller, as Circuit Justice, in United States v. Ulrici, 28 Fed.Cas. pp. 328, 329 (No. 16,594) (CCED Mo.1875), that those terms 'were used by Congress to include all forms of punishment for crime.' See 128 U.S., at 402—403, 9 S.Ct., at 100 101. In consequence, the saving clause has been held to bar application of ameliorative criminal sentencing laws repealing harsher ones in force at the time of the commission of an offense. See, e.g., Jones v. United States, 117 U.S.App.D.C. 169, 327 F.2d 867 (1963); United States v. Kirby, 176 F.2d 101 (CA2 1949); Lovely v. United States, 175 F.2d 312 (CA4 1949).
10
Although the general saving clause does not ordinarily preserve discarded remedies or procedures, see Hertz v. Woodman, 218 U.S. 205, 218, 30 S.Ct. 621, 624, 54 L.Ed. 1001 (1910); United States v. Obermeier, 186 F.2d 243, 253 (CA2 1950), the legislative history of § 7237(d) reveals that Congress meant ineligibility for parole to be treated as part of the 'punishment' for the narcotics offenses for which respondent was convicted. Section 7237(d) was enacted as part of the Narcotic Control Act of 1956. The statute embodied congressional acceptance of the approach that effective combat against the contagion of drug addiction required the imposition of severe penalties for certain narcotics offenses. Congres therefore enacted lengthy mandatory minimum sentences as a means of decreasing both drug addiction and trafficking. See, e.g., S.Rep.No.1997, 84th Cong., 2d Sess., 5 (1956); H.R.Rep.No.2388, 84th Cong., 2d Sess., 10 (1956). But Congress believed that longer sentences would not achieve the desired results unless the offender remained imprisoned for his full term.
11
'In evaluating the effectiveness of the presently prescribed penalties, it must be recognized that special incentives in our penal system serve to decrease the actual time spent in a penal institution under a sentence imposed by a court. The violator is eligible for parole after serving one-third of his sentence. . . . Available data from the Bureau of Prisons, indicates that a narcotics violator actually serves an average of less than two-thirds of the sentence imposed by the court. This mitigation of sentence tends to defeat the purposes of (existing legislation) . ...' Id., at 10—11, 1956 U.S.Code Cong. & Admin. News, p. 3284.
12
Accordingly, Congress expressly provided in § 7237(d) that parole under 18 U.S.C. § 4202 would be unavailable for narcotics offenders.
13
There are additional reasons for believing that the no-parole provision is an element of respondent's 'punishment.' First, only an unusual prisoner could be expected to think that he was not suffering a penalty when he was denied eligibility for parole. See United States v. Ross, 464 F.2d 376, 379 (CA2 1972); United States v. De Simone, 468 F.2d 1196, 1199 (CA2 1972). For the confined prisoner, parole—even with its legal constraints—is a long step toward regaining lost freedom.12 An observation made in somewhat different context is apt:
14
'It may be 'legislative grace' for Congress to provide for parole but when it expressly removes all hope of parole upon conviction and sentence for certain offences, . . . this is in the nature of an additional penalty.' Durant v. United States, 410 F.2d 689, 691 (CA5 1969).
15
Second, a repealer of parole eligibility previously available to imprisoned offenders would clearly present the serious question under the ex post facto clause of Art. I, § 9, cl. 3, of the Constitution, of whether it imposed a 'greater or more severe punishment than was prescribed by law at the time of the . . . offense,' Rooney v. North Dakota, 196 U.S. 319, 325, 25 S.Ct. 264, 265, 49 L.Ed. 494 (1905) (emphasis added). See Love v. Fitzharris, 460 F.2d 382 (CA9 1972); cf. Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937); Holden v. Minnesota, 137 U.S. 483, 491—492, 11 S.Ct. 143, 146, 34 L.Ed. 734 (1890); Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648 (1798); United States ex rel. Umbenhowar v. McDonnell, 11 F.Supp. 1014 (ND Ill.1934).
16
Thus, at least where, as in the case of respondent's narcotics offenses, Congress has barred parole eligibility as a punitive measure, we hold that the noparole provision of § 7237(d) is a 'penalty, forfeiture, or liability' saved by § 109.
III
17
Respondent emphasizes that Congress completely changed its approach to regulation of narcotics offenses in the 1970 Act, jettisoning the retributive approach of the 1956 law in favor of emphasis in the 1970 Act upon rehabilitation of the narcotics offender. He argues that, in light of this basic change, little purpose is served by denying respondent eligibility for parole, indeed that such denial frustrates the current congressional goal of rehabilitating narcotics offenders.
18
Undeniably this argument has force, but it is addressed to the wrong governmental branch. Punishment for federal crimes is a matter for Congress, subject to judicial veto only when the legislative judgment oversteps constitutional bounds. See Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 1284, 2 L.Ed.2d 1405 (1958); Bell v. United States, 349 U.S. 81, 82, 75 S.Ct. 620, 621, 99 L.Ed. 905 (1955). Section 1103(a) of the 1970 Act and 1 U.S.C. § 109 saved from repeal the bar of parole eligibility under § 7237(d), and, however severe the consequences for respondent, Congress trespassed no constitutional limits.
19
The judgment of the Court of Appeals is reversed.
20
Reversed.
21
Mr. Justice BLACKMUN with whom Mr. Justice DOUGLAS and Mr. Justice MARSHALL join, dissenting.
22
The Court holds that the no-parole provision of the repealed statute, 26 U.S.C. § 7237(d) (1964 ed., and Supp. V), is saved by both the general saving clause, 1 U.S.C. § 109, and the specific saving clause, § 1103(a), of the 1970 Act. I believe that neither provision can be read to cover postsentencing parole eligibility and I therefore respectfully dissent.
23
* Section 109. Parole eligibility, in my view, is not a 'penalty' envisioned by, and within the meaning of, the general saving statute, 1 U.S.C. § 109. The purpose and thrust of § 109, the pertinent portion of which was enacted originally in 1871, c. 71, 16 Stat. 432, is to preclude the technical abatement of a prosecution for an offense that was committed before the criminal statute was repealed. Hamm v. Rock Hill, 379 U.S. 306, 314, 85 S.Ct. 384, 390, 13 L.Ed.2d 300 (1964). Quite appropriately, this recognizes that, apart from exceptional circumstances,1 one who violates the criminal law should not escape sanction if, subsequent to the commission of his criminal act, the law happens to be repealed.
24
This saving statute, however, is not in line with the traditional common-law rule favoring application of existing law. United States v. Chambers, 291 U.S. 217, 54 S.Ct. 434, 78 L.Ed. 763 (1934); United States v. Tynen, 11 Wall. 88, 20 L.Ed. 153 (1871). See United States v. Schooner Peggy, 1 Cranch 103, 2 L.Ed. 49 (1801); Bradley v. School Board of City of Richmond, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974). The statute has never been applied by this Court other than to prevent technical abatement of a prosecution.2 Those federal courts that have interpreted the statute's reference to 'penalty' to include the terms of the sentence have dealt only with the length of the sentence actually imposed. United States v. Kirby, 176 F.2d 101 (CA2 1949); Lovely v. United States, 175 F.2d 312 (CA4), cert. denied, 338 U.S. 834, 70 S.Ct. 38, 94 L.Ed. 508 (1949); Duffel v. United States, 95 U.S.App.D.C. 242, 221 F.2d 523 (1954); Maceo v. United States, 46 F.2d 788 (CA5 1931).3
25
In this case, however, we are faced with a decidedly different situation. Respondent Marrero in no way is seeking to avoid punishment for his criminal act, and he is still fully subject to the service of his sentence. What Marrero seeks is merely the opportunity to be considered for parole. Eligibility for parole will not free him from his imposed sentence. The decision whether he should be accorded parole lies within the discretion of the Board of Parole. If for any reason the Board feels that parole would not be appropriate for the respondent, it can be denied, and Marrero will remain incarcerated for the term to which he is subject. Moreover, even if parole is deemed appropriate and is granted, respondent still would be subject to the conditions the parole authorities choose to place on his conditional freedom.
26
As the Fourth Circuit aptly has observed, parole 'is not a release of the prisoner from all disciplinary restraint, but is rather merely 'an extension of the prison walls'; and the prisoner while on parole remains 'in the legal custody and under the control of' the Parole Board,' United States ex rel. Rowe v. Nicholson, 4 Cir., 78 F.2d 468, 469—470, cert. denied, 296 U.S. 573, 56 S.Ct. 118, 80 L.Ed. 405 (1935); Alvarado v. McLaughlin, 486 F.2d 541, 544 (4 Cir. 1973). See also United States v. Marshall, 158 U.S.App.D.C. 283, 286, 485 F.2d 1062, 1065 (1973). The 'sentence' to be served by respondent is still 10 years, whether or not he is granted parole. Cf. Anderson v. Corall, 263 U.S. 193, 44 S.Ct. 43, 68 L.Ed. 247 (1923). In short, it is by no means clear to me that respondent Marrero is seeking to be relieved of the obligations of the 'sentence' imposed upon him.
27
By expanding the term 'penalty' to include parole ineligibility, rather than restricting it to the sentence imposed, the Court, in my view, misconceives the nature of parole ineligibility and extends § 109 well beyond its prior limits. To say that Congress intended parole ineligibility to be a 'penalty' under the repealed statute is merely to state the conclusion. The appropriate question is whether Congress intended parole ineligibility to be the type of 'penalty' preserved by the general saving statute. Until today, § 109 has not been read so broadly, and I believe this extension goes beyond the intended narrow anti-abatement reach of § 109. To repeat: § 109 'was meant to obviate mere technical abatement.' Hamm v. Rock Hill, 379 U.S., at 314, 85 S.Ct., at 390.
28
This unprecedented extension of § 109 might be justified, and perhaps made acceptable, if it were possible in any way to conclude that the Court's reading serves to effectuate congressional intent or to promote some valid policy. But the result reached clearly does a disservice in both respects.
29
As is demonstrated in Part II, infra, Congress did not affirmatively intend to save the no-parole provision. And on pure policy grounds, the result reached by the Court is wholly illogical. Presumably, the purposes behind parole ineligibility are to effect a deterrence to the commission of narcotics offenses, and to keep serious drug offenders behind bars for longer periods. By repealing the parole ineligibility provision, Congress rejected any deterrence rationale that had existed. A person who, on or subsequent to May 1, 1971, might anticipate the commission of a drug offense and who is cognizant of the law, knows that he is eligible for parole under 18 U.S.C. § 4202 after service of one-third of his more-than-180-day sentence. The anomalous effect of the Court's action is that it keeps an inmate who is convicted of an offense committed on April 30, 1971, incarcerated for the full length of his term, while his fellow inmate who committed the identical crime on May 2 and who behaved identically in prison, is eligible for release after one-third the time. Surely, disparate treatment of this kind serves only to frustrate the inmate's sense of justice and to undermine whatever rehabilitative attempts currently are being made.4
II
30
Section 1103(a). In passing the Comprehensive Drug Abuse Prevention and Control Act of 1970, 84 Stat. 1236, with its specific repealer provisions in §§ 1101(b)(3)(A) and (b)(4)(A), Congress unequivocally withdrew and rejected the concept of parole ineligibility. It concluded that the criminal process is ill served by a law that removes the incentives and the rehabilitative potential of a parole system. The only reference in the 1970 Act to pre-Act offenders is in the saving provision of § 1103(a), 84 Stat. 1294, and it precludes abatement only of 'prosecutions.' Although we pretermitted this precise question in Bradley v. United States, 410 U.S. 605, 611 n. 6, 93 S.Ct. 1151, 1156, 35 L.Ed.2d 528 (1973), the Court clearly distinguished postsentence parole eligibility from the specific terms of the sentence already handed down. I believe this distinction is crucial and that it requires a different result in the instant situation.
31
In determining whether § 1103(a) bars parole eligibility for pre-Act offenders, the Court should ascertain what Congress intended. While there is no precise legislative history on this question, I think the wording of § 1103(a) and the overall purposes of the 1970 Act preclude the result reached by the Court. Section 1103(a) applies only to 'prosecutions.' We reached the outer limit of this term in Bradley. Certainly the legislative and judicial history of the even broader language of the general saving provision, § 109, hardly supports the extravagant interpretation of § 1103(a) reached today. In light of the clear history and law under § 109, had Congress wanted to save more than the prosecution itself, it could well have done so in specific terms. Instead, it chose the narrowest possible saving clause. Particularly in light of the fact that the text of the 1970 Act specifically rejects the concept of paroleless sentencing, it is illogical and unwarranted to assume that Congress intended the term 'prosecutions' to be read so broadly.
32
For me there is no ambiguity in § 1103(a). I would take the limited saving clause at its word. Assuming, arguendo, that there is some doubt as to the congressional intent, it is harsh, to say the least, to resolve the doubt in the manner chosen by the Court. In light of the general rule favoring application of existing law, United States v. Chambers, 291 U.S. 217, 54 S.Ct. 434, 78 L.Ed. 763 (1934), and the general rule favoring construction of ambiguous statutes in favor of criminal defendants, United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), I see no other choice than to resolve any doubts in favor of eligibility.
33
The Court would justify its broad reading of the word 'prosecution' by stating that 'a pragmatic view of sentencing requires (this) conclusion.' Ante, at 658. Needless to say, no authority, legal or otherwise, is cited for this proposition other than the majority's own intuition, and I venture to say that none could be cited. Parole eligibility is determined by a parole board at its discretion, and the existence of parole eligibility is either guaranteed by statute or, as in the case of the repealed Act, is denied by statute. One thing is clear: the sentencing judge has no explicit control over the determination. Congress has never instructed district courts to assess sentences according to parole eligibility dates and if in fact some judges do this, it hardly justifies this Court's flat conclusion that parole eligibility is 'implicit in the terms of the sentence' and is 'thus determined at the time of sentencing.' Ibid.
34
Whatever else Bradley held, it clearly stated that the parole eligibility determination under 18 U.S.C. § 4202 (as opposed to preclusion of early parole in the terms of the sentence, as in Bradley) does not lie with the district judge, and the determination is 'made long after sentence has been entered and the prosecution terminated.' 410 U.S., at 611 n. 6, 93 S.Ct., at 1156 (emphasis added).5 Even assuming footnote 6 in Bradley did not conclusively decide the instant issue, the Court's opinion renders the words of the footnote a nullity. The majority states that we 'could not reasonably be thought to have decided in a footnote a question 'on which' we said in the text, 'we express no opinion," ante, at 659. It then goes on to decide that very issue, relying almost entirely on Bradley and concluding that 'under the teaching of Bradley' ineligibility for parole 'is part of the 'prosecution." Ante, at 658. At the least, Bradley precludes the approach taken by the majority. To my mind, it precludes the result reached.
III
35
Respondent Marrero does not seek release. He seeks only to be treated in the manner Congress now has recognized as appropriate for all criminal offenders, including those convicted of narcotics violations. If a professional Board of Parole determines that parole is in the best interests of an inmate and of society, Congress has determined that the inmate should be paroled. The Court, in my view, makes a serious mistake in expanding § 109 so drastically, and in interpreting § 1103(a) contrary to its intent and language, in order to preclude this result. With only one exception,6 the federal courts of appeals that have considered this issue currently reject the Government's argument.7 Inasmuch as I believe the Government's position here is incorrect, in terms both of the laws and of policy, I would affirm the judgment of the Court of Appeals.
1
Title 26 U.S.C. § 7237(d) (1964 ed. and Supp. V) provided:
'Upon conviction—
'(1) of any offense the penalty for which is provided in subsection (b) of this section, subsection (c), (h), or (i) of section 2 of the Narcotic Drugs Import and Export Act, as amended, or such Act of July 11, 1941, as amended, or
'(2) of any offense the penalty for which is provided in subsection (a) of this section, if it is the offender's second or subsequent offense,
'the imposition or execution of sentence shall not be suspended, probation shall not be granted, section 4202 of title 18 of the United States Code shall not apply, and the Act of July 15, 1932 (47 Stat. 696; D.C.Code 24—201 and following), as amended, shall not apply.'
2
Title 18 U.S.C. § 4202 provides:
'A Federal prisoner, other than a juvenile delinquent or a committed youth offender, wherever confined and serving a definite term or terms of over one hundred and eighty days, whose record shows that he has observed the rules of the institution in which he is confined, may be released on parole after serving one-third of such term or terms or after serving fifteen years of a life sentence or of a sentence of over forty-five years.'
3
Respondent was convicted of violating 21 U.S.C. § 173 (1964 ed.) and 26 U.S.C. §§ 4701, 4703, 4704(a), and 4771(a) (1964 ed.). His sentences were imposed under 21 U.S.C. § 174 and 26 U.S.C. § 7237(a). Section 174 explicitly incorporated the provisions of 26 U.S.C. § 7237(d), which was directly applicable to the sentence imposed under § 7237(a).
4
Section 1103(a) provides:
'Prosecutions for any violation of law occurring prior to the effective date of (the Act) shall not be affected by the repeals or amendments made by (it) . . . or abated by reason thereof.'
5
Title 1 U.S.C. § 109 provides in relevant part:
'The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.'
6
The mandate was issued before the Circuit Justice signed a stay. The stay was treated, however, as staying all proceedings under the mandate. Respondent's motion to dismiss the writ of certiorari as moot is therefore denied.
7
The Courts of Appeals for the Second and Tenth Circuits have held that narcotics offenders are ineligible for parole. United States v. De Simone, 468 F.2d 1196 (CA2 1972) (but see United States v. Huguet, 481 F.2d 888 (CA2 1973)); Perea v. United States Board of Parole, 480 F.2d 608 (CA10 1973). In addition to the Court of Appeals for the Third Circuit, in this case, the Courts of Appeals for the Fourth, Fifth, Seventh, and District of Columbia Circuits have held that narcotics offenders are eligible for parole. See Alvarado v. McLaughlin, 486 F.2d 541 (CA4 1973); Amaya v. United States Board of Parole, 486 F.2d 940 (CA5 1973); United States v. McGarr, 461 F.2d 1 (CA7 1972); United States v. Marshall, 158 U.S.App.D.C. 283, 485 F.2d 1062 (1973).
8
Title 18 U.S.C. § 4208(a) provides:
'(a) Upon entering a judgment of conviction, the court having jurisdiction to impose sentence, when in its opinion the ends of justice and best interests of the public require that the defendant be sentenced to imprisonment for a term exceeding one year, may (1) designate in the sentence of imprisonment imposed a minimum term at the expiration of which the prisoner shall become eligible for parole, which term may be less than, but shall not be more than one-third of the maximum sentence imposed by the court, or (2) the court may fix the maximum sentence of imprisonment to be served in which event the court may specify that the prisoner may become eligible for parole at such time as the board of parole may determine.'
9
The statement in Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972), that '(p)arole arises after the end of the criminal prosecution, including imposition of sentence' was addressed to the decision determining the time of release on parole as distinguished from the decision determining eligibility.
10
Respondent argues that, since the 1970 Act contains its own saving clause, § 1103(a), that specific directive should be read to supersede the general clause § 109. But only if § 1103(a) can be said by fair implication or expressly to conflict with § 109 would there be reason to hold that § 1103(a) superseded § 109. See Great Northern R. Co. v. United States, 208 U.S. 452, 465—466, 28 S.Ct. 313, 316—317, 52 L.Ed. 567 (1908). We find no conflict.
11
The Court of Appeals, relying on statements in opinions of this Court that § 109 is intended to obviate 'mere technical abatement(s),' see Hamm v. Rock Hill, 379 U.S. 306, 314, 85 S.Ct. 384, 390, 13 L.Ed.2d 300 (1964), held that, since respondent's conviction and sentence would remain intact even if he were released on parole, the purposes of 1 U.S.C. § 109 would not be served by applying it to save the no-parole provision of 26 U.S.C. § 7237(d). 483 F.2d 656, 663; see United States v. Stephens, 449 F.2d 103, 105—106 (CA9 1971). This analysis, it seems to us, begs the relevant question. The no-parole provision of 26 U.S.C. § 7237(d) was directly incorporated into the sentencing provisions of 21 U.S.C. § 174 and 26 U.S.C. § 7237(a), see n. 3, supra, and if the repeal of 26 U.S.C. § 7237(d) can be viewed as mitigating respondent's punishment under those sections, his conviction and sentence would not be left intact by the repealer and his prosecution would 'technically' abate under the common-law rule. Thus, the appropriate inquiry is whether parole ineligibility is a 'penalty, forfeiture, or liability' for his offense that survives the repealer.
12
In Morrissey v. Brewer, 408 U.S., at 482, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484, in determining that parole may not be revoked without affording the parolee procedural due process, we observed:
'The liberty of a parole enables him to do a wide range of things open to persons who have never been convicted of any crime. . . . Subject to the conditions of his parole, he can be gainfully employed and is free to be with family and friends and to form the other enduring attachments of normal life. Though the State properly subjects him to many restrictions not applicable to other citizens, his condition is very different from that of confinement in a prison.' (Footnote omitted.)
1
See, e.g., Hamm v. Rock Hill, 379 U.S. 306, 85 S.Ct. 384, 13 L.Ed.2d 300 (1964).
2
The issue certified and decided in United States v. Reisinger, 128 U.S. 398, 9 S.Ct. 99, 32 L.Ed. 480 (1888), was only whether a prosecution under a repealed criminal statute survived the repeal. 'Penalty' appears to have been used there interchangeably with the concept of criminal liability. See also United States v. Smith, 433 F.2d 341 (CA4 1970), cert. denied, 401 U.S. 942, 91 S.Ct. 949, 28 L.Ed.2d 223 (1971); United States v. Brown, 429 F.2d 566 (CA5 1970); Faubion v. United States, 424 F.2d 437 (CA10 1970).
3
In Kirby and Lovely the Courts of Appeals construed the general saving clause in connection with repealing statutes' saving clauses that provided for the nonabatement of any 'rights and liabilities' under the repealed acts. It is interesting to note that all the cases cited by the Court, ante, at 661, and petitioner, Brief for Petitioner 16—17, for the proposition that sentence as well as prosecution survives under the general saving clause, were decided in circuits that subsequently rejected the extension sought by petitioner in the present case.
4
Petitioner concedes that granting parole eligibility presents no institutional problems.
'Neither the Bureau of Prisons nor the Board of Parole believes that it would impede the proper performance of their functions if they were required to consider narcotics offenders convicted under the prior statute eligible for parole under 18 U.S.C. 4202. Such a requirement would not demand the granting of parole to any individual prisoner unless the Board determines that his supervised release from confinement is in the interests of both the prisoner and society.' Brief for Petitioner 8.
5
As the Court notes, ante, at 659, n. 9, in Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972), we stated that '(P)arole arises after the end of the criminal prosecution, including imposition of (the) sentence.' The fact that the decision might have dealt with release rather than the determination of eligibility does not eliminate the conceptual proposition that parole eligibility is an event separate from sentencing, and I feel that the majority's attempted distinction is not persuasive.
6
Perea v. United States Board of Parole, 480 F.2d 608 (CA10 1973).
7
United States ex rel. Marrero v. Warden, 483 F.2d 656 (CA3 1973) (the instant case); Alvarado v. McLaughlin, 486 F.2d 541 (CA4 1973), pet. for cert. pending sub nom. McLaughlin v. Prieto; Amaya v. United States Board of Parole, 486 F.2d 940 (CA5 1973), pet. for cert. pending; United States v. Marshall, 158 U.S.App.D.C. 283, 286, 485 F.2d 1062, 1065 (1973). See United States v. Huguet, 481 F.2d 888 (CA2 1973) (question pretermitted). See also United States v. McGarr, 461 F.2d 1, 4 (CA7 1972); United States v. Stephens, 449 F.2d 103 (CA9 1971). The Second Circuit's earlier decision in United States v. De Simone, 468 F.2d 1196 (1972), cert. denied, 410 U.S. 989, 93 S.Ct. 1499, 36 L.Ed.2d 188 (1973), cited by the Court, ante, at 656, n. 7, was referred to in Huguet, supra, and 'cannot be regarded as controlling.' 481 F.2d, at 891.
| 01
|
417 U.S. 703
94 S.Ct. 2578
41 L.Ed.2d 418
BANGOR PUNTA OPERATIONS, INC., et al., Petitioners,v.BANGOR & AROOSTOOK RAILROAD COMPANY et al.
No. 73—718.
Argued April 15, 1974.
Decided June 19, 1974.
Syllabus
In 1964 petitioner Bangor Punta Corp. (Bangor Punta), through its wholly owned subsidiary, petitioner Bangor Punta Operations, Inc., acquired 98.3% of the outstanding stock of respondent Bangor & Aroostock Railroad Co. (BAR), a Maine railroad, by purchasing all the assets of BAR's holding company, Bangor & Aroostock Corp. (B&A). From 1964 to 1969 Bangor Punta controlled and directed BAR. In 1969 Bangor Punta, again through its subsidiary, sold all its BAR stock to Amoskeag Co., which then assumed responsibility for BAR's management and later acquired additional shares to give it 99% ownership of the outstanding stock. In 1971, BAR and its subsidiary filed an action against Bangor Punta and its subsidiary, alleging various acts of corporate mismanagement of BAR during the period of control from 1960 through 1967 by Bangor Punta and B&A, and seeking damages for violations of the federal antitrust and securities laws, the Maine Public Utilities Act, and the common law of Maine. The District Court first noted that Amoskeag would be the principal beneficiary of any recovery, and was thus the real party in interest, and that since Amoskeag had acquired its BAR stock long after the alleged wrongs had occurred, any recovery by it would be a windfall. The District Court then dismissed the action on the ground that since Amoskeag would have been barred from maintaining a shareholder derivative action due to its failure to satisfy the 'contemporaneous ownership' requirement of both Fed.Rule Civ.Proc. 23.1(1), and state law, equitable principles precluded the use of the corporate fiction to evade that requirement. The Court of Appeals reversed primarily on the ground that in view of BAR's status as a 'public' or 'quasi-public' corporation and the important nature of the services it provides, any recovery by BAR would also inure to the public's benefit, a factor the court found to be sufficient to support a corporate cause of action and to render any windfall to Amoskeag irrelevant. Held: 1. The equitable principles that a stockholder, who has purchased all or substantially all the shares of a corporation from a vendor at a fair price, may not seek to have the corporation recover against that vendor for prior corporate mismanagement, and that the corporate entity may be disregarded if equity so demands, preclude respondent corporations from maintaining the action under either the federal antitrust and securities laws or state law. Pp. 710—713.
(a) Amoskeag, having purchased 98.3% of the stock of BAR from Bangor Punta and alleging no fraud, would have no standing in equity to maintain this action for alleged corporate mismanagement. Home Fire Insurance Co. v. Barber, 67 Neb. 644, 93 N.W. 1024. Pp. 711—712; 713—714.
(b) As the principal beneficiary of any recovery and itself estopped from complaining of petitioners' alleged wrongs, Amoskeag cannot avoid the command of equity through the guise of proceeding in the name of respondent corporations which it owns and controls. Pp. 711—712; 713—714.
2. The Court of Appeals' assumption that any recovery would necessarily benefit the public is unwarranted and also overlooks the fact that Amoskeag, the actual beneficiary of any recovery, would be unjustly enriched since it has sustained no injury. Neither the federal antitrust and securities laws nor the applicable state laws contemplate a windfall recovery by Amoskeag in these circumstances. Pp. 714—716.
3. Deterrence of railroad mismanagement is not in itself sufficient ground for allowing respondents to recover. If such deterrence were the only objective, it would suffice if any plaintiff were willing to file a complaint, and no injury or violation of a legal duty to the particular plaintiff would have to be alleged. P. 317.
482 F.2d 865, reversed.
James V. Ryan, New York City, for petitioners.
Alan L. Lefkowitz, for respondents.
Mr. Justice POWELL delivered the opinion of the Court.
1
This case involves an action by a Maine railroad corporation seeking damages from its former owners for violations of federal antitrust and securities laws, applicable state statutes, and common-law principles. The complaint alleged that the former owners had engaged in various acts of corporate waste and mismanagement during the period of their control. The shareholder presently in control of the railroad acquired more than 99% of the railroad's shares from the former owners long after the alleged wrongs occurred. We must decide whether equitable principles applicable under federal and state law preclude recovery by the railroad in these circumstances.
2
* Respondent Bangor & Aroostock Railroad Co. (BAR), a Maine corporation, operates a railroad in the northern part of the State of Maine. Respondent Bangor Investment Co., also a Maine corporation, is a wholly owned subsidiary of BAR. Petitioner Bangor Punta Corp. (Bangor Punta), a Delaware corporation, is a diversified investment company with business operations in several areas. Petitioner Bangor Punta Operations, Inc. (BPO), a New York corporation, is a wholly owned subsidiary of Bangor Punta.
3
On October 13, 1964, Bangor Punta, through its subsidiary BPO, acquired 98.3% of the outstanding stock of BAR. This was accomplished by the subsidiary's punchase of all the assets of Bangor & Aroostock Corp. (B&A), a Maine corporation established in 1960 as the holding company of BAR. From 1964 to 1969, Bangor Punta controlled and directed BAR through its ownership of about 98.3% of the outstanding stock. On October 2, 1969, Bangor Punta, again through its subsidiary, sold all of its stock for $5,000,000 to Amoskeag Co., a Delaware investment corporation. Amoskeag assumed responsibility for the management of BAR and later acquired additional shares to give it ownership of more than 99% of all the outstanding stock.
4
In 1971, BAR and its subsidiary filed the present action against Bangor Punta and its subsidiary in the United States District Court for the District of Maine. The complaint specified 13 counts of alleged mismanagement, misappropriation, and waste of BAR's corporate assets occurring during the period from 1960 through 1967 when B&A and then Bangor Punta controlled BAR.1 Damages were sought in the amount of $7,000,00 for violations of both federal and state laws. The federal statutes and regulations alleged to have been violated included § 10 of the Clayton Act, 15 U.S.C. § 20; and § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b); and Rule 10b—5, 17 CFR § 240.10b—5, as promulgated thereunder by the Securities and Exchange Commission. The state claims were grounded on § 104 of the Maine Public Utilities Act, Maine Rev.Stat. Ann., Tit 35, § 104 (1965), and the common law of Maine.
5
The complaint focused on four intercompany transactions which allegedly resulted in injury to BAR.2 Counts I and II averred the B&A, and later Bangor Punta, overcharged BAR for various legal, accounting, printing, and other services. Counts III, IV, V, and VI averred that B&A improperly acquired the stock of the St. Croix Paper Co. which BAR owned through its subsidiary. Counts VII, VIII, IX, and X charged that B&A and Bangor Punta improperly caused BAR to declare special dividends to its stockholders, including B&A and Bangor Punta, and also caused BAR's subsidiary to borrow in order to pay regular dividends. Counts XI, XII, and XIII charged that B&A improperly caused BAR to excuse payment by B&A and Bangor Punta of the interest due on a loan made by BAR to B&A. In sum, the complaint alleged that during the period of their control of BAR, Bangor Punta, and its predecessor in interest B&A, 'exploited it solely for their own purposes' and 'calculatedly drained the resources of BAR in violation of law for their own benefit.'
6
The District Court granted petitioners' motion for summary judgment and dismissed the action. 353 F.Supp. 724 (1972). The court first observed that although the suit purported to be a primary action brought in the name of the corporation, the real party in interest and hence the actual beneficiary of any recovery, was Amoskeag, the present owner of more than 99% of the outstanding stock of BAR. The court then noted that Amoskeag had acquired all of its BAR stock long after the alleged wrongs occurred and that Amoskeag did not contend that it had not received full value for its purchase price, or that the purchase transaction was tainted by fraud or deceit. Thus, any recovery on Amoskeag's part would constitute a windfall because it had sustained no injury. With this in mind, the court then addressed the claims based on federal law and determined that Amoskeag would have been barred from maintaining a shareholder derivative action because of its failure to satisfy the 'contemporaneous ownership' requirement of Fed.Rule Civ.Proc. 23.1(1).3 Finding that equitable principles prevented the use of the corporate fiction to evade the proscription of Rule 23.1, the court concluded that Amoskeag's efforts to recover under the Securities Exchange Act and the Clayton Act must fail. Turning to the claims based on state law, the court recognized that the applicability of Rule 23.1(1) has been questioned where federal jurisdiction is based on diversity of citizenship.4 The court found it unnecessary to resolve this issue, however, since its examination of state law indicated that Maine probably followed the 'prevailing rule' requiring contemporaneous ownership in order to maintain a shareholder derivative action. Thus, whether the federal rule or state substantive law applied, the present action could not be maintained.
7
The United States Court of Appeals for the First Circuit reversed. 482 F.2d 865 (1973). The court stated that its disagreement with the District Court centered primarily on that court's assumption that Amoskeag would be the 'sole beneficiary' of any recovery by BAR. The Court of Appeals thought that in view of the railroad's status as a 'public' or 'quasi-public' corporation and the important nature of the services it provides, any recovery by BAR would also inure to the benefit of the public. The court stated that this factor sufficed to support a corporate cause of action and rendered any windfall to Amoskeag irrelevant. In addition, the court noted that to permit BAR to recover for the alleged wrongs would provide a needed deterrent to 'patently undesirable conduct' in the management of railroads. Id., at 871. Finally, the court confronted the possibility that any corporate recovery might be diverted to enrich the present BAR shareholders, mainly Amoskeag, rather than re-invested to improve the railroad's services for the benefit of the public. Although troubled by this prospect, the court concluded that the public interest would nonetheless be better served by insuring that petitioners would not be immune to civil liability for their allegedly wrongful conduct. Without deciding the issue, the court also suggested the possibility of devising 'court-imposed limitations' on the use BAR might make of any recovery to insure that the public would actually be benefitted.
8
We granted petitioners' application for certiorari. 414 U.S. 1127, 94 S.Ct. 863, 38 L.Ed.2d 752 (1974). We now reverse.
II
A.
9
We first turn to the question whether respondent corporations may maintain the present action under § 10 of the Clayton Act, 15 U.S.C. § 20, and § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and Rule 10b—5, 17 CFR § 240.10b—5. The resolution of this issue depends upon the applicability of the settled principle of equity that a shareholder may not complain of acts of corporate mismanagement if he acquired his shares from those who participated or acquiesced in the allegedly wrongful transactions. See, e.g., Bloodworth v. Bloodworth, 225 Ga. 379, 387, 169 S.E.2d 150, 156—157 (1969); Bookman v. R. J. Reynolds Tobacco Co., 138 N.J.Eq. 312, 372, 48 A.2d 646, 680 (Ch. 1946); Babcock v. Farwell, 245 Ill. 14, 40—41, 91 N.E. 683, 692—693 (1910).5 This principle has been invoked with special force where a shareholder purchases all or substantially all the shares of a corporation from a vendor at a fair price, and then seeks to have the corporation recover against that vendor for prior corporate mismanagement. See, e.g., Matthews v. Headley Chocolate Co., 130 Md. 523, 532—535, 100 A. 645, 650—651 (1917); Home Fire Insurance Co. v. Barber, 67 Neb. 644, 661—662, 93 N.W. 1024, 1030—1031 (1903). See also Amen v. Black, 234 F.2d 12, 23 (CA10 1956). The equitable considerations precluding recovery in such cases were explicated long ago by Dean (then Commissioner) Roscoe Pound in Home Fire Insurance Co. v. Barber, supra. Dean Pound, writing for the Supreme Court of Nebraska, observed that the shareholders of the plaintiff corporation in that case had sustained no injury since they had acquired their shares from the alleged wrongdoers after the disputed transactions occurred and had received full value for their purchase price. Thus, any recovery on their part would constitute a windfall, for it would enable them to obtain funds to which they had no just title or claim. Moreover, it would in effect allow the shareholders to recoup a large part of the price they agreed to pay for their shares, notwithstanding the fact that they received all they had bargained for. Finally, it would permit the shareholders to reap a profit from wrongs done to others, thus encouraging further such speculation. Dean Pound stated that these consequences rendered any recovery highly inequitable and mandated dismissal of the suit.
10
The considerations supporting the Home Fire principle are especially pertinent in the present case. As the District Court pointed out, Amoskeag, the present owner of more than 99% of the BAR shares, would be the principal beneficiary of any recovery obtained by BAR. Amoskeag, however, acquired 98.3% of the outstanding shares of BAR from petitioner Bangor Punta in 1969, well after the alleged wrongs were said to have occurred. Amoskeag does not contend that the purchase transaction was tainted by fraud or deceit, or that it received less than full value for its money. Indeed, it does not assert that it has sustained any injury at all. Nor does it appear that the alleged acts of prior mismanagement have had any continuing effect on the corporations involved or the value of their shares.6 Nevertheless, by causing the present action to be brought in the name of respondent corporations, Amoskeag seeks to recover indirectly an amount equal to the $5,000,000 it paid for its stock, plus an additional $2,000,000. All this would be in the form of damages for wrongs petitioner Bangor Punta is said to have inflicted, not upon Amoskeag, but upon respondent corporations during the period in which Bangor Punta owned 98.3% of the BAR shares. In other words, Amoskeag seeks to recover for wrongs Bangor Punta did to itself as owner of the railroad.7 At the same time it reaps this windfall, Amoskeag desires to retain all its BAR stock. Under Home Fire, it is evident that Amoskeag would have no standing in equity to maintain the present action.8
11
We are met with the argument, however, that since the present action is brought in the name of respondent corporations, we may not look behind the corporate entity to the true substance of the claims and the actual beneficiaries. The established law is to the contrary. Although a corporation and its shareholders are deemed separate entities for most purposes, the corporate form may be disregarded in the interests of justice where it is used to defeat an overriding public policy. New Colonial Ice Co. v. Helvering, 292 U.S. 435, 442, 54 S.Ct. 788, 791, 78 L.Ed. 1348 (1934); Chicago, M. & St. P.R. Co. v. Minneapolis Civic Assn., 247 U.S. 490, 501, 38 S.Ct. 553, 557, 62 L.Ed. 1229 (1918). In such cases, courts of equity, piercing all fictions and disguises, will deal with the substance of the action and not blindly adhere to the corporate form. Thus, where equity would preclude the shareholders from maintaining an action in their own right, the corporation would also be precluded. Amen v. Black, supra; Capitol Wine & Spirit Corp. v. Pokrass, 227 App.Div. 184, 98 N.Y.S.2d 291 (1950), aff'd, 302 N.Y. 734, 98 N.E.2d 704 (1951); Matthews v. Headley Chocolate Co., supra; Home Fire Insurance Co. v. Barber, supra. It follows that Amoskeag, the principal beneficiary of any recovery and itself estopped from complaining of petitioners' alleged wrongs, cannot avoid the command of equity through the guise of proceeding in the name of respondent corporations which it owns and controls.
B
12
Respondents fare no better in their efforts to maintain the present actions under state law, specifically § 104 of the Maine Public Utilities Act, Maine Rev.Stat.Ann., Tit. 35, § 104 (1965), and the common law of Maine. In Forbes v. Wells Beach Casino, Inc., 307 A.2d 210, 223 n. 10 (1973), the Maine Supreme Judicial Court recently declared that it had long accepted the equitable principle that a 'stockholder has no standing if either he or his vendor participated or acquiesced in the wrong . . ..' See Hyams v. Old Dominion Co., 113 Me. 294, 302, 93 A. 747, 750 (1915).9 Thus, Amoskeag would be barred from maintaining the present action under Maine law since it acquired its shares from petitioners, the alleged wrongdoers. Moreover, the principle that the corporate entity may be disregarded if equity so demands is accepted by Maine precedents. See, e.g., Bonnar-Vawter, Inc. v. Johnson, 157 Me. 380, 387—388, 173 A.2d 141, 145 (1961).
III
13
In reaching the contrary conclusion, the Court of Appeals stated that it could not accept the proposition that Amoskeag would be the 'sole beneficiary' of any recovery by BAR. 482 F.2d, at 868. The court noted that in view of the railroad's status as a 'quasi-public' corporation and the essential nature of the services it provides, the public had an identifiable interest in BAR's financial health. Thus, any recovery by BAR would accrue to the benefit of the public through the improvement in BAR's economic position and the quality of its services. The court thought that this factor rendered and windfall to Amoskeag irrelevant.
14
At the outset, we note that the Court of Appeals' assumption that any recovery would necessarily benefit the public is unwarranted. As that court explicitly recognized, any recovery by BAR could be diverted to its shareholders, namely Amoskeag, rather than reinvested in the railroad for the benefit of the public. Id., at 871. Nor do we believe this possibility can be avoided by respondents' suggestion that the District Court impose limitations on the use BAR might make of the recovery.10 There is no support for such a result under either federal or state law. BAR would be entitled to distribute the recovery in any lawful manner it may choose, even if such distribution resulted only in private enrichment. In sum, there is no assurance that the public would receive any benefit at all from these funds.
15
The Court of Appeals' position also appears to overlook the fact that Amoskeag, the actual beneficiary of any recovery through its ownership of more than 99% of the BAR shares, would be unjustly enriched since it has sustained no injury.11 It acquired substantially all the BAR shares from Bangor Punta subsequent to the alleged wrongs and does not deny that it received full value for is purchase price. No fraud or deceit of any kind is alleged to have been involved in the transaction.12 The equitable principles of Home Fire preclude Amoskeag from reaping a windfall by exhancing the value of its bargain to the extent of the entire purchase price plus an additional $2,000,000. Amoskeag would in effect have acquired a railroad worth $12,000,000 for only $5,000,000. Neither the federal antitrust or securities laws nor the applicable state laws contemplate recovery by Amoskeag in these circumstances.13
16
The Court of Appeals further stated that it was important to insure that petitioners would not be immune from liability for their wrongful conduct and noted that BAR's recovery would provide a needed deterrent to mismanagement of railroads. Our difficulty with this argument is that it proves too much. If deferrence were the only objective, then in logic any plaintiff willing to file a complaint would suffice. No injury or violation of a legal duty to the particular plaintiff would have to be alleged. The only prerequisite would be that the plaintiff agree to accept the recovery, lest the supposed wrongdoer be allowed to escape a reckoning. Suffice it to say that we have been referred to no authority which would support so novel a result, and we decline to adopt it.14
17
We therefore conclude that respondent corporations may not maintain the present action.15 The judgment of the Court of Appeals is reversed.
18
So ordered.
19
Mr. Justice MARSHALL, with whom Mr. Justice DOUGLAS, Mr. Justice BRENNAN, and Mr. Justice WHITE join, dissenting.
20
This suit, brought by and in the name of respondent railroad and its wholly owned subsidiary, seeks to recover damages for the conversion and misappropriation of corporate assets allegedly committed by petitioners, Bangor Punta and its wholly owned subsidiary, during a period when the latter was the majority shareholder of the railroad. Ordinarily, of course, a corporation may seek legal redress against those who have defrauded it of its assets. And when it does so: 'A corporation and its stockholders are generally to be treated as separate entities. Only under exceptional circumstances . . . can the difference be disregarded.' Burnet v. Clark, 287 U.S. 410, 415, 53 S.Ct. 207, 209, 77 L.Ed. 397 (1932). See also New Colonial Ice Co. v. Helvering, 292 U.S. 435, 442, 54 S.Ct. 788, 791, 78 L.Ed. 1348 (1934).
21
The Court finds such exceptional circumstances here because, in its view, any recovery had by the corporation will be a windfall to Amoskeag, the present owner of approximately 99% of the corporation's stock, which purchased most of that stock from the petitioners, the alleged wrongdoers. The Court therefore concludes that this suit must be barred under the equitable principles set forth in Home Fire Insurance Co. v. Barber, 67 Neb. 644, 93 N.W. 1024 (1903).
22
I cannot agree. Having read the precedents relied upon by the majority, I respectfully submit that they not only do not support, but indeed directly contradict the result reached today. While purporting to rely on settled principles of equity, the Court sadly mistakes the facts of this case and the established powers of an equity court. In my view, no windfall recovery to Amoskeag is inevitable, or even likely, on the facts of this case. But even if recovery by respondents would in fact be a windfall to Amoskeag, the Court disregards the interests of the railroad's creditors, as well as the substantial public interest in the continued financial viability of the Nation's railroads which have been so heavily plagued by corporate mismanagement, and ignores the powers of the court to impose equitable conditions on a corporation's recovery so as to insure that these interests are protected. The Court's decision is also inconsistent with prior decisions of this Court limiting the application of equitable defenses when they impede the vindication, through private damage actions, of the important policies of the federal antitrust laws.
23
* The majority places primary reliance on Dean Pound's decision in Home Fire Insurance Co. v. Barber, supra. In that case, all of the shares of the plaintiff corporation had been acquired from the alleged wrongdoers after the transactions giving rise to the causes of action stated in the complaint. Since none of the corporation's shareholders held stock at the time of the alleged wrongful transactions, none had been injured thereby. Dean Pound therefore held that equity barred the corporation from pursuing a claim where none of its shareholders could complain of injury.
24
Dean Pound thought it clear, however, that the opposite result would obtain if any of the present shareholders
25
'are entitled to complain of the acts of the defendant and of his past management of the company; for, if any of them are so entitled, there can be no doubt of the right and duty of the corporation to maintain this suit. It would be maintainable in such a case, even though the wrong-doers continued to be stockholders and would share in the proceeds.' 67 Neb., at 655, 93 N.W., at 1028.
26
Cf. Capitol Wine & Spirit Corp. v. Pokrass, 277 App.Div. 184, 186, 98 N.Y.S.2d 291, 293 (1950), aff'd, 302 N.Y. 734, 98 N.E.2d 704 (1951).
27
The rationale for the distinction drawn by Dean Pound is simple enough. The sole shareholder who defrauds or mismanages his own corporation hurts only himself. For the corporation to sue him for his wrongs is simply to take money out of his right pocket and put it in his left. It is therefore appropriate for equity to intervene to pierce the corporate veil. But where there are minority shareholders, misappropriation and conversion of corporate assets injure their interests as well as the interest of the majority shareholder. The law imposes upon the directors of a corporation a fiduciary obligation to all of the corporation's shareholders, and part of that obligation is to use due care to ensure that the corporation seek redress where a majority shareholder has drained the corporation's resources for his own benefit and to the detriment of minority shareholders.1 Indeed, minority shareholders would be entitled to bring a derivative action, on behalf of the corporation, to enforce the corporation's right to recover for the injury done to it, if the directors turned down a request to seek relief.2 And any recovery obtained in such an action would belong to the corporation, not to the minority shareholders as individuals, for the shareholder in a derivative action enforces not his own individual rights, but rights which the corporation has. See Meyer v. Fleming, 327 U.S. 161, 167, 66 S.Ct. 382, 386, 90 L.Ed. 595 (1946); Ross v. Bernhard, 396 U.S. 531, 538, 90 S.Ct. 733, 738, 24 L.Ed.2d 729 (1970); Koster v. Lumbermens Mutual Co., 330 U.S. 518, 522, 67 S.Ct. 828, 830, 91 L.Ed. 1067 (1947).
28
These elementary principles of corporate law should control this case. Although first Bangor Punta and then Amoskeag owned the great majority of the share of respondent railroad, the record shows that there are many minority shareholders who owned BAR stock during the period from 1960 through 1967 when the transactions underlying the railroad's complaint took place, and who still owned that stock in 1971 when the complaint was filed.3 Any one of these minority shareholders would have had the right, during the 1960—1967 period, as well as thereafter, to bring a derivative action on behalf of the corporation against the majority shareholder for misappropriation of corporate assets. As Dean Pound states, such an action could be brought, 'even though the wrongdoers continued to be stockholders and would share in the proceeds.' 67 Neb., at 655, 93 N.W., at 1028.
29
It is ironic, then, to see the Court adopt a result which bars the corporation itself from bringing a suit which a minority shareholder could have brought in the corporation's behalf. And it is peculiar, to say the least, that the law should prevent the directors of BAR from fulfilling the fiduciary obligation to minority shareholders which the law devolves upon them. Such a result not only cannot be derived from Home Fire, but is directly in conflict with its holding.
II
30
Even assuming, however, that the equitable principles of Home Fire should be extended to the situation where the present majority shareholder does not own all the outstanding shares, there are other features distinguishing this case from Home Fire and calling for the recognition of the railroad's right to maintain this action. To begin with, it is not at all clear from the record that any recovery had by the railroad will in fact be a windfall to Amoskeag, its present majority shareholder.
31
The Court relies principally on its own observation that Amoskega was not defrauded or deceived in its transaction with petitioners, that it received full value for its money, and that it has received no injury whatsoever. See ante, at 711. The record, in my view, simply will not support these 'findings.' That there is no specific allegation in the complaint that Amoskeag was deceived or otherwise injured by petitioners is understandable, since this lawsuit is not brought by Amoskeag, but rather by respondent railroad in its own name.
32
Furthermore, a fair reading of the complaint indicates that Amoskeag most likely has suffered injury. The causes of action relate primarily to transactions involving the railroad and its former majority stockholder between 1960 and 1967. Amoskeag purchased its shares from petitioners on October 2, 1969, after these events. But nowhere in the record is there any concession that, at the time of its purchase, Amoskeag was fully aware of the misuses of corporate assets alleged in the complaint. To the contrary, the complaint asserts that at the time of Amoskeag's purchase, the Interstate Commerce Commission's Bureau of Accounts was in the middle of an investigation into the relationship between the railroad and its majority shareholder. Its report, not made public until July 1971, laid bare for the first time the wrongful intercorporate transactions that are the subject of the present suit and recommended that legal remedies be explored to require petitioners to pay back to the carrier assets taken without compensation and charges made where no services were performed. The plain import of the complaint is that Amoskeag did not know of these wrongful transactions prior to public disclosure of this report. In fact, an introductory paragraph of the complaint alleges: 'All wrongs hereinafter complained of were discovered by BAR's new management's investigation of all facets of the inter-corporate relationships and were not previously known to the new BAR management.' App. 6. At this stage in the litigation, such allegations must be accepted as true, the District Court having dismissed the suit without inquiring into the truth of any of its claims. There is accordingly no basis in the record for presuming that Amoskeag was not the victim of any deception.
33
But even assuming that Amoskeag received close to full value for its money, it is by no means inevitable that any recovery obtained by the railroad will inure to Amoskeag's benefit, rather than to the benefit of the corporation, its creditors, and the public it aims to serve. The Court makes much of the supposed lack of power of a court of equity to impose limitations on the use BAR might make of the recovery. Ante, at 715. 'Traditionally,' however, '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). 'A court of equity may in its discretion in the exercise of the jurisdiction committed to it grant or deny relief upon performance of a condition which will safeguard the public interest.' SEC v. United States Realty & Improvement Co., 310 U.S. 434, 455, 60 S.Ct. 1044, 1053, 84 L.Ed. 1293 (1940).4 Indeed, if there be any doubt as to the power of a court of equity, BAR informed the District Court that the railroad would voluntarily enter into a stipulation to ensure that any recovery would be reinvested in the railroad, for upgrading the right-of-way and for new equipment, and that Amoskeag would voluntarily join the stipulation if requested. Brief for Respondents 30.
34
Improved equipment and rights-of-way, of course, might benefit Amoskeag indirectly by increasing to some extent the value of its equity. But such expenditures would hardly bring a dollar-for-dollar increase in the price Amoskeag would receive if it were to sell its stock. The value of a solvent railroad's stock is determined by many factors—earning capacity; historical income, excluding nonrecurring items; balance sheet strength; divided history; and condition of plant and equipment. Under an appropriate decree, only the last of these factors would be enhanced by the railroad's recovery. It is therefore not inevitable that any recovery had by the railroad would benefit its current majority shareholder and there is no basis, in any event, for deeming such a benefit a windfall.
III
35
But let us assume that the majority is correct in finding some windfall recovery to Amoskeag inevitable in this case. This is still but one of several factors which a court of equity should consider in determining whether the public interest would best be served by piercing the corporate veil in order to bar this action. The public interest against windfall recoveries is no doubt a significant factor which a court of equity should consider. But in this case it is clearly outweighed by other considerations, equally deserving the recognition of a court of equity, supporting the maintenance of the railroad's action against those who have defrauded it of its assets.
36
Equity should take into account, for example, the railroad's relationships with its creditors. BAR owes a debt of approximately $23 million, indicating almost 90% debt ownership of the enterprise. App. 7. If the allegations of the complaint are true, the conversion and misappropriation of corporate assets committed by petitioners placed the railroad close to the brink of bankruptcy, to the certain detriment of its creditors. The complaint alleges that net revenue in 1970 was a loss of approximately $1.3 million. Id., at 5. And one of the specific causes of action in the complaint is that Bangor Punta procured the declaration by BAR of a dividend which was unlawful under a mortgage bond indenture due to insufficient working capital. Id., at 15—18.
37
Surely the corporation, as an entity independent of its shareholders, has an interest of its own in assuring that it can meet its responsibility to its creditors. And I do not see how it can do so unless it remains free to bring suit against those who have defrauded it of its assets. The Court's result, I fear, only gives added incentive to abuses of the corporate form which equity has long sought to discourage—allowing a majority shareholder to take advantage of the protections of the corporate form while bleeding the corporation to the detriment of its creditors, and then permitting the majority shareholder to sell the corporation and remain free from any liability for its wrongdoing.
38
More importantly, equity should take into account the public interest at stake in this litigation. As the Court of Appeals indicated:
39
'The public's interest, unlike the private interest of stockholder or creditor, is not easily defined or quantified, yet it is real and cannot, we think, be overlooked in determining whether the corporation, suing in its own right, should be estopped by equitable defenses pertaining only to its controlling stockholder.' 482 F.2d 865, 868 (CA1 1973).
40
The public's interest in the financial health of railroads has long been recognized by this Court:
41
'(R)ailways are public corporations organized for public purposes, granted valuable franchises and privileges, among which the right to take the private property of the citizen in invitum is not the least, . . . many of them are the donees of large tracts of public lands and of gifts of money by municipal corporations, and . . . they all primarily own duties to the public of a higher nature even than that of earning large dividends for their shareholders. The business which the railroads do is of a public nature, closely affecting almost all classes in the community . . ..' United States v. Trans-Missouri Freight Assn., 166 U.S., 290, 332 333, 17 S.Ct. 540, 556, 41 L.Ed. 1007 (1897).
42
The same public interest has been recognized in a wide variety of legislative enactments. As early as the Transportation Act of 1920, 'Congress undertook to develop and maintain, for the people of the United States, an adequate railway system. It recognized that preservation of the earning capacity, and conservation of the financial resources, of individual carriers is a matter of national concern . . ..' Texas & Pacific R. Co. v. Gulf, C. & S.F.R. Co., 270 U.S. 266, 277, 46 S.Ct. 263, 266, 70 L.Ed. 578 (1926). Later, Congress added § 77 to Chapter VIII of the Bankruptcy Act, providing that financial reorganization of ailing railroads should be achieved for the benefit of the public, and not simply in the interests of creditors or stockholders. See New Haven Inclusion Cases, 399 U.S. 392, 492, 90 S.Ct. 2054, 2109, 26 L.Ed.2d 691 (1970).
43
The significance of the public interest in the financial well-being of railroads should be self-evident in these times, with many of our Nation's railroads in dire financial straints and with some of the most important lines thrown into recorganization proceedings. Indeed, the prospect of large-scale railroad insolvency in the Northeast United States was deemed by Congress to present a national emergency, prompting enactment of the Regional Rail Reorganization Act of 1973, Pub.L. 93—236, 87 Stat. 985 (1974), in which the Federal Government, for the first time, committed tax dollars to a long-term commitment to preserve adequate railroad service for the Nation. As the Court of Appeals held, given this background, 'it would be unrealistic to treat a railroad's attempt to secure the reparation of misappropriated assets as of concern only to its controlling stockholder.' 482 F.2d, at 870. '(T)he public has a real, if inchoate, interest' in this action. Id., at 871.
44
The Court gives short shrift, however, to the public interest. While recognizing that respondents' complaint is based primarily on federal antitrust and securities statutes designed to benefit the public, and while conceding that the statutorily designated plaintiffs are respondent corporations, the Court nevertheless holds that these plaintiffs cannot maintain this action because any recovery by Amoskeag would violate established principles of equity. Ante, at 716—717, n. 13. I cannot agree, for the public interest and the legislative purpose should always be heavily weighed by a court of equity. As this Court has frequently recognized, equity should pierce the corporate veil only when necessary to serve some paramount public interest, see Schenley Distillers Corp. v. United States, 326 U.S. 432, 437, 66 S.Ct. 247, 249, 90 L.Ed. 181 (1946); Anderson v. Abbott, 321 U.S. 349, 362, 64 S.Ct. 531, 537, 88 L.Ed. 793 (1944), or 'where it otherwise would present an obstacle to the due protection or enforcement of public or private rights.' New Colonial Ice Co. v. Helvering, 292 U.S., at 442, 54 S.Ct. at 791. Here, however, it is the failure to recognize the railroad's own right to maintain this suit which undercuts the public interest.
45
The Court's result substantially impairs enforcement of the state and federal statutes upon which the railroad bases many of its claims. For example, § 10 of the Clayton Act, 15 U.S.C. § 20, relied on in two substantial counts of the complaint, provides:
46
'No common carrier engaged in commerce shall have any dealings in securities, supplies, or other articles of commerce . . . to the amount of more than $50,000, in the aggregate, in any one year, with another corporation . . . when the said common carrier shall have upon its board of directors or as its president . . . any person who is at the same time of director (or) manager . . . of . . . such other corporation . . . unless . . . such dealings shall be with, the bidder whose bid is the most favorable to such common carrier, to be ascertained by competitive bidding . . ..'
47
As we have earlier had occasion to note, § 10 is not an ordinary corporate conflict-of-interest statute, but is part of our Nation's antitrust laws, specifically designed to protect common carriers such as railroads. See United States v. Boston & Maine R. Co., 380 U.S. 157, 85 S.Ct. 868, 13 L.Ed.2d 728 (1965); Minneapolis & St. Louis R. Co. v. United States, 361 U.S. 173, 190, 80 S.Ct. 229, 239, 4 L.Ed.2d 223 (1959). The purpose of § 10 'was to prohibit a corporation from abusing a carrier . . . through overreaching by, or other misfeasance of, common directors, to the financial injury of the carrier and the consequent impairment of its ability to serve the public interest.' 361 U.S., at 190, 80 S.Ct., at 240.
48
The private causes of action brought by respondent railroad under § 10 serve to vindicate this important congressional policy. See Klinger v. Baltimore & Ohio R. Co., 432 F.2d 506 (CA2 1970). And by barring this suit, notwithstanding the plain allegations in the complaint that the carrier as well as the public interest it serves were injured through violations of this section committed by petitioners,5 the Court directly frustrates the ends of Congress. Indeed, the Court encourages the very kind of abuses § 10 was designed to prohibit. The majority shareholder of a carrier can convert and misappropriate its assets through improper intercorporate transactions, with the 'consequent impairment of its ability to serve the public interest,' and then wash its hands of and remain free from any legal liability for its statutory violation by selling off its interest.6
49
I would find counsel instead in this Court's opinion in Perma Life Mufflers v. International Parts Corp., 392 U.S. 134, 138—139, 88 S.Ct. 1981, 1984, 20 L.Ed.2d 982 (1968). The Court took note in that case that '(w)e have often indicated the inappropriateness of invoking broad common-law barriers to relief where a private suit serves important public purposes.' As we recognized,
50
'the purposes of the antitrust laws are best served by insuring that the private action will be an everpresent threat to deter anyone contemplating business behavior in violation of the antitrust laws. The plaintiff who reaps the reward of treble damages may be no less morally reprehensible than the defendant, but the law encourages his suit to further the overriding public policy in favor of competition. A more fastidious regard for the relative moral worth of the parties would only result in seriously undermining the usefulness of the private action as a bulwark of antitrust enforcement.'
51
These principles have even greater force here, since Amoskeag, 'whatever its own lack of equity, is neither a wrongdoer nor a participant in any wrong.' 482 F.2d, at 870—871.
52
In the final analysis, the Court's holding does a disservice to one of the most settled of equitable doctrines, reflected in the maxim that '(e)quity will not suffer a wrong without a remedy.' Independent Wireless Tel. Co. v. Radio Corp. of America, 269 U.S. 459, 472, 46 S.Ct. 166, 171, 70 L.Ed. 357 (1926). Because I would follow that maxim here and permit respondent railroad to maintain this action to seek redress for the wrongs allegedly done to it and to the public interest it serves, I respectfully dissent.
1
Several of the alleged acts of corporate mismanagement occurred between 1960 and 1964 when B&A, BAR's holding company, was in control of the railroad. Liability for these acts was nevertheless sought to be imposed on Bangor Punta, even though it had no interest in either BAR or B&A during this period. The apparent basis for liability was the 1964 purchase agreement between B&A and Bangor Punta. The complaint in the instant case alleged that under the agreement Bangor Punta, through its subsidiary, assumed 'all . . . debts, obligations, contracts and liabilities' of B&A.
2
Bangor Punta was alleged to have effected these transactions through its wholly owned subsidiary BPO. For purposes of clarity, we shall attribute BPO's actions directly to Bangor Punta.
3
Rule 23.1(1), which specifies the requirements applicable to shareholder derivative actions, states that the complaint shall aver that 'the plaintiff was a shareholder or member at the time of the transaction of which he complains . . ..' This provision is known as the 'contemporaneous ownership' requirement. See 3B J. Moore, Federal Practice 23.1 et seq. (2d ed. 1974).
4
The 'contemporaneous ownership' requirement in shareholder derivative actions was first announced in Hawes v. Oakland, 104 U.S. 450, 26 L.Ed. 827 (1882), and soon thereafter adopted as Equity Rule 97. This provision was later incorporated in Equity Rule 27 and finally in the present Rule 23.1. After the decision in Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), the question arose whether the contemporaneous-ownership requirement was one of procedure or substantive law. If the requirement were substantive, then under the regime of Erie it could not be validly applied in federal diversity cases where state law permitted a non-contemporaneous shareholder to maintain a derivative action. See 3B J. Moore, Federal Practice 23.1.01—23.1.15(2) (2d ed. 1974). Although most cases treat the requirement as one of procedure, this Court has never resolved the issue. Ibid.
5
This principle obtains in the great majority of jurisdictions. See, e.g., Russell v. Louis Melind Co., 331 Ill.App. 182, 72 N.E.2d 869 (1947); Klum v. Clinton Trust Co., 183 Misc. 340, 48 N.Y.S.2d 267 (1944); Clark v. American Coal Co., 86 Iowa 436, 53 N.W. 291 (1892); Boldenweck v. Bullis, 40 Colo. 253, 90 P. 634 (1907). See 13 W. Fletcher, Cyclopedia Corporations § 5866 (1970 ed.); H. Ballantine, Corporations § 148 (1946 ed.).
6
In Home Fire, Dean Pound suggested that equitable principles might not prevent recovery where the effects of the wrongful acts continued and resulted in injury to present shareholders. 67 Neb. 644, 662, 93 N.W. 1024, 1031. In their complaint in the instant case, respondents alleged that '(t)he injury to BAR is a continuing one surviving the aforesaid sale from petitioner BPO to Amoskeag.' The District Court noted that respondents alleged no facts to support this contention and therefore found any such exception inapplicable. 353 F.Supp. 724, 727 n. 1 (1972). Respondents apparently did not renew this contention on appeal.
7
Similarly, as to the period before October 1964, Amoskeag seeks to recover for wrongs B&A and its shareholders did to themselves as owners of the railroad.
8
Conceding the lack of equity in any recovery by Amoskeag, the dissent argues that the present action can nevertheless be maintained because there are 20 minority shareholders, holding less than 1% of the BAR stock, who owned their shares 'during the period from 1960 through 1967 when the transactions underlying the railroad's complaint took place, and who still owned that stock in 1971 when the complaint was filed.' Post, at 722. The dissent would conclude that the existence of these innocent minority shareholders entitles BAR, and hence Amoskeag, to recover the entire $7,000,000 amount of alleged damages.
Aside from the illogic of such an approach, the dissent's position is at war with the precedents, for the Home Fire principle has long been applied to preclude full recovery by a corporation even where there are innocent minority shareholders who acquired their shares prior to the alleged wrongs. See cases cited at n. 5, supra, and accompanying text. The dissent also mistakes the factual posture of this case, since the respondent corporations did not institute this action for the benefit of the minority shareholders. See discussion at n. 15, infra.
9
In addition, the new Maine Business Corporation Act adopts the contemporaneous-ownership requirement for shareholder derivative actions. See Maine Rev.Stat.Ann., Tit. 13—A, § 627.1.A (1974). This provision apparently became effective two days after the present action was filed. As the District Court noted, it is an open question whether Maine in fact had a contemporaneous-ownership requirement prior to that time. 353 F.Supp., at 727. See R. Field, V. McKusick & L. Wroth, Maine Civil Practice § 23.2, p. 393 (2d ed. 1970). In the absence of any indication that Maine would not have followed the 'prevailing view,' the District Court determined that the contemporaneous-ownership requirement of Fed.Rule Civ.Proc. 23.1 applied.
10
The Court of Appeals noted that its decision 'is not conditioned on the devising of court-imposed limitations on the uses of any corporate recovery.' 482 F.2d 865, 871. Counsel for respondents also admitted at oral argument that BAR had no legal obligation to use its recovery to improve the railroad's services in order to benefit the public. Tr. of Oral Arg. 17.
11
The unjust enrichment of Amoskeag is inevitable. As the owner of more than 99% of the BAR shares, Amoskeag would obviously benefit from any increase in the value of its investment. Here, the increased value would be of dramatic proportions, with an influx of $7,000,000 into a railroad purchased for only $5,000,000. The dissent's suggestion that this substantial infusion of capital, if devoted to 'plant and equipment,' would not enhance 'earning capacity' or 'balance sheet strength' (post, at 725) will come as a surprise to regulatory bodies, railroad management, and investors.
Respondents have also conceded, both in their belief and at oral argument, that the present action could not be maintained if Amoskeag were the real party in interest, or alternatively, if only an unregulated private corporation were involved. Brief for Respondents, 28—29; Tr. of Oral Arg. 19—20.
12
The dissent's suggestion (post, at 723—724) that Amoskeag, a highly sophisticated investor, was defrauded in the purchase transaction and that it has suffered an injury is without support in the record. Not even Amoskeag has ever no asserted, in either the complaint or the briefs, or at oral argument. And in granting the motion for summary judgment, the District Court expressly observed that Amoskeag did not contend that it was defrauded in the purchase transaction. 353 F.Supp., at 726. This statement has since stood uncontroverted by Amoskeag. In short, prior to the dissent today, it has never been alleged or suggested that Amoskeag did not acquire exactly what it bargained for in this transaction.
13
The dissent makes much of the supposed public interest in railroads and power of a court of equity to ensure that the public will actually be benefited by any recovery. Post, at 724—725, 727 730. This argument disses the point. To begin with, the present action is, in substance, a typical derivative suit seeking an accounting from the previous controlling shareholder for various acts of corporate waste and mismanagement. It is settled law that the fiduciary duty owed by a controlling shareholder extends primarily to those who have a tangible interest in the corporation. Similarly, the recovery provided is intended to compensate, not the public generally, but those who have been injured as a result of a breach of a duty owed to them. In the present case, however, the actual beneficiary of any recovery, Amoskeag, has suffered neither an injury nor a breach of any legal duty. In short, Amoskeag has no cause of action.
The dissent argues that respondents' complaint is based on federal antitrust and securities statutes and that such laws are designed in part to benefit the public. With that much we agree. But the statutory design has not been effectuated through the indiscriminate provision of causes of action to every citizen. Rather, these statutes create specifically defined legal duties to particular plaintiffs and vest the appropriate causes of action in them alone. Here, the statutorily designated plaintiffs are respondent corporations. But, as we have stated, these plaintiffs cannot maintain the present action because a recovery by Amoskeag would violate established principles of equity.
14
As Dean Pound stated in reply to a similar argument in Home Fire:
'But it is said the defendant Barber, by reason of his delinquencies, is in no position to ask that the court look behind the corporation to the real and substantial parties in interest. . . . We do not think such a proposition can be maintained. It is not the function of courts of equity to administer punishment. When one person has wronged another in a matter within its jurisdiction, equity will spare no effort to redress the person injured, and will not suffer the wrongdoer to escape restitution to such person through any device or technicality. But this is because of its desire to right wrongs, not because of a desire to punish all wrongdoers. If a wrong-doer deserves to be punished, it does not follow that others are to be enriched at his expense by a court of equity. A plaintiff must recover on the strength of his own case, not on the weakness of the defendant's case. It is his right, not the defendant's wrong-doing, that is the basis of recovery. When it is disclosed that he has no standing in equity, the degree of wrong-doing of the defendant will not avail him.' 67 Neb., at 673, 93 N.W., at 1035.
15
Our decision rests on the conclusion that equitable principles preclude recovery by Amoskeag, the present owner of more than 99% of the BAR shares. The record does not reveal whether the minority shareholders who hold the remaining fraction of 1% of the BAR shares stand in the same position as Amoskeag. Some courts have adopted the concept of a pro-rata recovery where there are innocent minority shareholders. Under this procedure, damages are distributed to the minority shareholders individually on a proportional basis, even though the action is brought in the name of the corporation to enforce primary rights. See, e.g., Matthews v. Headley Chocolate Co., 130 Md. 523, 536—540, 100 A. 645, 650—652 (1971). In the present case, respondents have expressly disavowed any intent to obtain a pro-rata recovery on behalf of the 1% minority shareholders of BAR. We therefore do not reach the question whether such recovery would be appropriate.
The dissent asserts that the alleged acts of corporate mismanagement have placed BAR 'close to the brink of bankruptcy' and that the present action is maintained for the benefit of BAR's creditors. Post, at 2590—2591. With all respect, it appears that the dissent has sought to redraft respondents' complaint. As the District Court noted, respondents have not brought this action on behalf of any creditors. 353 F.Supp., at 726. Indeed, they have never so contended. Moreover, respondents have conceded that the financial health of the railroad is excellent. Tr. of Oral Arg. 18.
1
See generally 3 W. Fletcher, Cyclopedia Corporations § 1012 (1965). Indeed, the failure to exercise reasonable care to seek redress for wrongs done the corporation might well subject the directors to personal liability. See, e.g., Briggs v. Spaulding, 141 U.S. 132, 11 S.Ct. 924, 35 L.Ed. 662 (1891); Kavanaugh v. Commonwealth Trust Co. of New York, 223 N.Y. 103, 119 N.E. 237 (1918).
2
'(Stockholders' derivative suits) are one of the remedies which equity designed for those situations where the management through fraud, neglect of duty or other cause declines to take the proper and necessary steps to assert the rights which the corporation has.' Meyer v. Fleming, 327 U.S. 161, 167, 66 S.Ct. 382, 386, 90 L.Ed. 595 (1946). And it is irrelevant that the shareholders bringing the derivative action own only a small percentage of the total outstanding shares. See Ashwander v. TVA, 297 U.S. 288, 318, 56 S.Ct. 466, 469, 80 L.Ed. 688 (1936); Subin v. Goldsmith, 224 F.2d 753, 761 (CA2), cert. denied, 350 U.S. 883, 76 S.Ct. 136, 100 L.Ed. 779 (1955).
3
According to the complaint, there were 20 individual minority shareholders, many of whom acquired their shares in the 1950's, App. 6—7, 22—23.
4
It is interesting to note that the majority's restrictive notions as to the power of a court of equity to direct the application of a recovery are in conflict with the majority's own suggestion for protecting the interests of innocent minority shareholders. See ante, at 718 n. 15. If a court of equity lacks power to direct a corporation to apply the proceeds of a recovery in any particular fashion, how can the court direct the corporation to distribute a pro-rata recovery to some, but not all, of its shareholders?
5
The complaint alleges that the special and illegal dividends which petitioners caused BAR to declare 'served to deprive plaintiff BAR of a source of cash which could and would have been utilized for necessary maintenance and equipment acquisitions and replacements, all to the injury of BAR and the public which it serves.' App. 16.
6
These arguments are applicable as well to the causes of action stated under § 104 of the Maine Public Utilities Act, Maine Rev.Stat.Ann., Tit. 35, § 104 (1965), which provides in pertinent part:
'No public utility doing business in this State shall . . . make any contract or arrangement, providing for the furnishing of . . . services . . . with any corporation . . . owning in excess of 25% of the voting capital stock of such public utility . . . unless and until such contract or arrangement shall have been found by the commission not to be adverse to the public interest and shall have received their (sic) written approval.'
While different from § 10 of the Clayton Act in certain details (applying to all public utilities rather than only to carriers, and relying on the supervision of an administrative agency rather than the device of competitive bidding), the Maine statute clearly has the same underlying purpose: to protect the public interest from abuses of public utilities through intercorporate transactions with a major shareholder. While Maine law governs the causes of action under this section and the courts of Maine have, in other cases, accepted the general equitable principle that a stockholder has no standing to sue if he or his vendor participated in the wrong, see ante, at 714, there is no basis in Maine law for applying this equitable doctrine where the direct result is to leave remediless the very abuses § 104 was designed to prohibit.
| 78
|
41 L.Ed.2d 398
94 S.Ct. 2516
417 U.S. 673
CENTRAL TABLET MANUFACTURING CO., Petitioner,v.UNITED STATES.
No. 73—593.
Argued March 25—26, 1974.
Decided June 19, 1974.
Syllabus
When a fire destroys insured corporate property prior to the corporation's adoption of a complete plan of liquidation, but the fire insurance proceeds are received within 12 months after the plan's adoption, the gain realized from the excess of such proceeds over the corporate taxpayer's adjusted income tax basis in the insured property must be recognized and taxed to the corporation, and is not entitled to nonrecognition under § 337(a) of the Internal Revenue Code of 1954, which provides, with certain exceptions, for nonrecognition of gain or loss from a corporation's 'sale or exchange' of property that takes place during the 12-month period following the corporation's adoption of a plan for complete liquidation effectuated within that period. Pp. 677—691.
(a) The involuntary conversion by fire, recognized as a 'sale or exchange' under § 337(a), takes place when the fire occurs prior to the adoption of the liquidation plan, and not at some postplan point, such as the subsequent settement of the insurance claims or their payment, since the fire is the single irrevocable event that fixes the contractual obligation precipitating the transformation of the property, over which the corporation possesses all incidents of ownership, into a chose in action against the insurer. Pp. 685—683.
(b) Section 337(a) was enacted in order to eliminate technical and formalistic determinations as to the identity of the vendor, as between the liquidating corporation and its shareholders, and, therefore, the reasons for applying § 337(a) are not present in a situation where the conversion takes place prior to the adoption of the plan when there is no question as to the identity of the owner. Pp. 686—687.
481 F.2d 954, affirmed.
Larry H. Snyder, Columbus, Ohio, for petitioner.
Stuart A. Smith, Washington, D.C., for respondent.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
Section 337(a) of the Internal Revenue Code of 1954, 26 U.S.C. § 337(a),1 provides, with stated exceptions, for the nonrecognition of gain or loss from a corporation's 'sale or exchange' of property that takes place during the 12-month period following the corporation's adoption of a plan of complete liquidation that is effectuated within that period. The issue in this case is whether, when a fire destroys corporate property prior to the adoption of a plan of complete liquidation, but the fire insurance proceeds are received after the plan's adoption, the gain realized is or is not to be recognized to the corporation.
2
* The facts are not contested. Taxpayer, Central Tablet Manufacturing Company, an Ohio corporation, for many years prior to May 14, 1966, was engaged at Columbus, Ohio, in the manufacture and sale of writing tablets, school supplies, art materials, and related items. It filed its federal income tax returns on the accrual basis of accounting and for the fiscal year ended October 31.
3
On August 13, 1965, a majority of the taxpayer's production and maintenance employees went on strike. As a consequence, production was reduced to about 5% of normal volume. On September 10, during the strike, an accidental fire largely destroyed the taxpayer's plant, its manufacturing equipment and machinery, and its business offices. The damage was never repaired, the strike was never settled, and the taxpayer never again engaged in manufacturing.
4
At the time of the fire, the taxpayer carried fire and extended coverage insurance on its building, machinery, and inventory. It also carried business interruption insurance. Negotiations relating to the taxpayer's claim for business interruption loss began about October 8, 1965, and those on its claims for building and personal property losses began about November 1. There was dispute as to the estimated period of loss to be covered by the business interruption insurance; as to the probable duration of the strike had the fire not taken place; as to the applicability of the building policy's co-insurance clause; as to the extent of the equipment loss due to the fire rather than to rain; as to the value of the building and equipment at the time of the fire; and as to the cost of repair of repairable machinery and equipment. The threshold liability of the insurance carriers, however, despite their not unusual rejection of the initial formal proofs of claim, was never seriously questioned.
5
Eight months after the fire, at a special meeting on May 14, 1966, the shareholders of Central Tablet decided to dissolve the corporation and adopted a plan of dissolution and complete liquidation pursuant to Ohio Rev.Code Ann. § 1701.86 (1964). App. 38. About six days later, the taxpayer and the insurers settled the building claim; payment of that claim was received in mid-June. In August, the taxpayer settled its personal property claim and received payment on it in November. On May 3, 1967, all assets remaining after liquidating distributions to the shareholders were conveyed to a Columbus bank in trust for the shareholders pending the payment of taxes and the collection of remaining insurance and other claims. On the same date, the taxpayer filed a certificate of dissolution with the Ohio Secretary of State. Ohio Rev.Code Ann. §§ 1701.86(H) and (I) (1964). All this was accomplished within 12 months of the adoption of the plan on May 14, 1966.
6
The business interruption claim was settled in August 1967 and payment thereof was received in September of that year.
7
The fire insurance proceeds exceeded the taxpayer's adjusted income tax basis in the insured property. Gain, therefore, was realized and ordinarily would be recognized and taxed to the corporation. § 1033(a)(3) of the 1954 Code, 26 U.S.C. § 1033(a)(3); Tobias v. Commissioner, 40 T.C. 84, 95 (1963). The taxpayer, however, resorting to § 337(a), did not report this gain or any part of the business interruption insurance payment in its income tax returns for fiscal 1965 or for any other year. In January 1968, upon audit, the Internal Revenue Service asserted a deficiency in the taxpayer's income tax for fiscal 1965. This was attributable to the Service's inclusion in gross income for that year of (a) capital gain equal to the excess of the fire insurance proceeds over adjusted basis, (b) fiscal 1965's pro rata share of the business interruption insurance payment, and (c) an amount not at issue here. A deficiency in the taxpayer's fiscal 1963 tax was also asserted; this was attributable to a decrease in operating loss carryback from fiscal 1966 because of adjustments in the treatment of the insurance proceeds.2 The taxpayer paid the deficiencies, filed claims for refund, and, in due time, instituted the present action in federal court to recover the amounts so paid.
8
The District Court followed the decision in United States v. Morton, 387 F.2d 441 (CA8 1968), which concerned a taxpayer on the cash, rather than the accrual, basis, and held that § 337(a) was available to the taxpayer. 339 F.Supp. 1134 (SD Ohio 1972).3 Judgment for the taxpayer was entered. On appeal, the United States Court of Appeals for the Sixth Circuit, refusing to follow Morton, reversed and remanded. 481 F.2d 954 (1973). In view of the indicated conflict in the decisions of the Eighth and Sixth Circuits, we granted certiorari. 414 U.S. 1111, 94 S.Ct. 839, 38 L.Ed.2d 737 (1973).
II
9
The only issue before us is whether § 337(a) has application in a situation where, as here, the involuntary conversion occasioned by the fire preceded the adoption of the plan of complete liquidation.4 This depends upon whether the 'sale or exchange,' referred to in § 337(a), took place when the fire occurred or only at some postplan point, such as the subsequent settlement of the insurance claims, or their payment.
10
Stated simply, it is the position of the Government that the fire was a single destructive event that effected the conversion (and, therefore, the 'sale or exchange') prior to the adoption of the plan of liquidation, thereby rendering § 337(a) inapplicable. It is the position of the taxpayer, on the other hand, that the fire was not such a single destructive event at all, but was only the initial incident in a series of events—the fire; the preparation and filing of proofs of claim; their preliminary rejection; the negotiations; ultimate dollar agreement by way of settlement; the preparation and submission of final proofs of claim; their formal acceptance; and payment—that stretched over a period of time and came to a meaningful conclusion only after the adoption of the plan, and that, consequently, § 337(a) is applicable.
11
In order to keep this narrow issue in perspective, it is desirable and necessary to examine the background and the history of § 337.
12
A corporation is a taxable entity separate and distinct from its shareholders. Ordinarily, a capital gain realized by the corporation is taxable to it. The shareholders, of course, benefit by that realization of gain and the consequent increase in their corporation's assets. The value of their shares, in theory, is thereby enhanced. This increment in value, however, is not taxed at that point to the shareholder. His taxable transaction occurs when he disposes of his shares. The capital gain realized by the corporation, and taxed to it, may be said to be subject to a 'second' tax later, that is, when the shareholder disposes of his shares. There is nothing unusual about this. It is a reality of tax law, and it is due to the separateness of the corporation and the shareholder as taxable entities.
13
This 'double tax' possibility took on technical aspects, however, when the capital gain was realized at about the time of, or in connection with, a corporation's liquidation. If liquidation was deemed to have taken place subsequent to the sale or exchange, there was a 'second' tax to the shareholder in addition to the tax on the gain to the corporation. On the other hand, because a corporation itself realizes no gain for income tax purposes upon the mere liquidation and distribution of its assets to shareholders, § 311 of the 1954 Code, 26 U.S.C. § 311; see General Utilities Co. v. Helvering, 296 U.S. 200, 56 S.Ct. 185, 80 L.Ed. 154 (1935), if the liquidation was deemed to have preceded the sale or exchange of the asset, there was no 'first' tax to the corporation. Thus, the timing of the gain transaction, in relation to the corporation's liquidation, had important tax consequences. See generally B. Bittker & J. Eustice, Federal Income Taxation of Corporations and Shareholders 11—53 (3d ed. 1971). In short, before § 337 came into the Internal Revenue Code, the overall income tax burden for the liquidating corporate taxpayer and its shareholders was less if the corporation clearly made its distribution of assets prior to the sale or exchange of any of them at a gain.
14
All this seemed simple and straight-forward. The application of the rule, however, as fact situations varied, engendered profound confusion which was enhanced by two decisions by this Court approximately 25 years ago. In Commissioner v. Court Holding Co., 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981 (1945), the Court held that a liquidating corporation could not escape taxation on the gain realized from the sale of its sole asset if the corporation itself had arranged the sale prior to liquidation and distribution of the asset to the shareholders. This was so even though the sale was consummated after the distribution. Subsequently, in United States v. Cumberland Public Service Co., 338 U.S. 451, 70 S.Ct. 280, 94 L.Ed. 251 (1950), the Court reached exactly the opposite conclusion in a case where the shareholders, rather than the corporation, had negotiated the sale of the distributed assets and, prior to the corporation's liquidation, had been in touch with the purchaser and had offered to acquire the property and sell it to the purchaser. Mr. Justice Black, who wrote for a unanimous court in both cases, recognized that 'the distinction between sales by a corporation as compared with distribution in kind followed by shareholder sales may be particularly shadowy and artificial when the corporation is closely held,' id., at 454—455, 70 S.Ct., at 282, but the Court, nonetheless, determined that the distinction was mandated by the Code:
15
'The oddities in tax consequences that emerge from the tax provisions here controlling appear to be inherent in the present tax pattern. For a corporation is taxed if it sells all its physical properties and distributes the cash proceeds as liquidating dividends, yet is not taxed if that property is distributed in kind and is then sold by the shareholders. In both instances the interest of the shareholders in the business has been transferred to the purchaser. . . . Congress having determined that different tax consequences shall flow from different methods by which the shareholders of a closely held corporation may dispose of corporate property, we accept its mandate.' Id., at 455—456, 70 S.Ct. at 282.
16
These two cases obviously created a situation where the tax consequences were dependent upon the resolution of often indistinct facts as to whether the negotiations leading to the sale had been conducted by the corporation or by the shareholders. Particularly in the case of a closely held corporation, where there was little, if any, significant difference between management and ownership, this analytical formalism was unsatisfactory and, indeed, was a trap for the unwary. S.Rep.No.1622, 83d Cong., 2d Sess., 49 (1954); H.R.Rep.No.1337, 83d Cong., 2d Sess., A106 (1954). See Cary, The Effect of Taxation on Selling Out a Corporate Business for Cash, 45 Ill.L.Rev. 423 (1950).
17
It was in direct response to the Court Holding-Cumberland confusion and disparate treatment that Congress produced § 337 of the Internal Revenue Code of 1954. The report of the House Committee on Ways and Means on the bill (H.R. 8300) which became the 1954 Code explained the purpose of § 337:
18
'Your committee's bill eliminates questions arising as a result of the necessity of determining whether a corporation in process of liquidating made a sale of assets or whether the shareholder receiving the assets made the sale. Compare Commissioner v. Court Holding Company (324 U.S. 331, 65 S.Ct. 707 (89 L.Ed. 981), with U.S. v. Cumberland Public Service Company (338 U.S. 451, 70 S.Ct. 280 (94 L.Ed. 251)). This last decision indicates that if the distributee actually makes the sale after receipt of the property then there will be no tax on the sale at the corporate level. In order to eliminate questions resulting only from formalities, your committee has provided that if a corporation in process of liquidation sells assets there will be no tax at the corporate level, but any gain realized will be taxed to the distributee-shareholder, as ordinary income or capital gain depending on the character of the asset sold.' H.R.Rep.No.1337, 83d Cong., 2d Sess., 38—39 (1954), U.S.Code Cong. & Admin.News 1954, pp. 4025, 4064.
19
See also id., at A106—A109, where it was said, at A106: 'Your committee intends in section (337) to provide a definitive rule which will eliminate any uncertainty.' See S.Rep.No.1622, 83d Cong., 2d Sess., 48—49, 258—260 (1954), U.S.Code Cong. & Admin.News 1954, p. 4629.
20
There is nothing in the legislative history indicating that § 337 was enacted in order to eliminate 'double taxation' as such. Rather, the statute was designed to eliminate the formalistic distinctions recognized and perhaps encouraged by the decisions in Court Holding and Cumberland. See Kovey, When Will Section 337 Shield Fire Loss Proceeds? A Current Look at a Burning Issue, 39 J.Taxation 258, 259 n. 2 (1973); Note, Tax-Free Sales in Liquidation Under Section 337, 76 Harv.L.Rev. 780 (1963). See also West Street-Erie Boulevard Corp. v. United States, 411 F.2d 738, 740—741 (CA2 1969). The statute was meant to establish a strict but clear rule, with a specified time limitation, upon which planners might rely and which would serve to bring certainty and stability into the corporation liquidation area. The taxpayer here recognizes this statutory purpose. Brief for Petitioner 6—7; Tr. of Oral Arg. 3—4.
21
Inasmuch as § 337 was drafted to meet and deal with the Court Holding-Cumberland situation, where there had been a sale, the statute on its face relates only to 'the sale or exchange' of property. It is not surprising, therefore, that further confusion resulted when the Internal Revenue Service found itself confronted by liquidating corporate taxpayers who sought § 337(a) treatment for casualty gains. Following the Court's decision in Helvering v. William Flaccus Oak Leather Co., 313 U.S. 247, 61 S.Ct. 878, 85 L.Ed. 1310 (1941),5 the Internal Revenue Service at first refused to consider § 337 as applicable to a casualty situation at all. Rev.Rul. 56—372, 1956—2 Cum.Bull. 187. When this was rejected in the courts,6 the Service reversed its position and treated an involuntary conversion that occurred after adoption of a plan of complete liquidation as a 'sale or exchange' with resulting nonrecognition. Rev.Rul. 64—100, 1964—1 Cum.Bull. (Part i) 130.
22
It is at this point that the issue of the instant case emerges and comes into focus. Although it is now settled that an involuntary conversion by fire is a sale or exchange under § 337(a), the question that is determinative here remains unresolved: When does the involuntary conversion by a preplan fire take place? Since the statute prescribes a strict 12-month postplan period, it is crucial for the taxpayer that the conversion be deemed to have occurred after the plan of liquidation was adopted.
III
23
Predictably, the taxpayer analogizes the involuntary conversion to a true sale, and it argues that the convension does not occur until settlement is reached and the insurance obligations are finally determined and paid. This essentially is the reasoning employed in the Morton case.
24
There is nothing to indicate that Congress considered this problem when § 337(a) was adopted. The fact that attention was invariably focused on an actual sale would indicate that the casualty situation was not legislatively anticipated. Towanda Textiles, Inc. v. United States, 180 F.Supp. 373, 376, 149 Ct.Cl. 123, 129 (1960). Recourse to legislative history, therefore, is somewhat circumstantial in nature. There is, however, one guiding fact, namely, the above-mentioned clear purpose of Congress, in its enactment of § 337(a), to avoid the Court Holding-Cumberland formalities.
25
The taxpayer's analogy to the ordinary sale transaction has some superficial appeal. It fails, however, to give sufficient consideration to the underlying purpose of § 337(a). To be sure, under normal circumstances, a true sale is not complete until the mutual obligations (if not the precise terms) are fixed. The Internal Revenue Service has recognized this explicitly in the Regulations by making § 337(a) available where a sale is negotiated by the corporation prior to the adoption of the plan but is not completed until after the plan is adopted. Treas.Reg. § 1.337—2(a).7 This merely acknowledges that the parties are free to avoid an executory sales contract until it is made final. If the transaction is not completed until after the plan of liquidation is adopted, the corporation is rightfully entitled to § 337(a) treatment. This result is fully consistent with the aim of Congress to avoid the factual determination that led to the Court Holding-Cumberland dichotomy. The fact that the corporation and its shareholders are given this limited opportunity to plan, preliminary and prior to liquidation, for disposal of assets does not mean that the Congress intended to make this opportunity available in every conceivable fact situation.
26
With a fire loss, the obligation to pay arises upon the fire.8 Unlike an executory contract to sell, the casualty cannot be rescinded. Details, including even the basic question of liability, may be contested, but the fundamental contractual obligation that precipitates the transformation from tangible property into a chose in action consisting of a claim for insurance proceeds is fixed by the fire. Although the parties remain free to arrive at an acceptable settlement, the obligation itself has come into being, and it is the value of the insured property at that point that governs the claim. In other words, the terms of the obligation cannot be changed unilaterally by the insurer once the fire has occurred.
27
The fact that the ultimate extent of the gain may not be known or final settlement reached until some later time does not prevent the occurrence of a 'sale or exchange' even in the context of a normal commercial transaction. See, eG., Burnet v. Logan, 283 U.S. 404, 51 S.Ct. 550, 75 L.Ed. 1143 (1931). The taxpayer's efforts to draw an analogy to a true sale is therefore of limited utility. See Note, Involuntary Conversions and § 337 of the Internal Revenue Code, 31 Wash. & Lee L.Rev. 417, 427—428 (1974).
28
When the casualty occurs during the 12-month period after the plan of liquidation is adopted, § 337(a)'s applicability follows as a matter of course. The presence of § 337(a) creates an expectation in the liquidating corporation that it will not be taxed on gains from sales or exchanges of corporate assets during the 12-month period. The taxpayer corporation then need not be concerned with the formalities of sale and disposal in order to avoid tax on capital gains. Put another way, once the plan is adopted, corporate property is colored with the reasonable expectation that if it is sold or exchanged within 12 months, any resulting gain will not be taxed to the corporation. It follows that if, after the plan is adopted, property is destroyed by casualty, with consequent replacement by insurance proceeds, § 337(a) treatment is available. The property colored by the expectation has been replaced by insurance proceeds.
29
When, however, the casualty occurs prior to the adoption of the plan and the corporation's commitment to liquidate, none of these considerations attaches. Moreover, there is nothing in the purpose of § 337 which dictates the extension of its benefits to this preplan situation. Before the adoption of the plan the corporation has no expectation of avoiding tax if it disposes of property at a gain. The corporation, of course, is the beneficiary of the insurance, and both at the time the policy is executed and at the time of the fire, the destroyed property is an asset of the corporation. Prior to the adoption of the plan, § 337(a)'s 'expectation' simply is not present. For all practical purposes, the disposal of Central Tablet's insured property occurred at the time of its fire. At that time the taxpayer possessed all incidents of ownership. It had evidenced no intention to liquidate. The fire was irremediable. Regardless of the formalities and negotiations that prefaced the actual insurance settlements, the property was parted with at the time of its destruction. When the casualty occurs prior to the corporation's committing itself to liquidation, no Court Holding-Cumberland problem is presented.
IV
30
This interpretation is fully consistent with the manner in which condemnation, the other principal form of involuntary conversion, is treated under § 337. In condemnation, the legally operative event for purposes of the statute is the passage of title under federal or state law, as the case may be, to the condemning authority. This means that in many jurisdictions the 'sale or exchange' under § 337(a) occurs prior to the determination of the amount of condemnation compensation and, indeed, possibly without advance warning to the corporation owner. Rev.Rul. 59—108, 1959—1 Cum.Bull. 72. It has been uniformly recognized that a corporate taxpayer may not avail itself of § 337(a) where its plan of liquidation is adopted after title has passed by way of condemnation even where no settlement as to condemnation price has been reached or where the corporation had no advance notice of the proposed taking. Covered Wagon, Inc. v. Commissioner, 369 F.2d 629, 633—635 (CA8 1966); Likins-Foster Honolulu Corp. v. Commissioner, 417 F.2d 285 (CA10 1969), cert. denied, 397 U.S. 987, 90 S.Ct. 1117, 25 L.Ed.2d 395 (1970); Dwight v. United States, 328 F.2d 973 (CA2 1964); Wendell v. Commissioner, 326 F.2d 600 (CA2 1964). The taxpayer's position here would favor the casualty taxpayer over the condemnation taxpayer.
31
Although perhaps not an exact parallel, the one date in the casualty loss situation analogous to the passage of title in the condemnation context is the date of the casualty. The fire is the event which fixes the legal obligation to pay the insurance proceeds. As with a nonqualifying preplan condemnation, the fire is the single irrevocable event of significance, and it occurs when title and control over the property are in the corporation. The chose in action against the insurer arises at that time. This is unlike the executory sales contract consummated after the adoption of a plan; there, either of the parties is free unilaterally to avoid whatever preliminary agreement had been reached at the preliquidation negotiations. As with condemnation, the involuntary character of the fire distinguishes it from the normal sale, and, as with condemnation, for purposes of § 337(a), it is irrelevant that the precise dollar amount of the insurer's obligation remains uncertain. In the casualty situation, the owner of the insured property is deprived of aspects of ownership when the fire occurs in much the same way as the owner of condemned property is deprived at the time title passes. In each case the triggering event is involuntary and irrevocable. Because of the statutorily imposed chronology, the event operates to prevent the corporation's receiving the favorable treatment of § 337(a). As the Court Holding decision exemplifies, 'This may appear a harsh result, but if it is to be corrected Congress must act; the courts have no power to do so.' Dwight v. United States, 328 F.2d, at 974.
V
32
Again, although not precisely parallel and certainly not controlling, concluding that the 'sale or exchange' takes place at the time of the fire is consistent with the accepted method for determining the holding period of destroyed property in the ascertainment of its long- or short-term capital gain or loss consequences. Where property is destroyed, the holding period terminates at the moment of destruction. Rose v. United States, 229 F.Supp. 298 (SD Cal.1964); Steele v. United States, 52—2 U.S. Tax Cas. 9451 (SD Fla.1952); see Draper v. Commissioner, 32 T.C. 545, 548—549 (1959). Cf. Comment, Extending Section 337 to Liquidations Triggered by the Involuntary Conversion of Corporate Assets, 62 Geo.L.J. 1203, 1213 n. 55 (1974). Were we to accept the taxpayer's argument, we would be left with the anomalous situation of having the 'sale' take place after the holding period has terminated for capital gain or loss purposes.
VI
33
The situation presented by the instant case has been brought to the attention of Congress with the suggestion that the nonrecognition treatment provided by § 337(a) be extended to preplan involuntary conversions.9 Congress, however, has not acted on this suggestion. It, of course, has provided some tax relief to the victim of a casualty gain by permitting nonrecognition of the gain if the victim-taxpayer uses the proceeds to replace the destroyed property in a specified manner. § 1033(a)(3) of the 1954 Code, 26 U.S.C. § 1033(a)(3). But Congress has never disclosed an intention to permit the corporate victim of a casualty with ensuing gain to have the option of liquidating after the casualty occurs and obtaining the benefit of nonrecognition under § 337(a). If this is desirable policy, it is for the Congress, not the courts, to effectuate. The fact that a tax-oriented and tax-knowledgeable corporation in theory could utilize § 1033(a)(3) and rebuild with its insurance proceeds without being taxed for the gain, and then adopt a plan of liquidation, surely does not change the result. Tax consequences follow what has taken place, not what might have taken place. Commissioner v. National Alfalfa Dehydrating & Milling Co., 417 U.S. 134, 148—149, 94 S.Ct. 2129, 2137, 40 L.Ed.2d 717 (1974).
34
Had Congress enacted § 337 for the avowed purpose of freeing a corporation from tax on gains whenever it decides to liquidate, the result here might well be different. Section 337, however, was not designed to accomplish that broad result. As has been noted, § 337 was designed for the limited purpose of avoiding the technical and formalistic determination of control as between the corporation and the shareholders. By the enactment of § 337(a), the benefit of any existing doubt in that context was given to the corporate taxpayer. But § 337(a) is narrowly and specifically drawn. It applies only to a complete liquidation and then only to one fully accomplished in a specified short time. It has no application to a sale or exchange before the adoption of the plan or to one more than 12 months after the adoption. If the statute's precise conditions are not fulfilled, the tax consequences that normally prevail will ensue. Indeed, the statute is not always beneficial, for it operates to make a loss as well as a gain on the sale or exchange nonrecognizable.
35
The judgment of the Court of Appeals is affirmed.
36
It is so ordered.
37
Affirmed.
38
Mr. Justice WHITE, with whom Mr. Justice DOUGLAS, Mr. Justice BRENNAN, and Mr. Justice POWELL join, dissenting.
39
Ordinarily, gain from the sale of corporate property is taxed to the corporation. Under 26 U.S.C. § 337, however, gain from a sale or exchange occurring within 12 months after the adoption of a poan of liquidation is not recognized or taxed to the corporation. Concededly, the section applies to gain from involuntary conversions such as fire losses compensated by insurance, as long as the event qualifying as the sale or exchange takes place after, rather than before, the adoption of a plan of liquidation. As the Court indicates, the sole issue in this case is when the sale or exchange occurred.
40
Here, the fire took place on September 10, 1965. The plan of liquidation was not adopted until May 14, 1966. But the destroyed property was insured, and the insurance claims were finally negotiated, settled, and paid after May 14, 1966. The Court holds that the sale or exchange took place at the time of the fire; for in its view, it was the fire that transformed 'tangible property into a chose in action consisting of a claim for insurance proceeds . . ..' Ante, p. 685.
41
I disagree. That the fire gave the company a claim under its insurance policies does not mean that the involuntary conversion qualifying as a sale or exchange took place at that moment. It is my view that such a claim does not ripen into a sale or exchange until it has attained a sufficiently definite quality and value to require the gain or loss to be accrued on the books of an accrualbasis taxpayer. It is plain enough for me that no gain was accruable by Central Tablet until after May 14, 1966, and that the sale or exchange therefore took place after rather than before the adoption of the liquidation plan.
42
The general rule is that '(t)here shall be allowed as a deduction any loss sustained during the taxable year and not compensated for by insurance or otherwise.' 26 U.S.C. § 165(a). Without doubt, had there not been insurance in this case, Central Tablet would have suffered a deductible loss from the fire and that deduction would have been taken in the year the fire occurred. The ordinary rule also is, however, that deductible losses must be evidenced by closed and completed transactions and fixed by identifiable events. Boehm v. Commissioner, 326 U.S. 287,291, 66 S.Ct. 120, 123, 90 L.Ed. 78 (1945). In the context of an insured fire loss, where recovery of insurance is uncertain or unrealistic the loss is to to be taken in the year it occurs. Coastal Terminals, Inc. v. Commissioner, 25 T.C. 1053 (1956); Cahn v. Commissioner, 92 F.2d 674 (CA9 1937). But if there is a fair prospect of recovering insurance proceeds, the loss is to be postponed until the question of recovery is sufficiently settled. Commissioner v. Harwick, 184 F.2d 835 (CA5 1950); Boston & M.R. Co. v. Commissioner, 206 F.2d 617 (CA1 1953); Jeffrey v. Commissioner, 12 T.C.M. 534 (1953).1
43
Similar principles apply to determine when an accrual-basis taxpayer realizes income when an insured fire loss results in taxable gain. Under general principles of accrual accounting, two conditions must be met for income to be accrued in a given taxable year: the taxpayer must have a clear right to the income, and the quantum of the income must be ascertainable within reasonable limits. United States v. Anderson, 269 U.S. 422, 441, 46 S.Ct. 131, 134, 70 L.Ed. 347 (1926); Continental Tie & Lumber Co. v. United States, 286 U.S. 290, 297, 52 S.Ct. 529, 531, 76 L.Ed. 1111 (1932); Dixie Pine Co. v. Commissioner, 320 U.S. 516, 519, 64 S.Ct. 364, 365, 88 L.Ed. 270 (1944). 'It has long been held that in order truly to reflect the income of a given year, all the events must occur in that year which fix the amount and the fact of the taxpayer's liability. . . .' Ibid. These twin conditions have been formalized by Treas.Reg. § 1.451—1(a), which provides in relevant part:
44
'Under an accrual method of accounting, income is includable in gross income when all the events have occurred which fix the right to receive such income and the amount thereof can be determined with reasonable accuracy. . . .'
45
These are the governing principles when the issue is whether income from certain insurance policies covering business or personal loss had accrued to the taxpayer. Thus, where an insurance company does not admit liability in the year of the loss, or takes a position in negotiations which makes it quite uncertain whether the bulk of the claim will be recoverable, accrual is improper.2 Although it may generally be true that taxpayers seek to delay reporting income, this may not be so when there are large losses in the year of the conversion to absorb the insurance income. In that situation, the Commissioner may advocate that accrual in the year of the loss is improper. See E. T. Slider, Inc. v. Commissioner, 5 T.C. 263 (1945) (accrual improper in year of loss because collectibility of insurance proceeds doubtful). The principles of accrual accounting are designed to be neutral, so that the taxpayer may not time his gains and losses in inconsistent fashion to minimize his tax liability.
46
If normal accrual-accounting principles were to be applied in this case, it is clear that whatever the date on which income accrued to the corporation, it would not be the date of the fire, as the Court of Appeals held. At least some period of time, however short, must be allowed for the taxpayer to determine the extent of loss and to file a timely proof-of-loss form with the insurer. Cf. Thalhimer Bros. v. Commissioner, 27 T.C. 733 (1957). The question then becomes whether the amount should have accrued prior to or during the 12-month period beginning on May 14, 1966, the date on which the liquidation plan was adopted. This is largely a factual question, depending on whether liability was acknowledged, and whether the amount of liability was reasonably ascertainable before or after the adoption of the plan.
47
As to the issue of liability, there was some disagreement between the District Court and the Court of Appeals. The District Court found that '(a)t no time was an express admission of liability made by taxpayer's insurance adjusters. Indeed, there is some evidence in the record that the insurance companies denied that notice of claim was properly given.' 339 F.Supp. 1134, 1139. The District Court further found that even if liability had been admitted at some point, there was insufficient evidence in the record to determine at what point that admission occurred, even though that subject had been explored at trial. The Court of Appeals, on the other hand, believed that 'the insurance carrier questioned neither the validity of the insurance contracts nor the fulfillment of the conditions for payment thereunder . . ..' 481 F.2d 954, 956.
48
However, even accepting the view of the Court of Appeals that liability was not at issue, both courts found that the amount of liability was subject to dispute and negotiation. A number of issues divided the parties throughout the negotiations on the extent of coverage. Negotiations of Central Tablet's claim for business-interruption loss began on approximately October 8, 1965. Disputes subsequently arose over the estimated period of loss to be covered and the probable duration of the strike had there not been a fire, for the purpose of determining the 'actual loss sustained.' No settlement on this claim was negotiated until August 25, 1967, and, on or about September 22, 1967, petitioner received payment of $67,000, as compared with the maximum of $200,000 available under the two policies, which represented petitioner's initial request in the negotiations.
49
Negotiation of the building, machinery, and personal property loss claims began on approximately November 1, 1965. On the building insurance policies, dispute focused on a co-insurance clause.3 The District Court found that the questions over the applicability of the clause would reduce petitioner's coverage by 43% if the insurance companies prevailed. The parties also disagreed as to the extent of building loss and the value of the building at the time of the loss. Central Tablet accepted a settlement of its claim on approximately May 20, 1966, and, on June 15, 1966, received $174,595.05 in payment, as compared with the $225,000 stated maximum.
50
Finally, as to the personal property policy, dispute focused on the value of machinery and equipment and the cost of repair of repairable machinery and equipment. On approximately August 25, 1966, Central Tablet accepted a $104,609.27 settlement on this claim, as compared with the $450,000 stated maximum.
51
The District Court stated that these negotiations were 'exceedingly complex and difficult,' and '(i)n each case, substantial discrepancies existed between the initial offers made by the insurance companies, the maximum permissible coverage, and the amounts ultimately negotiated.' 339 F.Supp., at 1139. Due to the factual record before it, the District Court concluded that the insurance proceeds did not accrue until after the plan had been adopted. The court stated that 'it would be an utter fiction for us to conclude that the taxpayer realized fixed and estimable income before it adopted a plan of liquidation. . . .' Ibid. The Court of Appeals also recognized that there was a dispute over the amount to be paid under each policy. The factual findings of the District Court were consistent with the well-settled rule that accrual is only required when the quantum of income is ascertainable within reasonable limits. On the two insurance policies at issue here, the amounts received, $174,000 on the building policy and $104,000 on the personal property policy, compared with stated maximums of $225,000 and $450,000, respectively. These discrepancies bolster the District Court's conclusion that there were substantial disagreements between the parties.
52
The general rule is that '(t)axable income shall be computed under the method of accounting on the basis of which the taxpayer regularly computes his income in keeping his books.' 26 U.S.C. § 446. Central Tablet was an accrual-basis taxpayer, and it is clear that the amount of the insurance proceeds was not ascertainable with reasonable certainty until after May 14, 1966. No gain was accruable prior to that date, and the District Court was clearly right in holding that there has been no involuntary conversion and no sale or exchange prior to the adoption of the plan of liquidation. Absent the insurance policy, there could have been only a casualty loss, no 'involuntary conversion' and no 'sale or exchange.' And with the various insurance policies owned by the taxpayer, the conversion into cash in an amount reasonably ascertainable did not become sufficiently predictable until after May 14, 1966.
53
To me, the Government's position in this case is anomalous. Although in arguing that the 'sale or exchange' must be deemed to have occurred on the date of the fire, it was suggested by the Government in the Court of Appeals that if the issue were decided in favor of the Government, then a remand would be in order to determine in which year the gain was taxable. The Court of Appeals, whose judgment is now affirmed, followed this suggestion and remanded the case to the District Court. It is thus possible that the District Court, having already once concluded that the gain was not realized until the period of liquidation had begun in 1966, will reach the same conclusion on remand; but the gain under the Court's holding will nonetheless be taxable to the corporation. This seems a very odd result, for if insufficient events occurred in 1965 to warrant the accrual of gain by an accrual-basis taxpayer, it is incongruous to hold that an involuntary conversion based on the collectibility of insurance proceeds nevertheless occurred at the time of the fire. In the context of the compensated fire loss, the time of realizing gain is the more realistic criterion of when the sale or exchange takes place within the meaning of § 337.
54
The statute does not tell us when an involuntary conversion qualifying as a sale or exchange must be deemed to have taken place. It provides sufficient flexibility so that in ordinary liquidations, sales or exchanges may be negotiated and all but completed by the corporation before the plan is adopted. It is contemplated that the corporate taxpayer may plan the liquidation and the timing of gains and losses from liquidating sales and exchanges. I perceive no reason why Congress would treat those whom accident forces to convert their property into cash any less favorably than those who have total control of whether a sale is to be made at all. If a compensated fire loss qualifies as a sale or exchange, as the Government concedes it does, it appears perfectly consistent with the terms as well as the purpose of § 337 to hold that the qualifying event occurs when the gain is realized and must be accrued. This would place those who are forced to liquidate on a par with those who chose to liquidate and to realize gains without paying the corporate tax.
55
The Commissioner argues, however, that there is an analogy between the treatment of condemnation 'conversions' and losses by accidents. He would apply to compensated fire losses the uniform rule of the courts of appeals that a corporation is not entitled to the benefits of § 337 when property is condemned prior to the adoption of a liquidation plan. Wendell v. Commissioner, 326 F.2d 600 (CA2 1954); Dwight v. United States, 328 F.2d 973 (CA2 1964); Covered Wagon, Inc. v. Commissioner, 369 F.2d 629 (CA8 1966); Likins-Foster Honolulu Corp. v. Commissioner, 417 F.2d 285 (CA10 1969). The rule in condemnation cases, however, is not directly at odds with accrual-accounting principles. Recognition of income is required at the time of a taking which transfers title to the property and creates an immediate obligation upon the condemning authority to pay just compensation. Rev.Rul. 59—108, 1959—1 Cum.Bull. 72. At the time the Government takes title to the property, it offers to pay a certain amount, thereby fixing its liability in a reasonably ascertainable amount. Under federal law, when the United States condemns property, it files its Declaration of Taking and deposits the amount of estimated compensation for the property in court. Covered Wagon, Inc., supra, at 634. The taking vests title in the Government, the condemnee is deprived of his property, and he is certain to recover at least the fair market value estimated by the Government.4
56
This is not the case here. The fire is an irrevocable event and except for the insurance, it would represent a loss immediately accruable. But with insurance coverage, there may be a gain, the amount of which may or may not be reasonably ascertainable, either then or within a short time; and until it is ascertainable, normal rules of accrual accounting would not require any gain to be recognized; and until that occurs the transaction has not sufficiently congealed to qualify as a sale or exchange.
57
I add a final note. The controlling Treasury Regulations under § 337 provide considerable flexibility to the parties in liquidation situations. Indeed, Treas.Reg. § 1.337—1 provides that 'sales may be made before the adoption of the plan of liquidation if made on the same day such plan is adopted.' (Emphasis added.) Thus, even under the Court's view that the sale or exchange occurs at the time of the fire, § 337 would be available to the property owner if it were sufficiently aware and took sufficient pains to plan in advance to comply with the Regulation or was a closely held corporation that could adopt its liquidation plan before the day of the fire was over. Other taxpayers not so inclined or so circumstanced to provide for contingencies would be foreclosed. Section 337 would remain a trap for the unwary, the precise situation Congress sought to avoid.
1
'§ 337. Gain or loss on sales or exchanges in connection with certain liquidations.
'(a) General rule.
'If—
'(1) a corporation adopts a plan of complete liquidation on or after June 22, 1954, and
'(2) within the 12-month period beginning on the date of the adoption of such plan, all of the assets of the corporation are distributed in complete liquidation, less assets retained to meet claims.
'then no gain or loss shall be recognized to such corporation from the sale or exchange by it of property within such 12-month period.' 26 U.S.C. § 337(a).
2
The deficiencies, including interest, amounted to $70,051.30 for fiscal 1965 and $11,930.30 for fiscal 1963.
3
Kinney v. United States, 73—1 U.S.Tax Cas. 9140 (ND Cal.1972), decided before the Sixth Circuit's ruling in the present case, and now on appeal to the Ninth Circuit, also followed Morton. The corporate taxpayer in Kinney was on the accrual basis.
4
Because the District Court ruled that § 337(a) had application to Central Tablet's situation, there was no occasion for it to determine in what taxable year the gain to the corporation accrued if it were ultimately decided that § 337(a) was not applicable. That question remains for resolution upon remand. We intimate no view as to that issue. See generally 2 J. Mertens, Law of Federal Income Taxation § 12.65 and p. 236 (Malone rev. 1967).
5
In Flaccus the Court held that fire insurance proceeds did not result in gain from a 'sale or exchange' of capital assets within the meaning of § 117(d) of the Revenue Act of 1934, 48 Stat. 715. This result was overcome statutorily by the enactment of § 151(b) of the Revenue Act of 1942, 56 Stat. 846, now carried over into § 1231(a) of the 1954 Code, 26 U.S.C. § 1231(a).
6
Towanda Textiles, Inc. v. United States, 180 F.Supp. 373, 149 Ct.Cl. 123 (1960); Kent Mfg. Corp. v. Commissioner, 288 F.2d 812 (CA4 1961). In each of these cases the court relied upon the Flaccus-inspired statutory amendment, referred to in the preceding footnote, for its conclusion that an involuntary conversion was covered by § 337(a). In Towanda the Court of Claims permitted § 337(a) treatment where both the fire and the settlement occurred during the 12-month period following the adoption of the plan of liquidation. It observed, 'It is not conceivable that Congress would have drawn a distinction between a gain from a voluntary conversion and an involuntary one, had the possibility of an involuntary conversion during liquidation come to its attention' (emphasis supplied). 180 F.Supp., at 376, 149 Ct.Cl., at 129. In Kent, the Fourth Circuit disallowed § 337(a) treatment where both the fire and the settlement took place prior to the adoption of a plan of liquidation. 288 F.2d, at 816. (It upheld that taxpayer's argument, however, that the casualty gain there sustained was entitled to nonrecognition specially provided under § 392(b) of the 1954 Code.) Neither case presented the factual sequence of the case before us.
7
The Regulations make the date of the sale dependent 'primarily upon the intent of the parties to be gathered from the terms of the contract and the surrounding circumstances.' § 1.337 2(a). They provide that an 'executory contract to sell is to be distinguished from a contract of sale.' This distinction recognizes the significance of the point in time where the parties can no longer opt out of a transaction. Certainly, a fire insurer has no right to opt out of its coverage and basic liability after the fire takes place; in this respect, the executory contract situation referred to in the Regulations is distinguishable.
8
For tax purposes, the formality of filing a proof of claim usually does not change the substance of this conclusion. In any event, the formalities were observed here. The insurer's adjuster was in attendance even while the fire was in progress. App. 42. Notice was immediately given the insurance companies and proofs of loss were promptly submitted. Id., at 13—14. Negotiations began within a month. The adjusters, in making the not uncommon rejection of initial proofs of claim, denied the extent, but hardly the fact, of coverage. Id., at 14—15.
9
In 1959 the Advisory Group made the following recommendation to the House Committee on Ways and Means:
'The advisory group considers it appropriate and desirable to extend the nonrecognition treatment provided by section 337(a) to all involuntary conversions. Since an involuntary conversion cannot be foreseen and it is impractical to require adoption of the liquidation plan on or before the day of the conversion, it is proposed, as to such conversions, to relax the strict requirements of the section with respect to the time of adoption of the liquidation plan. Since the time of receipt of the proceeds of an involuntary conversion may depend on factors beyond the control of the corporation and receipt within a 12-month period is often impossible, it is proposed also to relax the distribution requirements with respect to such conversions. Accordingly, it is recommended that an involuntary conversion within the meaning of section 1033 be considered a sale or exchange for purposes of section 337, and that the requirements of paragraph (1)(B) regarding the time of distribution, and the requirement of paragraph (1) that the sale or exchange occur within the 12-month period referred to therein, be considered satisfied if such 12-month period begins not later than 60 days after the disposition of the converted property, as defined in section 1033(a)(2), and the proceeds of the conversion are distributed within such 12-month period or within 60 days after the receipt thereof by the corporation, whichever is latter.' Hearings on Advisory Group Recommendations on Subchapters C, J, and K of the Internal Revenue Code before the House Committee on Ways and Means, 86th Cong., 1st Sess., 532 (1959). It is true that this recommendation was made before the Internal Revenue Service had recognized a casualty as a 'sale or exchange,' within the language of § 337(a), and that the Service has adopted at least part of the recommendation without congressional action. Nonetheless, the Advisory Group clearly recognized that even if the involuntary conversion were a 'sale or exchange.' § 337(a) did not reach the conversion that occurred prior to the adoption of the plan of liquidation, and it proposed 'to relax the strict requirements of the section' with respect thereto.
1
Treas.Reg. §§ 1.165—1(d)(1) and (2) provide:
'(d) Year of deduction. (1) A loss shall be allowed as a deduction under section 165(a) only for the taxable year in which the loss is sustained. For this purpose, a loss shall be treated as sustained during the taxable year in which the loss occurs as evidenced by closed and completed transactions and as fixed by identifiable events occurring in such taxable year. For provisions relating to situations where a loss attributable to a disaster will be treated as sustained in the taxable year immediately preceding the taxable year in which the disaster actually occurred, see section 165(h) and § 1.165—11.
'(2)(i) If a casualty or other event occurs which may result in a loss and, in the year of such casualty or event, there exists a claim for reimbursement with respect to which there is a reasonable prospect of recovery, no portion of the loss with respect to which reimbursement may be received is sustained, for purposes of section 165, until it can be ascertained with reasonable certainty whether or not such reimbursement will be received. Whether a reasonable prospect of recovery exists with respect to a claim for reimbursement of a loss is a question of fact to be determined upon an examination of all facts and circumstances. Whether or not such reimbursement will be received may be ascertained with reasonable certainty, for example, by a settlement of the claim, by an adjudication of the claim, or by an abandonment of the claim. When a taxpayer claims that the taxable year in which a loss is sustained is fixed by his abandonment of the claim for reimbursement, he must be able to produce objective evidence of his having abandoned the claim, such as the execution of a release.
'(ii) If in the year of the casualty or other event a portion of the loss is not covered by a claim for reimbursement with respect to
which there is a reasonable prospect of recovery, then such portion of the loss is sustained during the taxable year in which the casualty or other event occurs. For example, if property having an adjusted basis of $10,000 is completely destroyed by fire in 1961, and if the taxpayer's only claim for reimbursement consists of an insurance claim for $8,000 which is settled in 1962, the taxpayer sustains a loss of $2,000 in 1961. However, if the taxpayer's automobile is completely destroyed in 1961 as a result of the negligence of another person and there exists a reasonable prospect of recovery on a claim for the full value of the automobile against such person, the taxpayer does not sustain any loss until the taxable year in which the claim is adjudicated or otherwise settled. If the automobile had an adjusted basis of $5,000 and the taxpayer secures a judgment of $4,000 in 1962, $1,000 is deductible for the taxable year 1962. If in 1963 it becomes reasonably certain that only $3,500 can ever be collected on such judgment, $500 is deductible for the taxable year 1963.
'(iii) If the taxpayer deducted a loss in accordance with the provisions of this paragraph and in a subsequent taxable year receives reimbursement for such loss, he does not recompute the tax for the taxable year in which the deduction was taken but includes the amount of such reimbursement in his gross income for the taxable year in which received, subject to the provisions of section 111, relating to recovery of amounts previously deducted.'
2
Maryland Shipbuilding & Drydock Co. v. United States, 409 F.2d 1363, 187 Ct.Cl. 523 (1969) (accrual not required because extent of liability contested by insurance company in negotiations not completed in taxable year); Cappel House Furnishing Co. v. United States, 244 F.2d 525 (CA6 1957) (liability and approximate amount determined in year of fire because of unreasonable delay of taxpayer in presenting claim, and liability was both clear and could be approximated); Georgia Carolina Chemical Co. v. Commissioner, 3 T.C.M. 1213 (1944) (extent of liability not fixed in year of loss because of uncertainty as to whether co-insurance clause, which would reduce coverage, would be invoked by insurance company); Luckenbach S.S. Co. v. Commissioner, 9 T.C. 662 (1947) (amount of recovery on war risk insurance uncertain in years of loss because of controversy between War Shipping Administration and Comptroller General); Rite-Way Products v. Commissioner, 12 T.C. 475 (1949) (extent and amount of liability of insurance company known in year of loss); Thalhimer Bros. v. Commissioner, 27 T.C. 733 (1957) (where fire occurred six days prior to completion of tax year, insurance proceeds did not accrue because extent of damage still uncertain); Curtis Electro Lighting v. Commissioner, 60 T.C. 633 (1973) (accrual not required because insurance company had never admitted to liability in any amount in taxable year); Kurtz v. Commissioner, 8 B.T.A. 679 (1927) (accrual required where insurance company had admitted liability and conceded bulk of loss claimed by taxpayer in year of loss).
3
This is formally termed a replacement-cost-endorsement co-insurance clause. The insurance adjuster explained at trial that a replacement-cost endorsement is bought by the insured to cover, in the event of compensable loss, the replacement cost of lost property. The co-insurance clause requires that the insured carry coverage up to a sufficient limit so that the premiums will justify the coverage. He additionally explained that, if the premiums are determined not to justify the actual replacement cost, coverage is reduced.
4
The Commissioner also seeks to analogize this case to those dealing with computing of the holding period of lost or destroyed property in connection with measuring whether the gain from the sale of a capital asset is taxable as short-term or long-term capital gain or ordinary income. See Rose v. United States, 229 F.Supp. 298, 300 (S.D.Cal.1964); Steele v. United States, 52—2 U.S.Tax Cas. 9451 (S.D.Fla.1952). In Rose, which dealt with involuntary conversion in 1960, the holding period of the asset was found to terminate when the ship involved was lost at sea, rather than when insurance proceeds were received. The test for the dating of the end of the holding peiod is when the benefits or burdens of ownership are transferred or when title passes, whichever occurs first. See Comment, Extending Section 337 to Liquidations Triggered by the Involuntary Conversion of Corporate Assets, 62 Geo.L.J. 1203, 1213 n. 55 (1974). In Rose, when the ship was lost the owners totally abandoned it and gave all rights to salvage income to the insurer. Thus, all rights of ownership were relinquished at the time of the loss. The case does not relate to the timing of the receipt of income, as does the instant case, but only to the period of time a capital asset is held. The parties in Rose did not dispute that the gain, whether it was short-term or long-term, as determined by the holding period, was to be recognized in 1960. This was largely because it appears that all relevant events occurred in that year; the loss, admission of liability, and settlement.
In Steele, there was also no dispute as to the timing of recognition. The taxpayer, reporting on a cash basis, received insurance in 1944 for the loss which occurred in 1943. The Commissioner asserted a deficiency for 1944. Even though the court held that there was not a 6-month holding period, so that the gain was ordinary income, it was still incurred in 1944, the date of the receipt of insurance proceeds, and not in 1943, the date of the loss of the vessel.
| 1112
|
41 L.Ed.2d 374
94 S.Ct. 2431
417 U.S. 642
Henry A. KOKOSZKA, Petitioner,v.Richard BELFORD, Trustee, etc.
No. 73—5265.
Argued April 22, 1974.
Decided June 19, 1974.
Rehearing Denied Oct. 15, 1974.
See 419 U.S. 886, 95 S.Ct. 160.
Syllabus
1. An income tax refund is 'property' that passes to the trustee under § 70a(5) of the Bankruptcy Act, being 'sufficiently rooted in the bankruptcy past,' and not being related conceptually to or the equivalent of future wages for the purpose of giving the bankrupt wage earner a 'fresh start.' Lines v. Frederick, 400 U.S. 18, 91 S.Ct. 113, 27 L.Ed.2d 124, distinguished. Pp. 645—648.
2. The provision in the Consumer Credit Protection Act limiting wage garnishment to no more than 25% of a person's aggregate 'disposable earnings' for any pay period does not apply to a tax refund, since the statutory terms 'earnings' and 'disposable earnings' are confined to periodic payments of compensation and do not pertain to every asset that is traceable in some way to such compensation. Hence, the Act does not limit the bankruptcy trustee's right to treat the tax refund as property of the bankrupt's estate. Pp. 648—652.
2 Cir., 479 F.2d 990, affirmed.
Thomas R. Adams for petitioner.
Benjamin R. Civiletti, as amicus curiae, in support of judgment below, by invitation of the Court.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari in this case, 414 U.S. 1091, 94 S.Ct. 721, 38 L.Ed.2d 548 (1973), to resolve the conflict among the Courts of Appeals on the questions of whether an income tax refund is 'property' under § 70a(5) of the Bankruptcy Act1 and whether, assuming that all or part of such tax refund is property which passes to the trustee, the Consumer Credit Protection Act's2 limitation on wage garnishment serves to exempt 75% of the refund from the jurisdiction of the trustee.3
2
The petitioner was employed for the first three months of 1971. He was then unemployed from April 1971 until late in December of that year. He was re-employed for about the last week and a half of December 1971. While employed, petitioner claimed two exemptions for federal income tax purposes, the maximum number of deductions to which he was entitled, and his employer withheld the appropriate portion of his wages. 26 U.S.C. § 3402. During the year 1971, petitioner had a gross income of $2,322.
3
On January 5, 1972, petitioner filed a voluntary petition in bankruptcy. With the exception of a 1962 Corvair automobile which the trustee abandoned as an asset upon the bankrupt's payment of $25, the sole asset claimed by the trustee in bankruptcy was an income tax refund entitlement for $250.90. On February 3, 1972, the referee in bankruptcy entered an ex parte order directing petitioner to turn the refund over to the trustee upon its receipt. The bankrupt moved to vacate that order and, after a hearing, the referee denied the motion. In mid-February 1972, petitioner filed his income tax return for the calendar year 1971. Several weeks later, he received his refund check from the Internal Revenue Service. Upon its receipt, petitioner complied with the order of the trustee but filed a petition for review of the referee's decision in the United States District Court.4 The District Court, denied relief. Petitioner was granted leave to appeal.5 On May 18, 1973, the United States Court of Appeals, for the Second Circuit affirmed the order of the District Court, holding that the tax refund was property within the meaning of § 70a(5) of the Bankruptcy Act and that it therefore vested in the trustee. 479 F.2d 990. The court further held that the limitations on garnishment contained in the Consumer Credit Protection Act did not apply to bankruptcy situations and that consequently, the trustee was entitled to the entire refund. Petitioner seeks review of these questions here.
4
(1)
5
We turn first to the question of whether petitioner's income tax refund was 'property' within the meaning of § 70a(5) of the Bankruptcy Act. The term has never been given a precise or universal definition. On an earlier occasion, in Segal v. Rochelle, 382 U.S. 375, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966), the Court noted that "(i)t is impossible to give any categorical definition to the word 'property' nor can we attach to it in certain relations the limitations which would be attached to it in others." Id., at 379, 86 S.Ct. at 515, quoting Fisher v. Cushman, 103 F. 860, 864 (CA1 1900). In determining the term's scope—and its limitations—the purposes of the Bankruptcy Act 'must ultimately govern.' 382 U.S., at 379, 86 S.Ct. at 515. See also Lines v. Frederick, 400 U.S. 18, 91 S.Ct. 113, 27 L.Ed.2d 124 (1970); Local Loan Co. v. Hunt, 292 U.S. 234, 54 S.Ct. 695, 78 L.Ed. 1230 (1934).
6
In applying these general considerations to the present situation, there are some guidelines. In Burlingham v. Crouse, 228 U.S. 459, 33 S.Ct. 564, 57 L.Ed. 920 (1913), for example, the Court stated:
7
'It is the twofold purpose of the bankruptcy act to convert the estate of the bankrupt into cash and distribute it among creditors and then to the bankrupt a fresh start with such exemptions and rights as the statute left untouched.' Id., at 473, 33 S.Ct. at 568.
8
See also Wetmore v. Markoe, 196 U.S. 68, 77, 25 S.Ct. 172, 175, 49 L.Ed. 390 (1904); Williams v. U.S. Fidelity Co., 236 U.S. 549, 554—555, 35 S.Ct. 289, 290, 59 L.Ed. 713 (1915); Stellwagen v. Clum, 245 U.S. 605, 617, 38 S.Ct. 215, 218, 62 L.Ed. 507 (1918). On two rather recent occasions, the Court has applied these general principles to the precise statutory section and to the precise term at issue here. In Segal v. Rochelle, supra, the Court said:
9
'The main thrust of § 70a(5) is to secure for creditors everything of value the bankrupt may possess in alienable or leviable form when he files his petition. To this end the term 'property' has been construed most generously and an interest is not outside its reach because it is novel or contingent or because enjoyment must be postponed.' 382 U.S., at 379, 86 S.Ct. at 515.
10
At the same time, the Court noted that this construction must be tempered by the intent of Congress 'to leave the bankrupt free after the date of his petition to accumulate new wealth in the future,' ibid., and thus 'make an unencumbered fresh start,' id., at 380, 86 S.Ct. at 515. Several years later, in Lines v. Frederick, supra, these same considerations were repeated in almost identical language. 400 U.S., at 19, 91 S.Ct. at 113. Segal and Lines, while construing § 70a(5) in almost identical language, reached contrary results. In each case, the Court found the crucial analytical key, not in an abstract articulation of the statute's purpose, but in an analysis of the nature of the asset involved in light of those principles.
11
In Segal, supra, this Court held that a business-generated loss carryback tax refund—which was based on prebankruptcy losses but received after bankruptcy—should pass to the trustee as § 70a(5) property. Balancing the dual purpose of the Bankruptcy Act, see Burlingham v. Crouse, supra, the Court concluded that the refund was 'sufficiently rooted in the prebankruptcy past and so little entangled with the bankrupt's ability to make an unencumbered fresh start that it should be regarded as 'property' under § 70a(5),' 382 U.S., at 380, 86 S.Ct. at 515. The Court noted that 'the very losses generating the refunds often help precipitate the bankruptcy and injury to the creditors,' id., at 378, 86 S.Ct. at 514, and that passing the claim to the trustee did not impede a 'fresh start.' On the contrary, a bankrupt 'without a refund claim to preserve has more reason to earn income rather than less.' Id., at 380, 86 S.Ct. at 515.
12
In Lines, supra, on the other hand, the Court held that vacation pay, accrued prior to the date of filing and collectible either during the plant's annual shutdown for vacation or on the final termination of employment, does not pass to the trustee as § 70a(5) property. As in Segal, supra, the Court analyzed the nature of the asset in the light of the dual purposes of the Bankruptcy Act. It concluded that such vacation pay was closely tied to the bankrupt's opportunity to have a "clear field for future effort, unhampered by the pressure and discouragement of preexisting debt." 400 U.S., at 20, 91 S.Ct. at 114, quoting Local Loan Co. v. Hunt, supra, at 244, 54 S.Ct., at 699.
13
The income tax refund at issue in the present case does not relate conceptually to future wages and it is not the equivalent of future wages for the purpose of giving the bankrupt a 'fresh start.' The tax payments refunded here were income tax payments withheld from the petitioner prior to his filing for bankruptcy and are based on earnings prior to that filing. Relying on Lines, however, petitioner contends that the refund is necessary for a 'fresh start' since it is solely derived from wages. In Lines, we described wages as "a specialized type of property presenting distinct problems in our economic system"6 since they provide the basic means for the 'economic survival of the debtor.' 400 U.S., at 20, 91 S.Ct., at 114.
14
Petitioner is correct in arguing that both this tax refund and the vacation pay in Lines share the common characteristic of being 'wage based.' It is also true, however, that only the vacation pay in Lines was designed to function as a wage substitute at some future period and, during that future period, to 'support the basic requirements of life for (the debtors) and their families . . ..' Ibid. This distinction is crucial. As the Court of Appeals noted, since a 'tax refund is not the weekly or other periodic income required by a wage earner for his basic support, to deprive him of it will not hinder his ability to make a fresh start unhampered by the pressure of preexisting debt,' 2 Cir., 479 F.2d, at 995. 'Just because some property interest had its source in wages . . . does not give it special protection, for to do so would exempt from the bankrupt estate most of the property owned by many bankrupts, such as savings accounts and automobiles which had their origin in wages.' Ibid.
15
We conclude, therefore, that the Court of Appeals correctly held that the income tax refund is 'sufficiently rooted in the prebankruptcy past'7 to be defined as 'property' under § 70a(5).
16
(2)
17
Our disposition of the first issue requires that we turn next to the petitioner's contention that 75% of the refund is exempt under the provisions of the Consumer Credit Protection Act. The Act provides that no more than 25% of a person's aggregate disposable earnings8 for any workweek or other pay period may be subject to garnishment. A trustee in bankruptcy takes title to the bankrupt's property 'except insofar as it is to property which is held to be exempt . . ..' Bankruptcy Act, § 70a, 11 U.S.C. § 110(a). Another section provides that the Act 'shall not affect the allowance to bankrupts of the exemptions which are prescribed by the laws of the United States . . ..' Bankruptcy Act § 6, 11 U.S.C. § 24. Petitioner argues that the Consumer Credit Protection Act's restrictions on garnishment, 15 U.S.C. § 1671 et seq., are such an exemption. In essence, the petitioner's position is that a tax refund, having its source in wages and being completely available to the taxpayer upon its return without any further deduction, is 'disposable earnings' within the meaning of the statute. 15 U.S.C. § 1672(b). He further argues that the taking of custody by the trustee is a 'garnishment' since a bankruptcy proceeding is a 'legal or equitable procedure through which the earnings of any individual are required to be withheld for payment of any debt.' § 1672(c).
18
The Congress did not enact the Consumer Credit Protection Act in a vacuum. The drafters of the statute were well aware that the provisions and the purposes of the Bankruptcy Act and the new legislation would have to coexist. Indeed, the Consumer Credit Protection Act explicitly rests on both the bankruptcy and commerce powers of the Congress, 15 U.S.C. § 1671(b). We must therefore take into consideration the language and purpose of both the Bankruptcy Act and the Consumer Credit Protection Act in assessing the validity of the petitioner's argument. When 'interpreting a statute, the court will not look merely to a particular clause in which general words may be used, but will take in connection with it the whole statute (or statutes on the same subject) and the objects and policy of the law, as indicated by its various provisions, and give to it such a construction as will carry into execution the will of the Legislature . . ..' Brown v. Duchesne, 19 How. 183, 194, 15 L.Ed. 595 (1857).
19
An examination of the legislative history of the Consumer Protection Act makes it clear that, while it was enacted against the background of the Bankruptcy Act, it was not intended to alter the clear purpose of the latter Act to assemble, once a bankruptcy petition is filed, all of the debtor's assets for the benefit of his creditors. See, e.g., Segal v. Rochelle, 382 U.S. 375, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966). Indeed, Congress' concern was not the administration of a bankrupt's estate but the prevention of bankruptcy in the first place by eliminating 'an essential element in the predatory extension of credit resulting in a disruption of employment, production, as well as consumption'9 and a consequent increase in personal bankruptcies. Noting that the evidence before the Committee 'clearly established a causal connection between harsh garnishment laws and high levels of personal bankruptcies,'10 the House Report concluded:
20
'The limitations on the garnishment of wages adopted by your committee, while permitting the continued orderly payment of consumer debts, will relieve countless honest debtors driven by economic desperation from plunging into bankruptcy in order to preserve their employment and insure a continued means of support for themselves and their families.' H.R.Rep.No.1040, 90th Cong., 1st Sess., 21 (1967).
21
See also id., at 7. In short, the Consumer Credit Protection Act sought to prevent consumers from entering bankruptcy in the first place. However, if, despite its protection, bankruptcy did occur, the debtor's protection and remedy remained under the Bankruptcy Act.
22
The Court of Appeals held that the terms 'earnings' and 'disposable earnings,' as used in 15 U.S.C. §§ 1672, 1673, did not include a tax refund, but were limited to 'periodic payments of compensation and (do) not pertain to every asset that is traceable in some way to such compensation.' 2 Cir., 479 F.2d, at 997. This view is fully supported by the legislative history. There is every indication that Congress, in an effort to avoid the necessity of bankruptcy, sought to regulate garnishment in its usual sense as a levy on periodic payments of compensation needed to support the wage earner and his family on a week-to-week, month-to-month basis. There is no indication, however, that Congress intended drastically to alter the delicate balance of a debtor's protections and obligations during the bankruptcy procedure.11 We therefore agree with the Court of Appeals that the Consumer Credit Protection Act does not restrict the right of the trustee to treat the income tax refund as property of the bankrupt's estate. Accordingly, the judgment of the Court of Appeals is affirmed.
23
It is so ordered.
24
Judgment affirmed.
1
The pertinent parts of § 70a(5) of the Bankruptcy Act, 11 U.S.C. § 110(a) (5), read as follows:
'(a) The trustee of the estate of a bankrupt . . . shall . . . be vested by operation of law with the title of the bankrupt as of the date of the filing of the petition initiating a proceeding under this title . . . to all of the following kinds of property wherever located . . . (5) property, including rights of action, which prior to the filing of the petition he could by any means have transferred or which might have been levied upon and sold under judicial process against him, or otherwise seized, impounded, or sequestered . . ..'
It is undisputed that the refunds could have been transferred under Connecticut law at the time of the filing of the petition, cf. Segal v. Rochelle, 382 U.S. 375, 381—385, 86 S.Ct. 511, 515, 15 L.Ed.2d 428 (1966).
2
82 Stat. 146, 15 U.S.C. § 1601 et seq.
3
Title 15 U.S.C. § 1673 reads, in pertinent part:
'(a) Maximum allowable garnishment.
'Except as provided in subsection (b) of this section and in section 1675 of this title, the maximum part of the aggregate disposable earnings of an individual for any workweek which is subjected to garnishment may not exceed
'(1) 25 per centum of his disposable earnings for that week, or
'(2) the amount by which his disposable earnings for that week exceed thirty times the Federal minimum hourly wage prescribed by section 206(a)(1) of Title 29 in effect at the time the earnings are payable,
'whichever is less. In the case of earnings for any pay period other than a week, the Secretary of Labor shall by regulation prescribe a multiple of the Federal minimum hourly wage equivalent in effect to that set forth in paragraph (2).
'(b) Exceptions.
'The restrictions of subsection (a) of this section do not apply in the case of
'(1) any order of any court for the support of any person.
'(2) any order of any court of bankruptcy under chapter XIII of the Bankruptcy Act.
'(3) any debt due for any State or Federal tax.
'(c) Execution or enforcement of garnishment order or process prohibited.
'No court of the United States or any State may make, execute, or enforce any order or process in violation of this section.'
4
11 U.S.C. § 67(c).
5
11 U.S.C. § 47(a).give
6
400 U.S. 18, 20, 91 S.Ct. 113, 114, quoting Sniadach v. Family Finance Corp., 395 U.S. 337, 340, 89 S.Ct. 1820, 1822, 23 L.Ed.2d 349 (1969).
7
Segal v. Rochelle, 382 U.S., at 380, 86 S.Ct., at 515.
8
Title 15 U.S.C. § 1672, entitled 'Definitions,' states:
'For the purpose of this subchapter:
'(a) The term 'earnings' means conpensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments pursuant to a pension or retirement program.
'(b) The term 'disposable earnings' means that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld.
'(c) The term 'garnishment' means any legal or equitable procedure through which the earnings of any individual are required to be withheld for payment of any debt.'
9
H.R.Rep.No.1040, 90th Cong., 1st Sess., 20 (1967).
10
Id., at 20—21.
11
Petitioner argues that, since Chapter XIII of the Bankruptcy Act had been explicitly excluded from the scope of the Consumer Credit Protection Act (see 15 U.S.C. § 1673(b)), it must have intended to include the other portions of the Bankruptcy Act. Chapter XIII permits a wage earner to satisfy his creditors out of future income under a supervised plan. This particular procedure resembles the normal credit situation to which the CCPA is directed more than other bankruptcy situations and, for this reason, Congress might well have felt it necessary to ensure that the CCPA was not enforced at the expense of the bankruptcy procedures.
| 78
|
417 U.S. 628
94 S.Ct. 2496.
41 L.Ed.2d 363
Eugenio and Alicia JIMENEZ, etc., Appellants,v.Caspar W. WEINBERGER, Secretary of Health, Education and Welfare.
No. 72—6609.
Argued March 18, 1974.
Decided June 19, 1974.
Syllabus
Under the Social Security Act illegitimate children are deemed entitled to disability insurance benefits without any showing that they are in fact dependent upon their disabled parent if state law permits them to inherit from the wage-earner parent; if their illegitimacy results solely from formal, nonobvious defects in their parents' ceremonial marriage; or if they are legitimated in accordance with state law. An illegitimate child unable to meet any of the foregoing conditions can qualify only if the disabled wage-earner parent contributed to the child's support or lived with him prior to the parent's disability, 42 U.S.C. § 416(h)(3)(B); if the child is unable to meet any of the foregoing conditions, the statute bars the child's benefits without any opportunity to establish entitlement thereto. Ramon Jimenez, a resident of Illinois (which does not allow nonlegitimated illegitimate children to inherit from their father), is a wage earner covered by the Act who became entitled to disability benefits in October 1963. Thereafter, Jimenez applied for insurance benefits for appellants, two of his nonlegitimated illegitimate children who were born after the onset of disability. The claims were denied since the children did not meet the requirements of 42 U.S.C. § 416(h)(3)(B) or the other qualifying provisions of the Act. Appellants brought this action for review of the denial of benefits. A three-judge District Court upheld the statutory classification as being rationally related to the proper governmental interest of avoiding spurious claims. Held: Title 42 U.S.C. § 416(h)(3)(B), as part of the statutory scheme applicable to illegitimates, contravenes the Due Process Clause of the Fifth Amendment and the equal protection of the laws guaranteed thereby. Pp. 631—638.
(a) '(T)he Equal Protection Clause (is violated by) discriminatory laws relating to status of birth where . . . the classification is justified by no legitimate state interest, compelling or otherwise.' Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 176, 92 S.Ct. 1400, 31 L.Ed.2d 768. Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491, distinguished. Pp. 631—634.
(b) The primary purpose of the contested provision of the Act is to provide support for dependents of a disabled wage earner and is not, as appellee contends, to replace only that support actually enjoyed before the onset of disability. Pp. 634—635.
(c) The complete statutory bar to disability benefits imposed upon nonlegitimated afterborn illegitimates in appellants' position, is not reasonably related to the valid governmental interest of preventing spurious claims. The potential for spurious claims is the same as to both. Even if children might rationally be classified on the basis of whether they are dependent upon their disabled parents, the Act's definition of two subclasses of illegitimates is 'overinclusive' in that it benefits some children who are legitimated, or entitled to inherit, or illegitimate solely because of a defect in the marriage of their parents, but who are not dependent on their disabled parent. Conversely, the Act is 'underinclusive' in that it conclusively excludes some illegitimates in appellants' subclass who are, in fact, dependent upon their disabled parent. Pp. 635—637.
(d) The judgment is vacated and the case is remanded to provide appellants an opportunity to establish their claim to eligibility as 'children' of the claimant eligible for benefits under the Act. Pp. 637—638.
353 F.Supp. 1356, vacated and remanded.
Jane G. Stevens, Chicago, Ill., for appellants.
Danny Julian Boggs, Bowling Green, Ky., for appellee.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
A three-judge District Court in the Northern District of Illinois upheld the constitutionality of a provision of the Social Security Act which provides that certain illegitimate children, who cannot qualify for benefits under any other provision of the Act, may obtain benefits if, but only if, the disabled wageearner parent is shown to have contributed to the child's support or to have lived with him prior to the parent's disability.1 The District Court held that the statute's classification is rationally related to the legitimate governmental interest of avoiding spurious claims. Jimenez v. Richardson, 353 F.Supp. 1356, 1361 (1973). We noted probable jurisdiction. 414 U.S. 1061, 94 S.Ct. 567, 38 L.Ed.2d 467.
2
The relevant facts are not in dispute. Ramon Jimenez, a wage earner covered under the Social Security Act, became disabled in April 1963, and became entitled to disability benefits in October 1963. Some years prior to that time, the claimant separated from his wife and began living with Elizabeth Hernandez, whom he never married. Three children were born to them, Magdalena, born August 13, 1963, Eugenio, born January 18, 1965, and Alicia, born February 24, 1968. These children have lived in Illinois with claimant all their lives; he has formally acknowledged them to be his children, has supported and cared for them since their birth, and has been their sole caretaker since their mother left the household late in 1968. Since the parents never married, these children are classified as illegitimate under Illinois law and are unable to inherit from their father because they are nonlegitimated illegitimate children. Ill.Ann.Stat., c. 3, § 12 (Supp.1974).
3
On August 21, 1968, Ramon Jimenez, as the father, filed an application for child's insurance benefits on behalf of these three children. Magdalena was found to be entitled to child's insurance benefits under the Social Security Act, and no issue is presented with respect to her claim. The claims of appellants, Eugenio and Alicia, were denied, however, on the ground that they did not meet the requirements of 42 U.S.C. § 416(h)(3), since neither child's paternity had been acknowledged or affirmed through evidence of domicile and support before the onset of their father's disability.2 In all other respects Eugenio and Alicia are eligible to receive child's insurance benefits, and their applications were denied solely because they are proscribed illegitimate children who were not dependent on Jimenez at the time of the onset of his disability.
4
Appellants urge that the contested Social Security provision is based upon the so-called 'suspect classification' of illegitimacy. Like race and national origin, they argue, illegitimacy is a characteristic determined solely by the accident of birth; it is a condition beyond the control of the children, and it is a status that subjects the children to a stigma of inferiority and a badge of opprobrium. We need not reach appellants' argument, however, because in the context of this case it is enough that we note, as we did in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972):
5
'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. 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 where . . . the classification is justified by no legitimate state interest, compelling or otherwise.' Id., at 175—176, 92 S.Ct., at 1406.
6
Conversely, the Secretary urges us to uphold this statutory scheme on the ground that the case is controlled by the Court's recent ruling in Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), where we noted:
7
'In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some 'reasonable basis,' it does not offend the Constitution simply because the classification 'is not made with mathematical nicety or because in practice it results in some inequality.' Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369. 'The problems of government are practical ones and may justify, if they do not require, rough accommodations—illogical, it may be, and unscientific.' Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69 70, 33 S.Ct. 441, 443, 57 L.Ed. 730. 'A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.' McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393.' Id., at 485, 90 S.Ct., at 1161.
8
However, Dandridge involved an equal protection attack upon Maryland's Aid to Families with Dependent Children program which provided aid in accordance with the family's standard of need, but limited the maximum grant to $250 per family, regardless of size, thereby reducing the per capita allowance for children of large families. We noted that the AFDC welfare program is a "scheme of cooperative federalism" and that the 'starting point of the statutory analysis must be a recognition that the federal law gives each State great latitude in dispensing its available funds.' Id., at 478, 90 S.Ct., at 1158. This special deference to Maryland's statutory approach was necessary because, '(g)iven Maryland's finite resources, its choice is either to support some families adequately and others less adequately, or not to give sufficient support to any family.' Id., at 479, 90 S.Ct., at 1159. Here, by contrast, there is no evidence supporting the contention that to allow illegitimates in the classification of appellants to receive benefits would significantly impair the federal Social Security trust fund and necessitate a reduction in the scope of persons benefited by the Act. On the contrary, the Secretary has persistently maintained that the purpose of the contested statutory scheme is to provide support for dependents of a wage earner who has lost his earning power, and that the provisions excluding some afterborn illegitimates from recovery are designed only to prevent spurious claims and ensure that only those actually entitled to benefit receive payments. Accepting this view of the relevant provisions of the Act, we cannot conclude that the purpose of the statutory exclusion of some afterborn illegitimates is to achieve a necessary allocation of finite resources and, to that extent, Dandridge is distinguishable and not controlling.
9
As we have noted, the primary purpose of the contested Social Security scheme is to provide support for dependents of a disabled wage earner.3 The Secretary maintains that the Act denies benefits to afterborn illegitimates who cannot inherit or whose illegitimacy is not solely because of a formal, nonobvious defect in their parents' wedding ceremony, or who are not legitimated, because it is 'likely' that these illegitimates, as a class, will not possess the requisite economic dependency on the wage earner which would entitle them to recovery under the Act and because eligibility for such benefits to those illegitimates would open the door to spurious claims. Under this view the Act's purpose would be to replace only that support enjoyed prior to the onset of disability; no child would be eligible to receive benefits unless the child had experienced actual support from the wage earner prior to the disability, and no child born after the onset of the wage earner's disability would be allowed to recover. We do not read the statute as supporting that view of its purpose. Under the statute it is clear that illegitimate children born after the wage earner becomes disabled qualify for benefits if state law permits them to inherit from the wage earner, § 416(h)(2) (A); or if their illegitimacy results solely from formal, nonobvious defects in their parents' ceremonial marriage, § 416(h)(2)(B); or if they are legitimated in accordance with state law, § 402(d)(3)(A). Similarly, legitimate children born after their wage-earning parent has become disabled and legitimate children born before the onset of disability are entitled to benefits regardless of whether they were living with or being supported by the disabled parent at the onset of the disability, §§ 402(d)(1) and (3).
10
In each of the examples just mentioned, the child is by statute 'deemed dependent' upon the parent by virtue of his status and no dependency or paternity need be shown for the child to qualify for benefits. However, nonlegitimated illegitimates in appellants' position, who cannot inherit under state law and whose illegitimacy does not derive solely from a defect in their parents' wedding ceremony, are denied a parallel right to the dependency presumption under the Act. Their dilemma is compounded by the fact that the statute denies them any opportunity to prove dependency in order to establish their 'claim' to support and, hence, their right to eligibility. § 416(h)(3) (B). The Secretary maintains that this absolute bar to disability benefits is necessary to prevent spurious claims because '(t)o the unscrupulous person, all that prevents him from realizing . . . gain is the mere formality of a spurious acknowledgment of paternity or a collusive paternity suit with the mother of an illegitimate child who is herself desirous or in need of the additional cash.' Jimenez v. Richardson, 353 F.Supp., at 1361.
11
From what has been outlined it emerges that afterborn illegitimate children are divided into two subclassifications under this statute. One subclass is made up of those (a) who can inherit under state intestacy laws, or (b) who are legitimated under state law, or (c) who are illegitimate only because of some formal defect in their parents' ceremonial marriage. These children are deemed entitled to receive benefits under the Act without any showing that they are in fact dependent upon their disabled parent. The second subclassification of afterborn illegitimate children includes those who are conclusively denied benefits because they do not fall within one of the foregoing categories and are not entitled to receive insurance benefits under any other provision of the Act.
12
We recognize that the prevention of spurious claims is a legitimate governmental interest and that dependency of illegitimates in appellants' subclass, as defined under the federal statute, has not been legally established even though, as here, paternity has been acknowledged. As we have noted, the Secretary maintains that the possibility that evidence of parentage or support may be fabricated is greater when the child is not born until after the wage earner has become entitled to benefits. It does not follow, however, that the blanket and conclusive exclusion of appellants' subclass of illegitimates is reasonably related to the prevention of spurious claims. Assuming that the appellants are in fact dependent on the claimant, it would not serve the purposes of the Act to conclusively deny them an opportunity to establish their dependency and their right to insurance benefits, and it would discriminate between the two subclasses of afterborn illegitimates without any basis for the distinction since the potential for spurious claims is exactly the same as to both subclasses.
13
The Secretary does not contend that it is necessarily or universally true that all illegitimates in appellants' subclass would be unable to establish their dependency and eligibility under the Act if the statute gave them an opportunity to do so. Nor does he suggest a basis for the assumption that all illegitimates who are statutorily deemed entitled to benefits under the Act are in fact dependent upon their disabled parent. Indeed, as we have noted, those illegitimates statutorily deemed dependent are entitled to benefits regardless of whether they were living in, or had ever lived in, a dependent family setting with their disabled parent. Even if children might rationally be classified on the basis of whether they are dependent upon their disabled parent, the Act's definition of these two subclasses of illegitimates is 'overinclusive' in that it benefits some children who are legitimated, or entitled to inherit, or illegitimate solely because of a defect in the marriage of their parents, but who are not dependent on their disabled parent. Conversely, the Act is 'underinclusive' in that it conclusively excludes some illegitimates in appellants' subclass who are, in fact, dependent upon their disabled parent. Thus, for all that is shown in this record, the two subclasses of illegitimates stand on equal footing, and the potential for spurious claims is the same as to both; hence to conclusively deny one subclass benefits presumptively available to the other denies the former the equal protection of the laws guaranteed by the due process provision of the Fifth Amendment. Schneider v. Rusk, 377 U.S. 163, 168, 84 S.Ct. 1187, 1190, 12 L.Ed.2d 218 (1964); Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954).
14
In the District Court the Secretary, relying on the validity of the statutory exclusion, did not undertake to challenge the assertion that appellants are the children of the claimant, that they lived with the claimant all their lives, that he has formally acknowledged them to be his children, and that he has supported and cared for them since their birth. Accordingly, the judgment is vacated and the case is remanded to provide appellants an opportunity, consistent with this opinion, to establish their claim to eligibility as 'children' of the claimant under the Social Security Act.
15
Vacated and remanded.
16
Remanded.
17
Mr. Justice REHNQUIST, dissenting.
18
I frankly find the Court's opinion in this case a perplexing three-legged stool. The holding is clearly founded in notions of equal protection, see ante, at 637, and the Court speaks specifically of improper 'discrimination.' Yet the opinion has strong due process overtones as well, at times appearing to pay homage to the still novel, and I think unsupportable, theory that 'irrebuttable presumptions' violate due process. At other times the opinion seems to suggest that the real problem in this case is the Government's failure to build an adequate evidentiary record in support of the challenged legislation. The result is a rather impressionistic determination that Congress' efforts to cope with spurious claims of entitlement, while preserving maximum benefits for those persons most likely to be deserving, are simply not satisfactory to the numbers of this Court. I agree with neither the Court's approach nor its decision.
19
The Court's equal protection analysis is perhaps most difficult to understand. The Court apparently finds no need to resolve the question of whether illegitimacy constitutes a 'suspect classification,' noting instead that "the Equal Protection Clause does enable us to strike down discriminatory laws relating to status of birth where . . . the classification is justified by no legitimate state interest, compelling or otherwise.' (Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 176, 92 S.Ct. 1400, 1406, 31 L.Ed.2d 768 (1972).)' Ante, at 632. (Emphasis added.) This statement might be thought to set the stage for a decision striking down the legislation on the basis of discrimination between legitimates and illegitimates. But the Court then leaves that issue, finding instead that the statute is unconstitutional because it 'discriminate(s) between the two subclasses of afterborn illegitimates without any basis for the distinction . . ..' Ante, at 636. (Emphasis added.) Whatever may be the rationale for giving some form of stricter scrutiny to classifications between legitimates and illegitimates, that rationale simply vanishes when the alleged discrimination is between classes of illegitimates. Such classifications should instead be evaluated according to the traditional principle set forth in Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970): 'If the classification has some 'reasonable basis,' it does not offend the Constitution simply because the classification 'is not made with mathematical nicety or because in practice it results in some inequality." Id., at 485, 90 S.Ct., at 1161. (Citation omitted.)
20
The Court's rejection of this principle strongly smacks of due process rather than equal protection concepts. The Court states that '(a)ssuming . . . appellants are in fact dependent on the claimant, it would not serve the purpose of the Act to conclusively deny them an opportunity to establish their dependency and their right to insurance benefits,' ante, at 636 (emphasis added), and indicates that the real problem with the legislation is that it is both 'overinclusive' and 'underinclusive.' According to the Court, the legislation cannot stand because 'some children' entitled to benefits 'are not dependent on their disabled parent' and because 'some illegitimates' who do not get benefits 'are, in fact, dependent upon their disabled parent.' Ante, at 637. In my view this is simply an attack on 'irrebuttable presumptions' in another guise. See Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974). The very process of making legislative decisions to govern society as a whole means that some individuals will be treated less favorably than other individuals who fall within a different legislative classification. As the Chief Justice stated only last Term in Vlandis v. Kline, 412 U.S. 441, 462, 93 S.Ct. 2230, 2241, 37 L.Ed.2d 63 (1973) (dissenting opinion): '(L)iterally thousands of state statutes create classifications permanent in duration, which are less than perfect, as all legislative classifications are, and might be improved on by individualized determinations . . ..' This Court should not invalidate such classifications simply out of a preference for different classifications or because an unworkable system of individualized consideration would theoretically be more perfect.
21
There are also hints in the opinion that the Government failed to build an adequate evidentiary record in support of the challenged classifications. Thus the Court distinguishes Dandridge v. Williams, supra, a case in which the Court respected the State's allocation of limited resources, by saying: 'Here, by contrast, there is no evidence supporting the contention that to allow illegitimates in the classification of appellants to receive benefits would significantly impair the federal Social Security trust fund and necessitate a reduction in the scope of persons benefited by the Act.' Ante, at 633. (Emphasis added.) I should think it obvious that any increase in the number of eligible recipients would serve to additionally deplete a fixed fund, but I find even stranger the notion that the Government must present evidence to justify each and every classification that a legislature chooses to make. If I read the Court's opinion correctly, it would seem to require, for example, that the Government compile evidence to support Congress' determination that Social Security benefits begin at a specified age, perhaps even requiring statistics to show that need is greater (in all cases?) at that age than atlesser ages. This proposition is certainly far removed from traditional principles of deference to legislative judgment. As we stated in McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961): 'A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.' There is nothing in that language that suggests to me that courtrooms should become forums for a second round of legislative hearings whenever a legislative determination is later challenged.
22
Since I believe that the District Court correctly concluded that the classifications at issue rest upon a rational basis, I dissent.
1
42 U.S.C. § 416(h)(3).
2
The contested Social Security scheme provides, in essence, that legitimate or legitimated children (42 U.S.C. § 402(d)(3)), illegitimate children who can inherit their parents' personal property under the intestacy laws of the State of the insured's domicile (42 U.S.C. § 416(h)(2)(A)), and those children who cannot inherit only because their parents' ceremonial marriage was invalid for nonobvious defects (42 U.S.C. § 416(h)(2)(B)), are entitled to receive benefits without any further showing of parental support. However, illegitimate children such as Eugenio and Alicia who were not living with or being supported by the applicant at the time the claimant's period of disability began, and who do not fall into one of the foregoing categories, are not entitled to receive any benefits. 42 U.S.C. § 416(h)(3).
3
See House-Senate Conference Committee Report on 1965 Amendments to Social Security Act, 111 Cong.Rec. 18387 (1965); Report of the U.S. Advisory Council on Social Security, the Status of the Social Security Program and Recommendations for its Improvement 67 (1965).
| 12
|
417 U.S. 733
94 S.Ct. 2547.
41 L.Ed.2d 439
Jocob J. PARKER, Warden, et al., Appellants,v.Howard B. LEVY.
No. 73—206.
Argued Feb. 20, 1974.
Decided June 19, 1974.
Syllabus
Article 90(2) of the Uniform Code of Military Justice (Code) provides for punishment of any person subject to the Code who 'willfully disobeys a lawful command of his superior commissioned officer'; Art. 133 punishes a commissioned officer for 'conduct unbecoming an officer and a gentleman'; and Art. 134 (the general article) punishes any person subject to the Code for, inter alia, 'all disorders and neglects to the prejudice of good order and discipline in the armed forces,' though not specifically mentioned in the Code. Appellee, an Army physician assigned to a hospital, was convicted by a general court-martial of violating Art. 90(2) for disobeying the hospital commandant's order to establish a training program for Special Forces aide men, and of violating Arts. 133 and 134 for making public statements urging Negro enlisted men to refuse to obey orders to go to Vietnam and referring to Special Forces personnel as 'liars and thieves,' 'killers of peasants,' and 'murders of women and children.' After his conviction was sustained within the military and he exhausted this avenue of relief, appellee sought habeas corpus relief in the District Court, challenging his conviction on the ground that both Art. 133 and Art. 134 are 'void for vagueness' under the Due Process Clause of the Fifth Amendment and overbroad in violation of the First Amendment. The District Court denied relief, but the Court of Appeals reversed, holding that Arts. 133 and 134 are void for vagueness, that while appellee's conduct fell within an example of Art. 134 violations contained in the Manual for Courts-Martial, the possibility that the articles would be applied to others' future conduct as to which there was insufficient warning, or which was within the area of protected First Amendment expression, was enough to give appellee standing to challenge both articles on their face, and that the joint consideration of the Art. 90 charges gave rise to a 'reasonable possibility' that appellee's right to a fair trial was prejudiced, so that a new trial was required. Held:
1. Articles 133 and 134 are not unconstitutionally vague under the Due Process Clause of the Fifth Amendment. Pp. 752—757.
(a) Each article has been construed by the United States Court of Military Appeals or by other military authorities, such as the Manual for Courts-Martial, so as to limit its scope, thus narrowing the very broad reach of the literal language of the articles, and at the same time supplying considerable specificity by way of examples of the conduct that they cover. Pp. 752—755.
(b) The articles are not subject to being condemned for specifying no standard of conduct at all, but are of the type of statutes which 'by their terms or as authoritatively construed apply without question to certain activities, but whose application to other behavior is uncertain,' Smith v. Goguen, 415 U.S. 566, 578, 94 S.Ct. 1242, 39 L.Ed.2d 605. Pp. 755—756.
(c) Because of the factors differentiating military from civilian society, Congress is permitted to legislate with greater breadth and flexibility when prescribing rules for the former than when prescribing rules for the latter, and the proper standard of review for a vagueness challenge to Code articles is the standard that applies to criminal statutes regulating economic affairs, and that standard was met here, since appellee could have had no reasonable doubt that his statements urging Negro enlisted men not to go to Vietnam if ordered to do so was both 'unbecoming an officer and gentleman' and 'to the prejudice of good order and discipline in the armed forces,' in violation of Arts. 133 and 134, respectively. Pp. 756—757.
2. Nor are Arts. 133 and 134 facially invalid because of overbreadth. Pp. 757—761.
(a) Doctrines of First Amendment overbreadth asserted in support of challenges to imprecise language like that contained in Arts. 133 and 134 are not exempt from the operation of the principles that while military personnel are not excluded from First Amendment protection, the fundamental necessity for obedience, and the consequent necessity for discipline, may render permissible within the military that which would be constitutionally impermissible outside it. Pp. 758—759.
(b) There is a wide range of conduct to which Arts. 133 and 134 may be applied without infringing the First Amendment, and while there may be marginal applications in which First Amendment values would be infringed, this is insufficient to invalidate either article at appellee's behest. His conduct in publicly urging enlisted personnel to refuse to obey orders which might send them into combat was unprotected under the most expansive notions of the First Amendment, and Arts. 133 and 134 may constitutionally prohibit that conduct, and a sufficiently large number of similar or related types of conduct so as to preclude their invalidation for overbreadth. Pp. 760—761.
3. Appellee's contention that even if Arts. 133 and 134 are constitutional, his conviction under Art. 90 should be invalidated because to carry out the hospital commandant's order would have constituted participation in a war crime and because the commandant gave the order, knowing it would be disobeyed, for the sole purpose of increasing appellee's punishment, is not of constitutional significance and is beyond the scope of review, since such defenses were resolved against appellee on a factual basis by the court-martial that convicted him. P. 761.
3 Cir., 478 F.2d 772, reversed.
Sol. Gen. Robert H. Bork, for appellants.
Charles Morgan, Jr., Atlanta, Ga., for appellee.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Appellee Howard Levy, a physician, was a captain in the Army stationed at Fort Jackson, South Carolina. He had entered the Army under the so-called 'Berry Plan,'1 under which he agreed to serve for two years in the Armed Forces if permitted first to complete his medical training. From the time he entered on active duty in July 1965 until his trial by court-martial, he was assigned as Chief of the Dermatological Service of the United States Army Hospital at Fort Jackson. On June 2, 1967, appellee was convicted by a general court-martial of violations of Arts. 90, 133, and 134 of the Uniform Code of Military Justice, and sentenced to dismissal from the service, forfeiture of all pay and allowances, and confinement for three years at hard labor.
2
The facts upon which his conviction rests are virtually undisputed. The evidence admitted at his court-martial trial showed that one of the functions of the hospital to which appellee was assigned was that of training Special Forces aide men. As Chief of the Dermatological Service, appellee was to conduct a clinic for those aide men. In the late summer of 1966, it came to the attention of the hospital commander that the dermatology training of the students was unsatisfactory. After investigating the program and determining that appellee had totally neglected his duties, the commander called appellee to his office and personally handed him a written order to conduct the training. Appellee read the order, said that he understood it, but declared that he would not obey it because of his medical ethics. Appellee persisted in his refusal to obey the order, and later reviews of the program established that the training was still not being carried out.
3
During the same period of time, appellee made several public statements to enlisted personnel at the post, of which the following is representative:
4
'The United States is wrong in being involved in the Viet Nam War. I would refuse to go to Viet Nam if ordered to do so. I don't see why any colored soldier would go to Viet Nam: they should refuse to go to Viet Nam and if sent should refuse to fight because they are discriminated against and denied their freedom in the United States, and they are sacrificed and discriminated against in Viet Nam by being given all the hazardous duty and they are suffering the majority of casualties. If I were a colored soldier I would refuse to go to Viet Nam and if I were a colored soldier and were sent I would refuse to fight. Special Forces personnel are liars and thieves and killers of peasants and murderers of women and children.'
5
Appellee's military superiors originally contemplated nonjudicial proceedings against him under Art. 15 of the Uniform Code of Military Justice, 10 U.S.C. § 815, but later determined that courtmartial proceedings were appropriate. The specification under Art. 90 alleged that appellee willfully disobeyed the hospital commandant's order to establish the training program, in violation of that article, which punishes anyone subject to the Uniform Code of Military Justice who 'willfully disobeys a lawful command of his superior commissioned officer.'2 Statements to enlisted personnel were listed as specifications under the charges of violating Arts. 133 and 134 of the Code. Article 133 provides for the punishment of 'conduct unbecoming an officer and a gentleman,'3 while Art. 134 proscribes, inter alia, 'all disorders and neglects to the prejudice of good order and discipline in the armed forces.'4
6
The specification under Art. 134 alleged that appellee 'did, at Fort Jackson, South Carolina, . . . with design to promote disloyalty and disaffection among the troops, publicly utter (certain) statements to divers enlisted personnel at divers times . . ..'5 The specification under Art. 133 alleged that appellee did 'while in the performance of his duties at the United States Army Hospital . . . wrongfully and dishonorably' make statements variously described as intemperate, defamatory, provoking, disloyal, contemptuous, and disrespectful to Special Forces personnel and to enlisted personnel who were patients or under his supervision.6
7
Appellee was convicted by the courtmartial, and his conviction was sustained on his appeals within the military.7 After he had exhausted this avenue of relief, he sought federal habeas corpus in the United States District Court for the Middle District of Pennsylvania, challenging his court-martial conviction on a number of grounds. The District Court, on the basis of the voluminous record of the military proceedings and the argument of counsel, denied relief. It held that the 'various articles of the Uniform Code of Military Justice are not unconstitutional for vagueness,' citing several decisions of the United States Court of Military Appeals.8 The court rejected the balance of appellee's claims without addressing them individually, noting that the military tribunals had given fair consideration to them and that the role of the federal courts in reviewing court-martial proceedings was a limited one.
8
The Court of Appeals reversed, holding in a lengthy opinion that Arts. 133 and 134 are void for vagueness. 478 F.2d 772 (CA3 1973). The court found little difficulty in concluding that 'as measured by contemporary standards of vagueness applicable to statutes and ordinances governing civilians,' the general articles 'do not pass constitutional muster.' It relied on such cases as Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966); Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971), and Gelling v. Texas, 343 U.S. 960, 72 S.Ct. 1002, 96 L.Ed. 1359 (1952). The Court of Appeals did not rule that appellee was punished for doing things he could not reasonably have known constituted conduct proscribed by Art. 133 or 134. Indeed, it recognized that his conduct fell within one of the examples of Art. 134 violations contained in the Manual for Courts-Martial, promulgated by the President by Executive Order.9 Nonetheless, relying chiefly on Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972), the Court found the possibility that Arts. 133 and 134 would be applied to future conduct of others as to which there was insufficient warning, or which was within the area of protected First Amendment expression, was enough to give
8
United States v. Howe, 17 U.S.C.M.A. 165, 37 C.M.R. 429 (1967); United States v. Sadinsky, 14 U.S.C.M.A. 563, 34 C.M.R. 343 (1964); United States v. Frantz, 2 U.S.C.M.A. 161, 7 C.M.R. 37 (1953).
9
Manual for Courts-Martial 213f(5) (1969). appellee standing to challenge both articles on their face. While it acknowledged that different standards might in some circumstances be applicable in considering vagueness challenges to provisions which govern the conduct of members of the Armed Forces, the Court saw in the case of Arts. 133 and 134 no 'countervailing military considerations which justify the twisting of established standards of due process in order to hold inviolate these articles, so clearly repugnant under current constitutional values.' Turning finally to appellee's conviction under Art. 90, the Court held that the joint consideration of Art. 90 charges with the charges under Arts. 133 and 134 gave rise to a 'reasonable possibility' that appellee's right to a fair trial was prejudiced, so that a new trial was required.
Appellants appealed to this Court pursuant to 28 U.S.C. § 1252. We set the case for oral argument, and postponed consideration of the question of our jurisdiction to the hearing on the merits. 414 U.S. 973, 94 S.Ct. 286, 38 L.Ed.2d 216 (1973)10
*
This Court has long recognized that the military is, by necessity, a specialized society separate from civilian society. We have also recognized that the military has, again by necessity, developed laws and traditions of its own during its long history. The differences between the military and civilian communities result from the fact that 'it is the primary business of armies and navies to fight or ready to fight wars should the occasion arise.' United States ex rel. Toth v. Quarles, 350 U.S. 11, 17, 76 S.Ct. 1, 5, 100 L.Ed. 8 (1955). In In re Grimley, 137 U.S. 147, 153, 11 S.Ct. 54, 55, 34 L.Ed. 636 (1890), the Court observed: 'An army is not a deliberative body. It is the executive arm. Its law is that of obedience. No question can be left open as to the right to command in the officer, or the duty of obedience in the soldier.' More recently we noted that '(t)he military constitutes a specialized community governed by a separate discipline from that of the civilian,' Orloff v. Willoughby, 345 U.S. 83, 94, 73 S.Ct. 534, 540, 97 L.Ed. 842 (1953), and that 'the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty . . ..' Burns v. Wilson, 346 U.S. 137, 140, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953) (plurality opinion). We have also recognized that a military officer holds a particular position of responsibility and command in the Armed Forces:
'The President's commission . . . recites that 'reposing special trust and confidence in the patriotism, valor, fidelity and abilities' of the appointee he is named to the specified rank during the pleasure of the President.' Orloff v. Willoughby, supra, at 91, 73 S.Ct., at 539.
Just as military society has been a society apart from civilian society, so '(m)ilitary law . . . is a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment.' Burns v. Wilson, supra, at 140, 73 S.Ct., at 1047. And to maintain the discipline essential to perform its mission effectively, the military has developed what 'may not unfitly be called the customary military law' or 'general usage of the military service.' Martin v. Mott, 12 Wheat. 19, 35, 6 L.Ed. 537 (1827). As the opinion in Martin v. Mott demonstrates, the Court has approved the enforcement of those military customs and usages by courts-martial from the early days of this Nation:
'. . . Courts Martial, when duly organized, are bound to execute their duties, and regulate their modes of proceeding, in the absence of positive enactments.
Upon any other principle, Courts Martial would be left without any adequate means to exercise the authority confided to them: for there could scarcely be framed a positive code to provide for the infinite variety of incidents applicable to them.' Id. at 35—36.
An examination of the British antecedents of our military law shows that the military law of Britian had long contained the forebears of Arts. 133 and 134 in remarkably similar language. The Articles of the Earl of Essex (1642) provided that '(a)ll other faults, disorders and offenses, not mentioned in these Articles, shall be punished according to the general customs and laws of war.' One of the British Articles of War of 1765 made punishable 'all Disorders or Neglects . . . to the Prejudice of good Order and Military Discipline . . .' that were not mentioned in the other articles.11 Another of those articles provided:
'Whatsoever Commissioned Officer shall be convicted before a General Court-martial, of behaving in a scandalous infamous Manner, such as is unbecoming the Character of an Officer and a Gentleman, shall be discharged from Our Service.'12
In 1775 the Continental Congress adopted this last article, along with 68 others for the governance of its army.13 The following year it was resolved by the Congress that 'the committee on spies be directed to revise the rules and articles of war; this being a committee of five, consisting of John Adams, Thomas Jefferson, John Rutledge, James Wilson and R. R. Livingston . . ..'14 The article was included in the new set of articles prepared by the Committee, which Congress adopted on September 20, 1776.15 After being once more re-enacted without change in text in 1786, it was revised and expanded in 1806, omitting the terms 'scandalous' and 'infamous,' so as to read:
'Any commissioned officer convicted before a general court-martial of conduct unbecoming an officer and a gentleman, shall be dismissed (from) the service.'16
From 1806, it remained basically unchanged through numerous congressional re-enactments until it was enacted as Art. 133 of the Uniform Code of Military Justice in 1951.
The British article punishing 'all Disorders and Neglects . . .' was also adopted by the Continental Congress in 1775 and re-enacted in 1776.17 Except for a revision in 1916, which added the clause punishing 'all conduct of a nature to bring discredit upon the military service,'18 substantially the same language was preserved throughout the various re-enactments of this article too, until in 1951 it was enacted as Art. 134 of the Uniform Code of Military Justice.
Decisions of this Court during the last century have recognized that the longstanding customs and usages of the services impart accepted meaning to the seemingly imprecise standards of Arts. 133 and 134. In Dynes v. Hoover, 20 How. 65, 15 L.Ed. 838 (1857), this Court upheld the Navy's general article, which provided that '(a)ll crimes committed by persons belonging to the navy, which are not specified in the foregoing articles, shall be punished according to the laws and customs in such cases at sea.' The Court reasoned:
'(W)hen offences and crimes are not given in terms or by definition, the want of it may be supplied by a comprehensive enactment, such as the 32d article of the rules for the government of the navy, which means that courts martial have jurisdiction of such crimes as are not specified, but which have been recognised to be crimes and offences by the usages in the navy of all nations, and that they shall be punished according to the laws and customs of the sea. Notwithstanding the apparent indeterminateness of such a provision, it is not liable to abuse; for what those crimes are, and how they are to be punished, is well known by practical men in the navy and army, and by those who have studied the law of courts martial, and the offences of which the different courts martial have cognizance.' Id., at 82.
In Smith v. Whitney, 116 U.S. 167, 6 S.Ct. 570, 29 L.Ed. 601 (1886), this Court refused to issue a writ of prohibition against Smith's court-martial trial on charges of '(s)candalous conduct tending to the destruction of good morals' and '(c)ulpable inefficiency in the performance of duty.' The Court again recognized the role of 'the usages and customs of war' and 'old practice in the army' in the interpretation of military law by military tribunals. Id., at 178—179, 6 S.Ct., at 576.
In United States v. Fletcher, 148 U.S. 84, 13 S.Ct. 552, 37 L.Ed. 378 (1893), the Court considered a court-martial conviction under what is now Art. 133, rejecting Captain Fletcher's claim that the court-marital could not properly have held that his refusal to pay a just debt was 'conduct unbecoming an officer and a gentleman.' The Court of Claims decision which the Court affirmed in Fletcher stressed the military's 'higher code termed honor, which holds its society to stricter accountability'19 and with which those trained only in civilian law are unfamiliar. In Swaim v. United States, 165 U.S. 553, 17 S.Ct. 448, 41 L.Ed. 823 (1897), the Court affirmed another Court of Claims decision, this time refusing to disturb a court-martial conviction for conduct 'to the prejudice of good order and military discipline' in violation of the Articles of War. The Court recognized the role of 'unwritten law or usage' in giving meaning to the language of what is now Art. 134. In rejecting Swaim's argument that the evidence failed to establish an offense under the article, the Court said:
'(T)his is the very matter that falls within the province of courts-martial, and in respect to which their conclusions cannot be controlled or reviewed by the civil courts. As was said in Smith v. Whitney, 116 U.S. 178 (6 S.Ct. 570, 576, 29 L.Ed. 601), 'Of questions not depending upon the construction of the statutes, but upon unwritten military law or usage, within the jurisdiction of courts-martial, military or naval officers, from their training and experience in the service, are more competent judges than the courts of common law." 165 U.S., at 562, 17 S.Ct., at 451.
The Court of Claims had observed that cases involving 'conduct to the prejudice of good order and military discipline,' as opposed to conduct unbecoming an officer, 'are still further beyond the bounds of ordinary judicial judgment, for they are not measurable by our innate sense of right and wrong, of honor and dishonor, but must be gauged by an actual knowledge and experience of military life, its usages and duties.'20
II
The differences noted by this settled line of authority, first between the military community and the civilian community, and second between military law and civilian law, continue in the present day under the Uniform Code of Military Justice. That Code cannot be equated to a civilian criminal code. It, and the various versions of the Articles of War which have preceded it, regulate aspects of the conduct of members of the military which in the civilian sphere are left unregulated. While a civilian criminal code carves out a relatively small segment of potential conduct and declares it criminal, the Uniform Code of Military Justice essays more varied regulation of a much larger segment of the activities of the more tightly knit military community. In civilian life there is no legal sanction—civil or criminal—for failure to behave as an officer and a gentleman; in the military world, Art. 133 imposes such a sanction on a commissioned officer. The Code likewise imposes other sanctions for conduct that in civilian life is not subject to criminal penalties: disrespect toward superior commissioned officers, Art. 89, 10 U.S.C. § 889; cruelty toward, or oppression or maltreatment of subordinates, Art. 93, 10 U.S.C. § 893; negligent damaging, destruction, or wrongful disposition of military property of the United States, Art. 108, 10 U.S.C. 908; improper hazarding of a vessel, Art. 110, 10 U.S.C. § 910; drunkenness on duty, Art. 112, 10 U.S.C. § 912; and malingering, Art. 115, 10 U.S.C. § 915.
But the other side of the coin is that the penalties provided in the Code vary from death and substantial penal confinement at one extreme to forms of administrative discipline which are below the threshold of what would normally be considered a criminal sanction at the other. Though all of the offenses described in the Code are punishable 'as a court-martial may direct,' and the accused may demand a trial by court-martial,21 Art. 15 of the Code also provides for the imposition of nonjudicial 'disciplinary punishments' for minor offenses without the intervention of a court-martial. 10 U.S.C. § 815. The punishments imposable under that article are of a limited nature. With respect to officers, punishment may encompass suspension of duty, arrest in quarters for not more than 30 days, restriction for not more than 60 days, and forfeiture of pay for a limited period of time. In the case of enlisted men, such punishment may additionally include, among other things, reduction to the next inferior pay grade, extra fatigue duty, and correctional custody for not more than seven consecutive days. Thus, while legal proceedings actually brought before a court-martial are prosecuted in the name of the Government, and the accused has the right to demand that he be proceeded against in this manner before any sanctions may be imposed upon him, a range of minor sanctions for lesser infractions are often imposed administratively. Forfeiture of pay, reduction in rank, and even dismissal from the service bring to mind the law of labor-management relations as much as the civilian criminal law.
In short, the Uniform Code of Military Justice regulates a far broader range of the conduct of military personnel than a typical state criminal code regulates of the conduct of civilians; but at the same time the enforcement of that Code in the area of minor offenses is often by sanctions which are more akin to administrative or civil sanctions than to civilian criminal ones.
The availability of these lesser sanctions is not surprising in view of the different relationship of the Government to members of the military. It is not only that of lawgiver to citizen, but also that of employer to employee. Indeed, unlike the civilian situation, the Government is often employer, landlord, provisioner, and lawgiver rolled into one. That relationship also reflects the different purposes of the two communities. As we observed in In re Grimley, 137 U.S., at 153, 11 S.Ct., at 55, the military 'is the executive arm' whose 'law is that of obedience.' While members of the military community enjoy many of the same rights and bear many of the same burdens as do members of the civilian community, within the military community there is simply not the same autonomy as there is in the larger civilian community. The military establishment is subject to the control of the civilian Commander in Chief and the civilian departmental heads under him, and its function is to carry out the policies made by those civilian superiors.
Perhaps because of the broader sweep of the Uniform Code, the military makes an effort to advise its personnel of the contents of the Uniform Code, rather than depending on the ancient doctrine that everyone is presumed to know the law. Article 137 of the Uniform Code 10 U.S.C. § 937, requires that the provisions of the Code be 'carefully explained to each enlisted member at the time of his entrance on active duty, or within six days thereafter' and that they be 'explained again after he has completed six months of active duty . . ..' Thus the numerically largest component of the services, the enlisted personnel, who might be expected to be a good deal less familiar with the Uniform Code than commissioned officers, are required by its terms to receive instructions in its provisions. Article 137 further provides that a complete text of the Code and of the regulations prescribed by the President 'shall be made available to any person on active duty, upon his request, for his personal examination.'
With these very significant differences between military law and civilian law and between the military community and the civilian community in mind, we turn to appellee's challenges to the constitutionality of Arts. 133 and 134.
III
Appellee urges that both Art. 133 and Art. 134 (the general article) are 'void for vagueness' under the Due Process Clause of the Fifth Amendment and overbroad in violation of the First Amendment. We have recently said of the vagueness doctrine:
'The doctrine incorporates notions of fair notice or warning. Moreover, it requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent 'arbitrary and discriminatory enforcement.' Where a statute's literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of specificity than in other contexts.' Smith v. Goguen, 415 U.S. 566, 572—573, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605 (1974).
Each of these articles has been construed by the United States Court of Military Appeals or by other military authorities in such a manner as to at least partially narrow its otherwise broad scope.
The United States Court of Military Appeals has stated that Art. 134 must be judged 'not in vacuo, but in the context in which the years have placed it,' United States v. Frantz, 2 U.S.C.M.A. 161, 163, 7 C.M.R. 37, 39 (1953). Article 134 does not mke 'every irregular, mischievous, or improper act a court-martial offense,' United States v. Sadinsky, 14 U.S.C.M.A. 563, 565, 34 C.M.R. 343, 345 (1964), but its reach is limited to conduct that is "directly and palpably—as distinguished from indirectly and remotely—prejudicial to good order and discipline." Ibid; United States v. Holiday, 4 U.S.C.M.A. 454, 456, 16 C.M.R. 28, 30 (1954). It applies only to calls for active opposition to the military policy of the United States, United States v. Priest, 21 U.S.C.M.A. 564, 45 C.M.R. 338 (1972), and does not reach all '(d)isagreement with, or objection to, a policy of the Government.' United States v. Harvey, 19 U.S.C.M.A. 539, 544, 42 C.M.R. 141, 146 (1971).
The Manual for Courts-Martial restates these limitations on the scope of Art. 134.22 It goes on to say that '(c)ertain disloyal statements by military personnel' may be punishable under Art. 134. 'Examples are utterances designed to promote disloyalty or disaffection among troops, as praising the enemy, attacking the war aims of the United States, or denouncing our form of government.'23 Extensive additional interpretative materials are contained in the portions of the Manual devoted to Art. 134, which describe more than sixty illustrative offenses.
The Court of Military Appeals has likewise limited the scope of Art. 133. Quoting from W. Winthrop, Military Law and Precedents (2d ed. 1920), 711—712, that court has stated:
'". . . To constitute therefore the conduct here denounced, the act which forms the basis of the charge must have a double significance and effect.
Though it need not amount to a crime, it must offend so seriously against law, justice, morality or decorum as to expose to disgrace, socially or as a man, the offender, and at the same time must be of such a nature or committed under such circumstances as to bring dishonor or disrepute upon the military profession which he represents.'" United States v. Howe, 17 U.S.C.M.A. 165, 177—178, 37 C.M.R. 429, 441—442 (1967).
The effect of these constructions of Arts. 133 and 134 by the Court of Military Appeals and by other military authorities has been twofold: It has narrowed the very broad reach of the literal language of the articles, and at the same time has supplied considerable specificity by way of examples of the conduct which they cover. It would be idle to pretend that there are not areas within the general confines of the articles' language which have been left vague despite these narrowing constructions. But even though sizable areas of uncertainty as to the coverage of the articles may remain after their official interpretation by authoritative military sources, further content may be supplied even in these areas by less formalized custom and usage. Dynes v. Hoover, 20 How. 65, 15 L.Ed. 838 (1857). And there also cannot be the slightest doubt under the military precedents that there is a substantial range of conduct to which both articles clearly apply without vagueness or imprecision. It is within that range that appellee's conduct squarely falls, as the Court of Appeals recognized:
'Neither are we unmindful that the Manual for Courts-Martial offers as an example of an offense under Article 134, 'praising the enemy, attacking the war aims of the United States, or denouncing our form of government.' With the possible exception of the statement that 'Special Forces personnel are liars and thieves and killers of peasants and murderers of women and children,' it would appear that each statement for which (Levy) was court-martialed could fall within the example given in the Manual.' 478 F.2d, at 794.
The Court of Appeals went on to hold, however, that even though Levy's own conduct was clearly prohibited, the void-for-vagueness doctrine conferred standing upon him to challenge the imprecision of the language of the articles as they might be applied to hypothetical situations outside the considerable area within which their applicability was similarly clear.
We disagree with the Court of Appeals both in its approach to this question and in its resolution of it. This Court has on more than one occasion invalidated statutes under the Due Process Clause of the Fifth or Fourteenth Amendment because they contained no standard whatever by which criminality could be ascertained, and the doctrine of these cases has subsequently acquired the shorthand description of 'void for vagueness.' Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939); Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948). In these cases, the criminal provision is vague 'not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.' Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 214 (1971).
But the Court of Appeals found in this case, and we agree, that Arts. 133 and 134 are subject to no such sweeping condemnation. Levy had fair notice from the language of each article that the particular conduct which he engaged in was punishable. This is a case, then, of the type adverted to in Smith v. Goguen, in which the statutes 'by their terms or as authoritatively construed apply without question to certain activities, but whose application to other behavior is uncertain.' Smith v. Goguen, 415 U.S., at 578, 94 S.Ct., at 1249. The result of the Court of Appeals' conclusion that Levy had standing to challenge the vagueness of these articles as they might be hypothetically applied to the conduct of others, even though he was squarely within their prohibitions, may stem from a blending of the doctrine of vagueness with the doctrine of overbreadth, but we do not believe it is supported by prior decisions of this Court.
We have noted in Smith v. Goguen, id., at 573, 94 S.Ct., at 1247 that more precision in drafting may be required because of the vagueness doctrine in the case of regulation of expression. For the reasons which differentiate military society from civilian society, we think Congress is permitted to legislate both with greater breadth and with greater flexibility when prescribing the rules by which the former shall be governed than it is when prescribing rules for the latter. But each of these differentiations relates to how strict a test of vagueness shall be applied in judging a particular criminal statute. None of them suggests that one who has received fair warning of the criminality of his own conduct from the statute in question is nonetheless entitled to attack it because the language would not give similar fair warning with respect to other conduct which might be within its broad and literal ambit. One to whose conduct a statute clearly applies may not successfully challenge it for vagueness.
Because of the factors differentiating military society from civilian society, we hold that the proper standard of review for a vagueness challenge to the articles of the Code is the standard which applies to criminal statutes regulating economic affairs. Clearly, that standard is met here, for as the Court stated in United States v. National Dairy Products Corp., 372 U.S. 29, 32—33, 83 S.Ct. 594, 597, 9 L.Ed.2d 561 (1963):
'The strong presumptive validity that attaches to an Act of Congress has led this Court to hold many times that statutes are not automatically invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within their language. E.g., Jordan v. De George, 341 U.S. 223, 231, (71 S.Ct. 703, 707, 95 L.Ed. 886) (1951), and United States v. Petrillo, 332 U.S. 1, 7 (67 S.Ct. 1538, 1541, 91 L.Ed. 1877) (1947). Indeed, we have consistently sought an interpretation which supports the constitutionality of legislation. E.g., United States v. Rumely, 345 U.S. 41, 47 (73 S.Ct. 543, 546, 97 L.Ed. 770) (1953); Crowell v. Benson, 285 U.S. 22, 62 (52 S.Ct. 285, 296, 76 L.Ed. 598) (1932); see Screws v. United States, 325 U.S. 91 (65 S.Ct. 1031, 89 L.Ed. 1495) (1945).
'Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed. United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954). In determining the sufficiency of the notice a statute must of necessity be examined in the light of the conduct with which a defendant is charged. Robinson v. United States, 324 U.S. 282, 65 S.Ct. 666, 89 L.Ed. 944 (1945).'
Since appellee could have had no reasonable doubt that his public statements urging Negro enlisted men not to go to Vietnam if ordered to do so were both 'unbecoming an officer and a gentleman,' and 'to the prejudice of good order and discipline in the armed forces,' in violation of the provisions of Art. 133 and Art. 134, respectively, his challenge to them as unconstitutionally vague under the Due Process Clause of the Fifth Amendment must fail.
We likewise reject appellee's contention that Arts. 133 and 134 are facially invalid because of their 'overbreadth.' In Gooding v. Wilson, 405 U.S., at 520—521, 92 S.Ct., at 1105, the Court said:
'It matters not that the words appellee used might have been constitutionally prohibited under a narrowly and precisely drawn statute. At least when statutes regulate or proscribe speech and when 'no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution,' Dombrowski v. Pfister, 380 U.S. 479, 491 (85 S.Ct. 1116, 1123, 14 L.Ed.2d 22) (1965), the transcendent value to all society of constitutionally protected expression is deemed to justify allowing 'attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity' . . ..'
While the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections. The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it. Doctrines of First Amendment overbreadth asserted in support of challenges to imprecise language like that contained in Arts. 133 and 134 are not exempt from the operation of these principles. The United States Court of Military Appeals has sensibly expounded the reason for this different application of First Amendment doctrines in its opinion in United States v. Priest, 21 U.S.C.M.A., at 570, 45 C.M.R., at 344:
'In the armed forces some restrictions exist for reasons that have no counterpart in the civilian community. Disrespectful and contemptuous speech, even advocacy of violent change, is tolerable in the civilian community, for it does not directly affect the capacity of the Government to discharge its responsibilities unless it both is directed to inciting imminent lawless action and is likely to produce such action. Brandenburg v. Ohio (395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969)). In military life, however, other considerations must be weighed. The armed forces depend on a command structure that at times must commit men to combat, not only hazarding their lives but ultimately involving the security of the Nation itself. Speech that is protected in the civil population may nonetheless undermine the effectiveness of response to command. If it does, it is constitutionally unprotected. United States v. Gray (20 U.S.C.M.A. 63, 42 C.M.R. 255 (1970)).'
In Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830 (1973), we said that '(e)mbedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.' We further commented in that case that '(i)n the past, the Court has recognized some limited exceptions to these principles, but only because of the most 'weighty countervailing policies." Id., at 611, 93 S.Ct. at 2915. One of those exceptions 'has been carved out in the area of the First Amendment.' Ibid. In the First Amendment context attacks have been permitted '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,' Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1121, 14 L.Ed.2d 22 (1965).
This Court has, however, repeatedly expressed its reluctance to strike down a statute on its face where there were a substantial number of situations to which it might be validly applied. Thus, even if there are marginal applications in which a statute would infringe on First Amendment values, facial invalidation is inappropriate if the 'remainder of the statute . . . covers a whole range of easily identifiable and constitutionally proscribable . . . conduct . . ..' United States Civil Service Comm'n v. National Association of Letter Carriers, 413 U.S. 548, 580—581, 93 S.Ct. 2880, 2898, 37 L.Ed.2d 796 (1973). And the Court recognized in Broadrick, supra, that 'where conduct and not merely speech is involved' the overbreadth must 'not only be real, bur substantial as well, judged in relation to the statute's plainly legitimate sweep.' 413 U.S., at 615, 93 S.Ct., at 2918. Here, as the Manual makes clear, both Art. 133 and Art. 134 do prohibit a 'whole range of easily identifiable and constitutionally proscribable . . . conduct.'
Both Broadrick and Letter Carriers involved basically noncriminal sanctions imposed on federal and state employees who were otherwise civilians. The Uniform Code of Military Justice applies a series of sanctions, varying from severe criminal penalties to administratively imposed minor sanctions, upon members of the military. However, for the reasons dictating a different application of First Amendment principles in the military context described above, we think that the "weighty countervailing policies," Broadrick, supra, 413 U.S., at 611, 93 S.Ct., at 2915, which permit the extension of standing in First Amendment cases involving civilian society, must be accorded a good deal less weight in the military context.
There is a wide range of the conduct of military personnel to which Arts. 133 and 134 may be applied without infringement of the First Amendment. While there may lurk at the fringes of the articles, even in the light of their narrowing construction by the United States Court of Military Appeals, some possibility that conduct which would be ultimately held to be protected by the First Amendment could be included within their prohibition, we deem this insufficient to invalidate either of them at the behest of appellee. His conduct, that of a commissioned officer publicly urging enlisted personnel to refuse to obey orders which might send them into combat, was unprotected under the most expansive notions of the First Amendment. Articles 133 and 134 may constitutionally prohibit that conduct and a sufficiently large number of similar or related types of conduct so as to preclude their invalidation for overbreadth.
IV
Appellee urges that should we disagree with the Court of Appeals as to the constitutionality of Arts. 133 and 134, we should nonetheless affirm its judgment by invalidating his conviction under Art. 90. He contends that to carry out the hospital commandant's order to train aide men in dermatology would have constituted participation in a war crime, and that the commandant gave the order in question, knowing that it would be disobeyed, for the sole purpose of increasing the punishment which could be imposed upon appellee. The Court of Appeals observed that each of these defenses was recognized under the Uniform Code of Military Justice, but had been resolved against appellee on a factual basis by the court-martial which convicted him. The court went on to say that:
'In isolation, these factual determinations adverse to appellant under an admittedly valid article are not of constitutional significance and resultantly, are beyond our scope of review.' 478 F.2d, at 797.
See Whelchel v. McDonald, 340 U.S. 122, 71 S.Ct. 146, 95 L.Ed. 141 (1950). We agree with the Court of Appeals.
Appellee in his brief here mounts a number of alternative attacks on the sentence imposed by the court-martial, attacks which were not treated by the Court of Appeals in its opinion in this case. To the extent that these points were properly presented to the District Court and preserved on appeal to the Court of Appeals, and to the extent that they are open on federal habeas corpus review of court-martial convictions under Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953), we believe they should be addressed by the Court of Appeals in the first instance.
Reversed.
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE joins, concurring.
I
wholly concur in the Court's opinion. I write only to state what for me is a crucial difference between the majority and dissenting views in this case. My Brother STEWART compolains that men of common intelligence must necessarily speculate as to what 'conduct unbecoming an officer and a gentleman' or conduct to the 'prejudice of good order and discipline in the armed forces' or conduct 'of a nature to bring discredit upon the armed forces' really means. He implies that the average soldier or sailor would not reasonably expect, under the general articles, to suffer military reprimand or punishment for engaging in sexual acts with a chicken, or window peeping in a trailer park, or cheating while calling bingo numbers. Post, at 779. He argues that 'times have surely changed' and that the articles are 'so vague and uncertain as to be incomprehensible to the servicemen who are to be governed by them.' Post, at 781, 788
These assertions are, of course, no less judicial fantasy than that which the dissent charges the majority of indulging. In actuality, what is at issue here are concepts of 'right' and 'wrong' and whether the civil law can accommodate, in special circumstances, a system of law which expects more of the individual in the context of a broader variety of relationships than one finds in civilian life.
In my judgment, times have not changed in the area of moral precepts. Fundamental concepts of right and wrong are the same now as they were under the Articles of the Earl of Essex (1642), or the British Articles of War of 1765, or the American Articles of War of 1775, or during the long line of precedents of this and other courts upholding the general articles. And, however unfortunate it may be, it is still necessary to maintain a disciplined and obedient fighting force.
A
noted commentator, Professor Bishop of Yale, has recently stated that '(a) lmost all of the acts actually charged under (Articles 133 and 134), notably drug offenses, are of a sort which ordinary soldiers know, or should know, to be punishible.' J. Bishop, Justice Under Fire 87—88 (1974). I agree. The subtle airs that govern the command relationship are not always capable of specification. The general articles are essential not only to punish patently criminal conduct, but also to foster an orderly and dutiful fighting force. One need only read the history of the permissive—and shortlived—regime of the Soviet Army in the early days of the Russian Revolution to know that command indulgence of an undisciplined rank and file can decimate a fighting force. Moreover, the fearful specter of arbitrary enforcement of the articles, the engine of the dissent, is disabled, in my view, by the elaborate system of military justice that Congress has provided to servicemen, and by the self-evident, and self-selective, factor that commanders who are arbitrary with their charges will not produce the efficient and effective military organization this county needs and demands for its defense
In Fletcher v. United States, 26 Ct.Cl. 541 (1891), the Court of Claims reviewed a court-martial finding that a Captain Fletcher was guilty of conduct unbecoming an officer in having, "with intent to defraud, failed, neglected, and refused to pay (one W.) the amount due him, though repeatedly requested to do so." The court found this charged offense to come within the article. The sentiments expressed by Judge Nott, writing for the court in that case, are just as applicable to the case we decide today.
'It must be confessed that, in the affairs of civil life and under the rules and principles of municipal law, what we ordinarily know as fraud relates to the obtaining of a man's money, and not to refusing to pay it back. It is hard for the trained lawyer to conceive of an indictment or declaration which should allege that the defendant defrauded A or B by refusing to return to him the money which he had borrowed from him. Our legal training, the legal habit of mind, as it is termed, inclines us to dissociate punishment from acts which the law does not define as offenses. As one of our greatest writers of fiction puts it, with metaphysical fitness and accurate sarcasm, as she describes one of her legal characters, 'His moral horizon was limited by the civil code of Tennessee.' That it is a fraud to obtain a man's money by dishonest representations, but not a fraud to keep it afterwards by any amount of lying and deceit, is a distinction of statutory tracing. The gambler who throws away other people's money and the spendthrift who uses it in luxurious living instead of paying it back, cheat and defraud their creditors as effectually as the knaves and sharpers who drift within the meshes of the criminal law. We learnt as law students in Blackstone that there are things which are malum in se and, in addition to them, things which are merely malum prohibitum; but unhappilly in the affairs of real life we find that there are many things which are malum in se without likewise being malum prohibitum. In military life there is a higher code termed honor, which holds its society to stricter accountability; and it is not desirable that the standard of the Army shall come down to the requirements of a criminal code.' Id., at 562—563.
Relativistic notions of right and wrong, or situation ethics, as some call it, have achieved in recent times a disturbingly high level of prominence in this country, both in the guise of law reform, and as a justification of conduct that persons would normally eschew as immoral and even illegal. The truth is that the moral horizons of the American people are not footloose, or limited solely by 'the civil code of Tennessee.' The law should, in appropriate circumstances, be flexible enough to recognize the moral dimension of man and his instincts concerning that which is honorable, decent, and right.*
Mr. Justice DOUGLAS, dissenting.
Congress by Art. I, § 8, cl. 14, has power 'To make Rules for the Government and Regulation of the land and naval Forces.'
Articles 1331 and 1342 of the Uniform Code of Military Justice, 10 U.S.C. §§ 933 and 934, at issue in this case, trace their legitimacy to that power.
So far as I can discover the only express exemption of a person in the Armed Services from the protection of the Bill of Rights is that contained in the Fifth Amendment which dispenses with the need for 'a presentment or indictment' of a grand jury 'in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.'
By practice and by construction the words 'all criminal prosecutions' in the Sixth Amendment do not necessarily cover all military trials. One result is that the guarantee of the Sixth Amendment of trial 'by an impartial jury' is not applicable to military trials.3 But Judge Ferguson in United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249, properly said:4
'(B)oth the Supreme Court and this Court itself are satisfied as to the applicability of constitutional safeguards to military trials, except insofar as they are made inapplicable either expressly or by necessary implication. The Government, therefore, is correct in conceding the point, and the Judge Advocate General, United States Navy, as amicus curiae, is incorrect in his contrary conclusion. Indeed, as to the latter, it would appear from the authorities on which he relies that the military courts applied what we now know as the constitutional protection against self-incrimination in trials prior to and contemporaneous with the adoption of the Constitution. Hence, we find Major Andre being extended the privilege at his court-martial in 1780. Wigmore, Evidence, 3d ed, § 2251. The same reference was made in the trial of Commodore James Barron in 1808. Proceedings of the General Court Martial Convened for the Trial of Commodore James Barron (1822), page 98. And, the Articles of War of 1776, as amended May 31, 1786, provided for objection by the judge advocate to any question put to the accused, the answer to which might tend to incriminate him. See Winthrop's Military Law and Precedents, 2d ed, 1920 Reprint, pages 196, 972.' 16 U.S.C.M.A., at 634, 37 C.M.R., at 254.
But the cases we have had so far have concerned only the nature of the tribunal which may try a person and/or the procedure to be followed.5 This is the first case that presents to us a question of what protection, if any, the First Amendment gives people in the Armed Services:
On its face there are no exceptions—no preferred classes for whose benefit the First Amendment extends, no exempt classes.
The military by tradition and by necessity demands discipline; and those necessities require obedience in training and in action. A command is speech brigaded with action, and permissible commands may not be disobeyed. There may be a borderland or penumbra that in time can be established by litigated cases.
I
cannot imagine, however, that Congress would think it had the power to authorize the military to curtail the reading list of books, plays, poems, periodicals, papers, and the like which a person in the Armed Services may read. Nor can I believe Congress would assume authority to empower the military to suppress conversations at a bar, ban discussions of public affairs, prevent enlisted men or women or draftees from meeting in discussion groups at times and places and for such periods of time that do not interfere with the performance of military duties
Congress has taken no such step here. By Art. 133 it has allowed punishment for 'conduct unbecoming an officer and a gentleman.' In our society where diversities are supposed to flourish it never could be 'unbecoming' to express one's views, even on the most controversial public issue.
Article 134 covers only 'all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces.'
Captain Levy, the appellee in the present case, was not convicted under Arts. 133 and 134 for failure to give the required medical instructions. But as he walked through the facilities and did his work, or met with students, he spoke of his views of the 'war' in Vietnam. Thus he said:
'The United States is wrong in being involved in the Viet Nam War. I would refuse to go to Viet Nam if ordered to do so. I don't see why any colored soldier would go to Viet Nam; they should refuse to go to Viet Nam and if sent should refuse to fight because they are discriminated against and denied their freedom in the United States, and they are sacrificed and discriminated against in Viet Nam by being given all the hazardous duty and they are suffering the majority of casualties. If I were a colored soldier I would refuse to go to Viet Nam and if I were a colored soldier and were sent I would refuse to fight. Special Forces personnel are liars and thieves and killers of peasants and murderers of women and children.'
Those ideas affronted some of his superiors. The military, of course, tends to produce homogenized individuals who think—as well as march—in unison. In United States v. Blevens, 5 U.S.C.M.A. 480, 18 C.M.R. 104, the Court of Military Appeals upheld the court-martial conviction of a serviceman who had 'affiliated' himself with a Communist organization in Germany. The serviceman argued that there was no allegation that he possessed any intent to overthrow the Government by force, so that the Smith Act, 18 U.S.C. § 2385, would not reach his conduct. The Court of Military Appeals affirmed on the theory that his affiliation, nonetheless, brought 'discredit' on the Armed Forces within the meaning of Art. 134:
'Most important to the case is the Government's contention that regardless of any deficiencies under the Smith Act, the specification properly alleges, and the evidence adequately establishes, conduct to the discredit of the armed forces, in violation of Article 134.
'Membership by a school teacher in an organization advocating the violent disestablishment of the United States Government has been regarded as conduct requiring dismissal. Adler v. Board of Education, 342 U.S. 485 (72 S.Ct. 380, 96 L.Ed. 517). It seems to us that such membership is even more profoundly evil in the case of a person in the military establishment. True, affiliation implies something less than membership (Bridges v. Wixon, 326 U.S. 135, 143 (65 S.Ct. 1443, 89 L.Ed. 2103)), but the supreme duty of the military is the protection and security of the government and of the people. Hence, aside from a specific intent on the part of the accused to overthrow the government by violence, the conduct alleged is definitely discrediting to the armed forces.' 5 U.S.C.M.A., at 483—484, 18 C.M.R., at 107—108.
The limitations on expressions of opinion by members of the military continue to date. During the Vietnam war, a second lieutenant in the reserves, off duty, out of uniform, and off base near a local university, carried a placard in an antiwar demonstration which said 'END JOHNSON'S FACIST (sic) AGGRESSION IN VIET NAM.' He was convicted by a court-martial under Art. 88 for using 'contemptuous words' against the President and under Art. 133 for 'conduct unbecoming an officer.' The Court of Military Appeals affirmed, theorizing that suppression of such speech was essential to prevent a military 'man on a white horse' from challenging 'civilian control of the military.' United States v. Howe, 17 U.S.C.M.A. 165, 175, 37 C.M.R. 429, 439. The Court did not attempt to weigh the likelihood that Howe, a reserve second lieutenant engaging in a single off-base expression of opinion on the most burning political issue of the day, could ever be such a 'man on a white horse.' Indeed, such considerations were irrelevant:
'True, petitioner is a reserve officer, rather than a professional officer, but during the time he serves on active duty he is, and must be, controlled by the provisions of military law. In this instance, military restrictions fall upon a reluctant 'summer soldier'; but at another time, and differing circumstances, the ancient and wise provisions insuring civilian control of the military will restrict the 'man on a white horse." Ibid.
See generally Sherman, The Military Courts And Servicemen's First Amendment Rights, 22 Hastings L.J. 325 (1971.)
The power to draft an army includes, of course, the power to curtail considerably the 'liberty' of the people who make it up. But Congress in these articles has not undertaken to cross the forbidden First Amendment line. Making a speech or comment on one of the most important and controversial public issues of the past two decades cannot by any stretch of dictionary meaning be included in 'disorders and neglects to the prejudice of good order and discipline in the armed forces.' Nor can what Captain Levy said possibly be 'conduct of a nature to bring discredit upon the armed forces.' He was uttering his own belief—an article of faith that he sincerely held. This was no mere ploy to perform a 'subversive' act. Many others who loved their country shared his views. They were not saboteurs. Uttering one's beliefs is sacrosanct under the First Amendment.6 Punishing the utterances is an 'abridgment' of speech in the constitutional sense.
Mr. Justice STEWART, with whom Mr. Justice DOUGLAS and Mr. Justice BRENNAN join, dissenting.
Article 133 of the Uniform Code of Military Justice, 10 U.S.C. § 933, makes it a criminal offense to engage in 'conduct unbecoming an officer and a gentleman.'1 Article 134, 10 U.S.C. § 934 makes criminal 'all disorders and neglects to the prejudice of good order and discipline in the armed forces' and 'all conduct of a nature to bring discredit upon the armed forces.'2 The Court today, reversing a unanimous judgment of the Court of Appeals, upholds the constitutionality of these statutes. I find it hard to imagine criminal statutes more patently unconstitutional than these vague and uncertain general articles, and I would, accordingly, affirm the judgment before us.
*
As many decisions of this Court make clear, vague statutes suffer from at least two fatal constitutional defects. First, by failing to provide fair notice of precisely what acts are forbidden, a vague statute 'violates the first essential of due process of law.' Connally v. Gen eral Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322. As the Court put the matter in Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888: 'No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.' 'Words which are vague and fluid . . . may be as much of a trap for the innocent as the ancient laws of Caligula.' United States v. Cardiff, 344 U.S. 174, 176, 73 S.Ct. 189, 190, 97 L.Ed. 2003
Secondly, vague statutes offend due process by failing to provide explicit standards for those who enforce them thus allowing discriminatory and arbitrary enforcement. Papachristou v. City of Jacksonville, 405 U.S. 156, 165—171, 92 S.Ct. 839, 845 848, 31 L.Ed.2d 110. 'A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis . . ..' Grayned v. City of Rockford, 408 U.S. 104, 108—109, 92 S.Ct. 2294, 2299, 33 L.Ed.2d 222.4 The absence of specificity in a criminal statute invites abuse on the part of prosecuting officials, who are left free to harass any individuals or groups who may be the object of official displeasure.5
It is plain that Arts. 133 and 134 are vague on their face; indeed, the opinion of the Court does not seriously contend to the contrary.6 Men of common intelligence—including judges of both military and civilian courts—must necessarily speculate as to what such terms as 'conduct unbecoming an officer and a gentleman' and 'conduct of a nature to bring discredit upon the armed forces' really mean. In the past, this Court has held unconstitutional statutes penalizing 'misconduct,'7 conduct that was 'annoying,'8 'reprehensible,'9 or 'prejudicial to the best interests' of a city,10 and it is significant that military courts have resorted to several of these very terms in describing the sort of acts proscribed by Arts. 133 and 134.11
Facially vague statutes may, of course, be saved from unconstitutionality by narrowing judicial construction. But I cannot conclude, as does the Court, ante, at 752—755, that the facial vagueness of the general articles has been cured by the relevant opinions of either the Court of Military Appeals or any other military tribunal. In attempting to give meaning to the amorphous words of the statutes, the Court of Military Appeals has repeatedly turned to Winthrop's Military Law and Precedents, an 1886 treatise. That work describes 'conduct unbecoming an officer and a gentleman' in the following manner:
'To constitute therefore the conduct here denounced, the act which forms the basis of the charge must have a double significance and effect. Though it need not amount to a crime, it must offend so seriously against law, justice, morality or decorum as to expose of disgrace, socially or as a man, the offender, and at the same time must be of such a nature or committed under such circumstances as to bring dishonor or disrepute upon the military profession which he represents.'12
As to the predecessor statute of Art. 134, Col. Winthrop read it as applicable to conduct whose prejudice to good order and discipline was 'reasonably direct and palpable,' as opposed to that conduct which is simply 'indirectly or remotely' prejudicial whatever that may mean.13 These passages, and the decisions of the Court of Military Appeals that adopt them verbatim, scarcely add any substantive content to the language of the general articles. At best, the limiting constructions referred to by the Court represent a valiant but unavailing effort to read some specificity into hopelessly vague laws. Winthrop's definitions may be slightly different in wording from Arts. 133 and 134, but they are not different in kind, for they suffer from the same vagueness as the statutes to which they refer.
If there be any doubt as to the absence of truly limiting constructions of the general articles, it is swiftly dispelled by even the most cursory review of convictions under them in the military courts. Article 133 has been recently employed to punish such widely disparate conduct as dishonorable failure to repay debts,14 selling whiskey at an unconscionable price to an enlisted man,15 cheating at cards,16 and having an extramarital affair.17 Article 134 has been given an even wider sweep, having been applied to sexual acts with a chicken,18 window peeping in a trailer park,19 and cheating while calling bingo numbers.20 Convictions such as these leave little doubt that '(a)n infinite variety of other conduct, limited only by the scope of a commander's creativity or spleen, can be made the subject of court-martial under these articles.' Sherman, The Civilianization of Military Law, 22 Maine L.Rev. 3, 80.
In short, the general articles are in practice as well as theory 'catch-alls,' designed to allow prosecutions for practically any conduct that may offend the sensibilities of a military commander.21 Not every prosecution of course, results in a conviction, and the military courts have sometimes overturned convictions when the conduct involved was so marginally related to military discipline as to offend even the loosest interpretations of the General Articles.22 But these circumstances can hardly be thought to validate the otherwise vague statutes. As the Court said in United States v. Reese, 92 U.S. 214, 221, 23 L.Ed. 563: 'It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large.' At best, the General Articles are just such a net, and suffer from all the vices that our previous decisions condemn.
II
Perhaps in recognition of the essential vagueness of the general articles, the Court today adopts several rather periphrastic approaches to the problem before us. Whatever the apparent vagueness of these statutes to us civilians, we are told, they are models of clarity to "practical men in the navy and army." Ante, at 747, quoting from Dynes v. Hoover, 20 How. 65, 82, 15 L.Ed. 838. Moreover, the Court says, the appellee should have been well aware that his conduct fell within the proscriptions of the general articles, since the Manual for Courts-Martial gives specific content to these facially uncertain statutes. I believe that neither of these propositions can withstand analysis.
A
It is true, of course, that a line of prior decisions of this Court, beginning with Dynes v. Hoover, supra, in 1858 and concluding with Carter v. McClaughry, 183 U.S. 365, 22 S.Ct. 181, 46 L.Ed. 236, in 1902, have upheld against constitutional attack the ancestors of today's general articles.23 With all respect for the principle of stare decisis, however, I believe that these decisions should be given no authoritative force in view of what is manifestly a vastly 'altered historic environment.' Mitchell v. W. T. Grant Co., 416 U.S. 600, 634—635, 94 S.Ct. 1895, 1913, 40 L.Ed.2d 406 (dissenting opinion). See also id., at 627—628, 94 S.Ct., at 1909—1910 (Powell, J., concurring).
It is obvious that the Army into which Dr. Levy entered was far different. It was part of a military
It might well have been true in 1858 or even 1902 that those in the Armed Services knew, through a combination of military custom and instinct, what sorts of acts fell within the purview of the general articles. But times have surely changed. Throughout much of this country's early history, the standing army and navy numbered in the hundreds. The cadre was small, professional, the voluntary. The military was a unique society, isolated from the mainstream of civilian life, and it is at least plausible to suppose that the volunteer in that era understood what conduct was prohibited by the general articles.24 establishment whose members numbered in the millions, a large percentage of whom were conscripts or draft-induced volunteers, with no prior military experience and little expectation of remaining beyond their initial period of obligation.25 Levy was precisely such an individual, a draft-induced volunteer whose military indoctrination was minimal, at best.26 To presume that he and others like him who served during the Vietnam era were so imbued with the ancient traditions of the military as to comprehend the arcane meaning of the general articles is to engage in an act of judicial fantasy.27 In my view, we do a grave disservice to citizen soldiers in subjecting them to the uncertain regime of Arts. 133 and 134 simply because these provisions did not offend the sensibilities of the federal judiciary in a wholly different period of our history. In today's vastly 'altered historic environment,' the Dynes case and its progeny have become constitutional anachronisms, and I would retire them from active service.
B
The Court suggests that the Manual for Courts-Martial provides some notice of what is proscribed by the general articles, through its Appendix containing 'Forms for Charges and Specifications.'28 These specimen charges, which consist of 'fill-in-the-blank' accusations covering various fact situations, do offer some indication of what conduct the drafters of the Manual perceived to fall within the prohibitions of Arts. 133 and 134. There are several reasons, however, why the form specifications cannot provide the sort of definitive interpretation of the general articles necessary to save these statutes from unconstitutionality.
For one thing, the specifications covering Arts. 133 and 134 are not exclusive; the military courts have repeatedly held conduct not listed in the Manual's Appendix as nonetheless violative of the general articles.29 Nor can it be said that the specifications contain any common threat or unifying theme that gives generic definition to the articles' vague words; the specimen charges in the Manual list such widely disparate conduct as kicking a public horse in the belly,30 subornation of perjury,31 and wrongful cohabitation32 as violative of Art. 134.33 Moreover, the list of offenses included in the Appendix is ever-expanding; the 1951 Manual contained 59 Art. 134 offenses,34 while the list had increased to 63 in 1969.35 In view of the nonexclusive and transient character of the specification list, a serviceman wishing to conform his conduct to the requirements of the law would simply find definitive guidance from the Manual Impossible.
More significantly, the fact that certain conduct is listed in the Manual is no guarantee that it is in violation of the general articles. The Court of Military Appeals has repeatedly emphasized that the sample specifications are only procedural guides and timesavers for military prosecutors beset by poor research facilities, and are not intended to create offenses under the general articles.36 Consequently, the court has on several occasions disapproved Art. 134 convictions, despite the fact that the precise conduct at issue was listed in the form specifications as falling under that article.37
Despite all this, the Court indicates that Levy should have been aware that his conduct was violative of Art. 134, since one of the specimen charges relates to the making of statements 'disloyal to the United States.'38 That specification, and the brief reference to such conduct in the text of the Manual,39 is itself so vague and overbroad as to have been declared unconstitutional by one federal court. Stolte v. Laird, 353 F.Supp. 1392 (DC). But even if a consensus as to the meaning of the word 'disloyal' were readily attainable, I am less than confident that Dr. Levy's attacks upon our Vietnam policies could be accurately characterized by such an adjective. However, foreign to the military atmosphere of Fort Jackson, the words spoken by him represented a viewpoint shared by many American citizens. Whatever the accuracy of these views, I would be loath to impute 'disloyalty' to those who honestly held them. In short, I think it is clear that the form specification concerning disloyal statements cannot be said to have given Levy notice of the illegality of his conduct. The specimen charge is no better than the article that spawned it. It merely substitutes one set of subjective and amorphous phraseology for another.40
III
What has been said above indicates my view that the general articles are unconstitutionally vague under the standards normally and repeatedly applied by this Court. The remaining question is whether, as the Court concludes, ante, at 756, the peculiar situation of the military requires application of a standard of judicial review more relaxed than that embodied in our prior decisions.
It is of course common ground that the military is a 'specialized community governed by a separate discipline from that of the civilian.' Orloff v. Willoughby, 345 U.S. 83, 94, 73 S.Ct.534, 540, 97 L.Ed. 842. A number of serviceman's individual rights must necessarily be subordinated to the overriding military mission, and I have no doubt that the military may constitutionally prohibit conduct that is quite permissible in civilian life, such as questioning the command of a superior. But this only begins the inquiry. The question before us is not whether the military may adopt substantive rules different from those that govern civilian society, but whether the serviceman has the same right as his civilian counterpart to be informed as to precisely what conduct those rules proscribe before he can be criminally punished for violating them. More specifically, the issue is whether the vagueness of the general articles is required to serve a genuine military objective.
The Solicitor General suggests that a certain amount of vagueness in the general articles is necessary in order to maintain high standards of conduct in the military, since it is impossible to predict in advance every offense that might serve to affect morale or discredit the service. It seems to me that this argument was concisely and eloquently rebutted by Judge Aldisert in the Court of Appeals, 478 F.2d 772, 795 (CA 3):
'(W)hat high standard of conduct is served by convicting an individual of conduct he did not reasonable perceive to be criminal? Is not the essence of high standards in the military, first, knowing one's duty, and secondly, executing it? And, in this regard, would not an even higher standard be served by delineation of the various offenses under Article 134, following by obedience to these standards?'
It may be that military necessity justifies the promulgation of substantive rules of law that are wholly foreign to civilian life, but I fail to perceive how any legitimate military goal is served by enshrouding these rules in language so vague and uncertain as to be incomprehensible to the servicemen who are to be governed by them.41 Indeed, I should suppose that vague laws, with their serious capacity for arbitrary and discriminatory enforcement, can in the end only hamper the military's objectives of high morale and esprit de corps.
In short, I think no case has been made for finding that there is any legitimate military necessity for perpetuation of the vague and amorphous general articles. In this regard, I am not alone. No less an authority than Kenneth J. Hodson, former Judge Advocate General of the Army and Chief Judge of the Army Court of Military Review, has recommended the abolition of Art. 134 because '(w)e don't really need it, and we can't defend our use of it in this modern world.' Hodson, The Manual for Courts-Martial—1984, 57 Military L.Rev. 1, 12.42 No different conclusion can be reached as to Art. 133. Both are anachronisms, whose legitimate military usefulness, if any, has long since disappeared.
It is perhaps appropriate to add a final word. I do not for one moment denigrate the importance of our inherited tradition that the commissioned officers of our military forces are expected to be men of honor, nor do I doubt the necessity that servicemen generally must be orderly and dutiful. An efficient and effective military organization depends in large part upon the character and quality of its personnel, particularly its leadership. The internal loyalty and mutual reliance indispensable to the ultimate effectiveness of any military organization can exist only among people who can be counted on to do their duty.
It is, therefore, not only legitimate but essential that in matters of promotion, retention, duty assignment, and internal discipline, evaluations must repeatedly be made of a serviceman's basic character as reflected in his deportment, whether he be an enlisted man or a commissioned officer. But we deal here with criminal statutes. And I cannot believe that such meaningless statutes as these can be used to send men to prison under a Constitution that guarantees due process of law.
1
See 50 U.S.C. App. § 454(j).
2
Article 90 of the Uniform Code of Military Justice, 10 U.S.C. § 890, provides:
'Any person subject to this chapter who—
'(1) strikes his superior commissioned officer or draws or lifts up any weapon or offers any violence against him while he is in the execution of his office; or
'(2) willfully disobeys a lawful command of his superior commissioned officer;
'shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, and if the offense is committed at any other time, by such punishment, other than death, as a court-martial may direct.'
3
Article 133 of the Uniform Code of Military Justice, 10 U.S.C. § 933, provides:
'Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct.'
4
Article 134 of the Uniform Code of Military Justice, 10 U.S.C. § 934, provides:
'Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.'
5
The specification under Art. 134 (Charge II) alleged in full:
'In that Captain Howard B. Levy, U.S. Army, Headquarters and Headquartes Company, United States Army Hospital, Fort Jackson, South Carolina, did, at Fort Jackson, South Carolina, on or about the period February 1966 to December 1966, with design to promote disloyalty and disaffection among the troops, publicly utter the following statements to divers enlisted personnel at divers times: 'The United States is wrong in being involved in the Viet Nam War. I would refuse to go to Viet Nam if ordered to do so. I don't see why any colored soldier would go to Viet Nam; they should refuse to go to Viet Nam and if sent should refuse to fight because they are discriminated against and denied their freedom in the United States, and they are sacrificed and discriminated against in Viet Nam by being given all the hazardous duty and they are suffering the majority of casualties. If I were a colored soldier I would refuse to go to Viet Nam and if I were a colored soldier and were sent I would refuse to fight. Special Forces personnel are liars and thieves and killers of peasants and murderers of women and children,' or words to that effect, which statements were disloyal to the United States, to the prejudice of good order and discipline in the armed forces.'
6
The specification under Art. 133 (Additional Charge I) alleged tht appellee
'did . . . at divers times during the period from on or about February 1966 to on or about December 1966 while in the performance of his duties at the United States Army Hospital, Fort Jackson, South Carolina, wrongfully and dishonorably make the following statements of the nature and to and in the presence and hearing of the persons as hereinafter more particularly described, to wit: (1) Intemperate, defamatory, provoking, and disloyal statements to special forces enlisted personnel present for training in the United States Army Hospital, Fort Jackson, South Carolina, and in the presence and hearing of other enlisted personnel, both patients and those performing duty under his immediate supervision and control and dependent patients as follows: 'I will not train special forces personnel because they are 'liars and thieves,' 'killers of peasants,' and 'murderers of women and children," or words to that effect; (2) Intemperate and disloyal statements to enlisted personnel, both patients and those performing duty under his immediate supervision and control as follows: 'I would refuse to go to Vietnam if ordered to do so. I do not see why any colored soldier would go to Vietnam. They should refuse to go to Vietnam; and, if sent, they should refuse to fight because they are discriminated against and denied their freedom in the United States and they are sacrificed and discriminated against in Vietnam by being given all the hazardous duty, and they are suffering the majority of casualties. If I were a colored soldier, I would refuse to go to Vietnam; and, if I were a colored soldier and if I were sent to Vietnam, I would refuse to fight', or words to that effect; (3) Intemperate, contemptuous, and disrespectful statements to enlisted personnel performing duty under his immediate supervision and control, as follows: 'The Hospital Commander has given me an order to train special forces personnel, which order I have refused and will not obey,' or words to that effect; (4) Intemperate, defamatory, provoking, and disloyal statements to special forces personnel in the presence and hearing of enlisted personnel performing duty under his immediate supervision and control, as follows: 'I hope when you get to Vietnam something happens to you and you are injured,' or words to that effect; all of which statements were made to persons who knew that the said Howard B. Levy was a commissioned officer in the active service of the United States Army.'
7
United States v. Levy, CM 416463, 39 C.M.R. 672 (1968), petition for review denied, No. 21,641, 18 U.S.C.M.A. 627 (1969). Appellee also unsuccessfully sought relief in the civilian courts. Levy v. Corcoran, 128 U.S.App.D.C. 388, 389 F.2d 929, application for stay denied, 387 U.S. 915, 87 S.Ct. 2026, 18 L.Ed.2d 968, cert. denied, 389 U.S. 960, 88 S.Ct. 337, 19 L.Ed.2d 369 (1967); Levy v. Resor, 17 U.S.C.M.A. 135, 37 C.M.R. 399 (1967); Levy v. Resor, Civ. No. 67—442 (SC July 5, 1967), aff'd per curiam, 384 F.2d 689 (CA4 1967), cert. denied, 389 U.S. 1049, 88 S.Ct. 789, 19 L.Ed.2d 843 (1968); Levy v. Dillon, 286 F.Supp. 593 (DC Kan.1968), aff'd, 415 F.2d 1263 (CA10 1969).
10
Title 28 U.S.C. § 1252 provides in pertinent part that '(a)ny party may appeal to the Supreme Court from an interlocutory or final judgment, decree or order of any court of the United States, . . . holding an Act of Congress unconstitutional in any civil action, suit, or proceeding to which the United States or any of its agencies, or any officer or employee thereof, as such officer or employee, is a party. . . .' In his motion to dismiss or affirm, appellee urged a lack of jurisdiction in this Court because the attorneys who filed and served the notice of appeal were not attorneys of record and because the attorney effecting service failed to comply with Rule 33, subd. 3(c) of this Court requiring persons not admitted to the Bar of this Court to prove service by affidavit, rather than by certificate. Appellee alternatively contended that 28 U.S.C. § 1252 was not intended to permit appeals from the courts of appeals, but only from the district courts. We postponed consideration of the jurisdictional question to the hearing on the merits. Appellee now renews his contentions that the asserted defects in appellants' filing of their
notice of appeal should be treated as a failure to file a timely notice of appeal, and that the appeal must accordingly be dismissed. See, e.g., Territo v. United States, 358 U.S. 279, 79 S.Ct. 312, 3 L.Ed.2d 298 (1959); Department of Banking v. Pink, 317 U.S. 264, 268, 63 S.Ct. 233, 235, 87 L.Ed. 254 (1942). He also urges that the question whether an appeal may be taken to this Court from the Court of Appeals under 28 U.S.C. § 1252 presents a question of first impression.
We hold that 'any court of the United States,' as used in § 1252, includes the courts of appeals. The Reviser's Note for § 1252 states that the 'term 'any court of the United States' includes the courts of appeals . . ..' The definitional section of Title 28, 28 U.S.C. § 451, provides: 'As used in this title: The term 'court of the United States' includes the Supreme Court of the United States, courts of appeals, district courts . . ..' Our reading of § 1252 is further supported by that section's legislative history. Section 1252 was originally enacted as § 2 of the Act of August 24, 1937, c. 754, 50 Stat. 751. Section 5 of that same Act defined 'any court of the United States' to include any 'circuit court of appeals.' We also find no merit in appellee's contention that the asserted defects in appellants' notice of appeal deprive this Court of jusisdiction. As appellants note, appellee makes no claim that he did not have actual notice of the filing of the notice of appeal. Assuming that there was technical noncompliance with Rule 33 of this Court for the reasons urged by appellee, that noncompliance does not deprive this Court of jurisdiction. Cf. Taglianetti v. United States, 394 U.S. 316 n. 1, 89 S.Ct. 1099, 22 L.Ed.2d 302 (1969); Heflin v. United States, 358 U.S. 415, 418 n. 7, 79 S.Ct. 451, 453, 3 L.Ed.2d 407 (1959).
11
Section XX, Art. III, of the British Articles of War of 1765; W. Winthrop, Military Law and Precedents 946 (2d ed. 1920).
12
Section XV, Art. XXIII, of the British Articles of War of 1765; Winthrop, supra, at 945.
13
Article XLVII of the American Articles of War of 1775; Winthrop, supra, at 957.
14
Id., at 22.
15
Article 21 of Section XIV of the American Articles of War of 1776; Winthrop, supra, at 969.
16
Article 83 of Section 1 of the American Articles of War of 1806; Winthrop, supra, at 983.
17
Article L of the American Articles of War of 1775, Art. 5 of section XVIII of the American Articles of War of 1776; Winthrop, supra, at 957, 971.
18
Act of Aug. 29, 1916, c. 418, 39 Stat. 619, 666.
19
Fletcher v. United States, 26 Ct.Cl. 541, 563 (1891).
20
Swaim v. United States, 28 Ct.Cl. 173, 228 (1893).
21
Art. 15(a), 10 U.S.C. § 815(a).
22
Manual for Courts-Martial 213c (1969).
23
Id., 213f(5).
*
My Brother DOUGLAS' rendition of Captain Levy's offense in this case would leave one to believe that Levy was punished for speaking against the Vietnam war at an Army wives' tea party. In fact, Levy was convicted under charges that he, while in the performance of his duties at the United States Army Hospital in Fort Jackson, South Carolina, told the enlisted personnel in his charge that he would not train Special Forces aide men 'because they are 'liars and thieves,' 'killers of peasants,' and 'murderers of women and children." He also stated, in the presence of patients and those performing duty under his immediate supervision, that he would refuse to go to Vietnam if ordered to do so and they should refuse to do so. Moreover, after being ordered to give dermatological training to aide men, he announced to his students that '(t)he Hospital Commander has given me an order to train special forces personnel, which order I have refused and will not obey.' Unless one is to blind one's eyes in utter worship of the First Amendment, it needs no explication that these disloyal statements and actions undertaken by an officer in the course of duty, are subject to sanction.
1
'Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct.'
2
'Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.'
3
O'Callahan v. Parker, 395 U.S. 258, 262, 89 S.Ct. 1683, 1685, 23 L.Ed. 291, stated:
'If the case does not arise 'in the land or naval forces,' then the accused gets first, the benefit of an indictment by a grand jury and second, a trial by jury before a civilian court as guaranteed by the Sixth Amendment and by Art. III, § 2, of the Constitution which provides in part:
"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."
4
The Court of Military Appeals has held that the 'probable cause' aspect of the Fourth Amendment is applicable to military trials. See, e.g., United States v. Battista, 14 U.S.C.M.A. 70, 33 C.M.R. 282; United States v. Gebhart, 10 U.S.C.M.A. 606, 28 C.M.R. 172; United States v. Brown, 10 U.S.C.M.A. 482, 28 C.M.R. 48.
It has been held that the right to counsel under the Sixth Amendment extends to military trials, see United States v. Culp, 14 U.S.C.M.A. 199, 216—217, 219, 33 C.M.R. 411, 428—429, 431 (opinions of Quinn, C.J., Ferguson, J.).
There are rulings also that freedom of speech protects, to some extent at least, those in the Armed Services. United States v. Wysong, 9 U.S.C.M.A. 249, 26 C.M.R. 29, and see United States v. Gray, 20 U.S.C.M.A. 63, 42 C.M.R. 255.
5
See, e.g., O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291; McElroy v. United States ex rel. Guagliardo, 361 U.S. 281, 80 S.Ct. 305, 4 L.Ed.2d 282; Grisham v. Hagan, 361 U.S. 278, 80 S.Ct. 310, 4 L.Ed.2d 279; Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 80 S.Ct. 297, 4 L.Ed.2d 268; Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148; United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8; Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 2, 87 L.Ed. 3.
'Congress shall make no law . . . abridging the freedom of speech, or of the press.'
6
The words of Mr. Justice Holmes written in dissent in United States v. Schwimmer, 279 U.S. 644, 654—655, 49 S.Ct. 448, 451, 73 L.Ed. 889, need to be recalled:
'(T)he whole examination of the applicant shows that she holds none of the now-dreaded creeds but thoroughly believes in organized government and prefers that of the United States to any other in the world. Surely it cannot show lack of attachment to the principles of the Constitution that she thinks that it can be improved. I suppose that most intelligent people think that it might be. Her particular improvement looking to the abolition of war seems to me not materially different in its bearing on this case from a wish to establish cabinet government as in England, or a single house, or one term of seven years for the President. To touch a more burning question, only a judge mad with partisanship would exclude because the applicant thought that the Eighteenth Amendment should be repealed.
'Of course the fear is that if a war came the applicant would exert activities such as were dealt with in Schenck v. United States,
249 U.S. 47 (39 S.Ct. 247, 63 L.Ed. 470). But that seems to me unfounded. Her position and motives are wholly different from those of Schenck. She is an optimist and states in strong and, I do not doubt, sincere words her belief that war will disappear and that the impending destiny of mankind is to unite in peaceful leagues. I do not share that optimism nor do I think that a philosophic view of the world would regard war as absurd. But most people who have known it regard it with horror, as a last resort, and even if not yet ready for cosmopolitan efforts would welcome any practicable combinations that would increase the power on the side of peace. The notion that the applicant's optimistic anticipations would make her a worse citizen is sufficiently answered by her examination, which seems to me a better argument for her admission than any that I can offer. Some of her answers might excite popular prejudice, but if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate. I think that we should adhere to that principle with regard to admission into, as well as to life within this country. And recurring to the opinion that bars this applicant's way, I would suggest that the Quakers have done their share to make the country what it is, that many citizens agree with the applicant's belief and that I had not supposed hitherto that we regretted our inability to expel them because they believe more than some of us do in the teachings of the Sermon on the Mount.'
That dissent by Holmes became the law when Schwimmer, supra, United States v. Macintosh, 283 U.S. 605, 51 S.Ct. 570, 75 L.Ed. 1302, and United States v. Bland, 283 U.S. 636, 51 S.Ct. 569, 75 L.Ed. 1319, were overruled by Girouard v. United States, 328 U.S. 61, 66 S.Ct. 826, 90 L.Ed. 1084.
1
Article 133 provides:
'Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct.'
2
Article 134 provides:
'Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.'
The clause in Art. 134 prohibiting all 'crimes and offenses not capital' applies only to crimes and offenses proscribed by Congress. See Manual for Courts-Martial 213(e) (1969) (hereinafter sometimes referred to as Manual). Cf. Grafton v. United States, 206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084. As such, this clause is simply assimilative, like 18 U.S.C. § 13, and is not the subject of the vagueness attack mounted by appellee on the balance of Art. 134. See generally Wiener, Are the General Military Articles Unconstitutionally Vague?, 54 A.B.A.J. 357, 358; Note, Taps for the Real Catch-22, 81 Yale L.J. 1518 n. 3.
While only Art. 134 is expressly termed the 'general article,' Arts. 133 and 134 are commonly known as the 'general articles' and will be so referred to herein.
3
See also United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989:
'The 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.'
4
See also Smith v. Goguen, 145 U.S. 566, 575, 94 S.Ct. 1242, 1248:
'Statutory language of such a standardless sweep allows policemen, prosecutors, and juries to pursue their personal predilections. Legislatures may not so abdicate their responsibilities for setting the standards of the criminal law.'
5
This Court has repeatedly recognized that the dangers inherent in vague statutes are magnified where laws touch upon First Amendment freedoms. See, e.g., id., at 573, 94 S.Ct., at 1247; Grayned v. City of Rockford, 408 U.S. 104, 109, 92 S.Ct. 2294, 2299, 33 L.Ed.2d 222. In such areas, more precise statutory specificity is required, lest cautions citizens steer clear of rotected conduct in order to be certain of not violating the law. See generally Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67, 75—85.
6
Even one of the staunchest defenders of the general articles has recognized that:
'It cannot be denied that there is language in the void-for-vagueness cases broad enough to condemn as unduly indefinite the prohibition in Article 133 against 'conduct unbecoming an officer and a gentleman' and the prohibitions in Article 134 against 'all disorders and neglects to the prejudice of good order and discipline in the armed forces' and against 'all conduct of a nature to bring discredit upon the armed forces." Wiener, supra, n. 2, at 363.
7
Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447.
8
Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214.
9
Giaccio v. Pennsylvania, supra.
10
Gelling v. Texas, 343 U.S. 960, 72 S.Ct. 1002, 96 L.Ed. 1359. Other federal courts have similarly held unconstitutional statutes containing language such as 'reflect(s) discredit,' Flynn v. Giarrusso, 321 F.Supp. 1295 (E.D.La.); 'offensive,' Pritikin v. Thurman, 311 F.Supp. 1400 (S.D.Fla.); and 'immoral' or 'demoralizing,' Oestreich v. Hale, 321 F.Supp. 445 (E.D.Wis.).
11
See, e.g., United States v. Lee, 4 C.M.R. 185, 191 (ABR), petition for review denied, 1 U.S.C.M.A. 713, 4 C.M.R. 173 ('reprehensible conduct'); United States v. Rio Poon, 26 C.M.R. 830, 833 (CGBR) ('universally reprehended'). See also Note, Taps for the Real Catch-22, 81 Yale L.J. 1518, 1522.
12
W. Winthrop, Military Law and Precedents 711—712 (2d ed. 1970). The cited language is quoted in United States v. Howe, 17 U.S.C.M.A. 165, 177—178, 37 C.M.R. 429, 441—442, and in United States v. Giordano, 15 U.S.C.M.A. 163, 168, 35 C.M.R. 135, 140.
Such authoritative publications as The Officer's Guide do little better in defining 'conduct unbecoming an officer and a gentleman':
'There are certain moral attributes which belong to the ideal officer and the gentleman, a lack of which is indicated by acts of dishonesty or unfair dealing, of indecency or indecorum, or of lawlessness, injustice, or cruelty. Not every one can be expected to meet ideal standards or to possess the attributes in the exact degree demanded by the standards of his own time; but there is a limit of tolerance below which the individual standards in these respects of an officer or cadet cannot fall within his being morally unfit to be an officer or cadet or to be considered a gentleman. This article contemplates such conduct by an officer or cadet which, taking all the circumstances into consideration, satisfactorily shows such moral unfitness.' R. Reynolds, The Officer's Guide 435—436 (1969 rev.).
This language is substantially repeated in Manual 212.
13
W. Winthrop, Military Law and Precedents 723 (2d ed. 1920). For cases embodying these definitions, see United States v. Sadinsky, 14 U.S.C.M.A. 563, 34 C.M.R. 343; United States v. Holiday, 4 U.S.C.M.A. 454, 16 C.M.R. 28. See also Manual 213(b), containing identical language.
14
United States v. Journell, 18 C.M.R. 752 (AFBR).
15
United States v. Kupfer, 9 C.M.R. 283 (ABR), aff'd, 3 U.S.C.M.A. 478, 13 C.M.R. 34.
16
United States v. West, 16 C.M.R. 587 (AFBR), petition for review denied, 4 U.S.C.M.A. 744, 20 C.M.R. 398.
17
United States v. Alcantara, 39 C.M.R. 682 (ABR), aff'd, 18 U.S.C.M.A. 372, 40 C.M.R. 84.
For a listing of other representative convictions under Art. 133, see H. Moyer, Justice and the Military 1028—1034 (1972). See also Nelson, Conduct Expected of an Officer and a Gentleman: Ambiguity, 12 AF JAG L.Rev. 124.
18
United States v. Sanchez, 11 U.S.C.M.A. 216, 29 C.M.R. 32.
19
United States v. Clark, 22 C.M.R. 888 (AFBR), petition for review denied, 7 U.S.C.M.A. 790, 22 C.M.R. 331.
20
United States v. Holt, 7 U.S.C.M.A. 617, 23 C.M.R. 81.
21
The drafters of the Manual for Courts-Martial have admitted as much, characterizing the discredit clause of Art. 134 as the 'catch-all' in military law. Legal and Legislative Basis, Manual for Courts-Martial United States 294 (1951). Admitting that the language of Art. 134 is 'vague,' the drafters state:
'By judicial interpretation these 'vague words' have since been expanded from the narrow construction placed on them by their author to the point where they have been used as the legal justification to sustain convictions for practically any offense committed by one in the military service which is not either specifically denounced by some other article, or is not a crime or offense not capital or a disorder or neglect to the prejudice of good order and discipline.' Id., at 295.
22
See, e.g., United States v. Ford, 31 C.M.R. 353 (ABR), petition for review denied, 12 U.S.C.M.A. 763, 31 C.M.R. 314 (conviction under Art. 133 for showing an allegedly obscene photograph to a friend in a private home reversed); United States v. Waluski, 6 U.S.C.M.A. 724, 21 C.M.R. 46 (conviction under Art. 134 of passenger for leaving scene of accident reversed).
23
See also Swaim v. United States, 165 U.S. 553, 17 S.Ct. 448, 41 L.Ed. 823; United States v. Fletcher, 148 U.S. 84, 13 S.Ct. 552, 37 L.Ed. 378; Smith v. Whitney, 116 U.S. 167, 6 S.Ct. 570, 29 L.Ed.601.
24
See generally Comment, The Discredit Clause of the UCMJ: An Unrestricted Anachronism, 18 U.C.L.A.L.Rev. 821, 833—837. Cf. Warren, The Bill of Rights and the Military, 37 N.Y.U.L.Rev. 181, 187—188; Wiener, Courts-Martial and the Bill of Rights: The Original Practice II, 72 Harv.L.Rev. 266, 292, 301—302.
25
See Comment, 18 U.C.L.A.L.Rev. supra, at 836. Cf. Avrech v. Secretary of the Navy, 155 U.S.App.D.C. 352, 357, 477 F.2d 1237, 1242 (Clark, J.), prob. juris. noted, 414 U.S. 816, 94 S.Ct. 64, 38 L.Ed.2d 48.
26
The record indicates that Dr. Levy, unlike many other medical officers entering active duty, did not attend the basic military orientation course at Fort Sam Houston, Texas. Instead, he came to Fort Jackson directly from civilian life. While at Fort Jackson, he received but 16 to 26 hours of military training, only a small portion of which was devoted to military justice.
27
The Court suggests, ante, at 751—752, that some of the problems with the general articles may be ameliorated by the requirement of Art. 137, 10 U.S.C. § 937, that the provisions of the Code be 'carefully explained to each enlisted member at the time of his entrance on active duty, or within six days thereafter,' and that they be 'explained again after he has completed six months of active duty.' Even assuming, arguendo, that it is possible to 'carefully explain' the general articles, I do not believe that Art. 137 cures the vagueness of the statutes. The record in this case indicates that Dr. Levy received only a very brief amount of instruction on military justice; presumably, only a fraction of that instruction was devoted to the general articles. See n. 26, supra. Moreover, Army regulations indicate that only 20 minutes of instruction at the initial military justice lesson for enlisted men is devoted to Arts. 71 through 134 of the UCMJ; 49 minutes of instruction on Arts. 107 through 134 is provided for at the six-month class. Department of the Army, Army Regulation 350—212, Training, Military Justice, 2 June 1972; Army Subject Schedule No. 21—10, Military Justice (Enlisted Personnel Training), 24 June 1969. Obviously, only a portion of this total of 69 minutes can be set aside for instruction pertaining to the general articles. It would be myopic to pretend that such limited instruction on these amorphous criminal statutes provided military personnel with any genuine expertise on the subject, even assuming that anybody could ever acquire such expertise.
28
Manual, App. 6c.
29
See, e.g., United States v. Sadinsky, 14 U.S.C.M.A. 563, 34 C.M.R. 343 (jumping from ship to sea); United States v. Sanchez, 11 U.S.C.M.A. 216, 29 C.M.R. 32 (sexual acts with a chicken). See also Avrech v. Secretary of the Navy, 155 U.S.App.D.C., at 357, 477 F.2d, at 1242; Manual, App. 6a.1: Legal and Legislative Basis, Manual for Courts-Martial United States 296 (1951).
30
Manual, App. 6c, Spec. 126.
31
Id., App. 6c, Spec. 170.
32
Id., App. 6c, Spec. 188.
33
Similarly, the specifications concerning Art. 133 cover such dissimilar offenses as copying an examining paper, being drunk and disorderly, failing to pay a debt, and failure to keep a promise to pay a debt. Id., App. 6c, Specs. 122—125. Nowhere under the Art. 133 specifications is there any mention of the conduct with which Levy was charged.
34
Id., App. 6c, Specs. 118—176 (1951 ed.).
35
Id., App. 6c, Specs. 126—188 (1969).
36
See United States v.Smith, 13 U.S.C.M.A. 105, 32 C.M.R. 105; United States v. McCormick, 12 U.S.C.M.A. 26, 30 C.M.R. 26. In these and other cases, the Court of Military Appeals has indicated its belief that Congress did not and could not empower the President to promulgate substantive rules of law for the military. See also United States v. Barnes, 14 U.S.C.M.A. 567, 34 C.M.R. 347; United States v. Margelony, 14 U.S.C.M.A. 55, 33 C.M.R. 267. Cf. United States v. Acosta-Vargas, 13 U.S.C.M.A. 388, 32 C.M.R. 388. The question as to whether the Executive has such as inherent power was apparently left open by this Court in Reid v. Covert, 354 U.S. 1, 38, 77 S.Ct. 1222, 1 L.Ed.2d 1148, and it is not necessary to resolve it in this case. It is enough to note that the Court of Military Appeals has clearly held that inclusion of specific conduct in the Manual does not necessarily mean that it is violative of the general articles. Given that position of the highest military court, I can hardly conclude that a serviceman could ever receive authoritative notice from the form specifications as to the scope of the Articles.
37
See, e.g., United States v. McCormick, 12 U.S.C.M.A. 26, 30 C.M.R. 26; United States v. Waluski, 6 U.S.C.M.A. 724, 21 C.M.R. 46.
38
Manual, App. 6c, Spec. 139.
39
Id., 213f(5).
40
The Court also holds that even if the general articles might be considered vague as to some offenders, the appellee has no standing to raise such a claim, since he should have known that his conduct was forbidden. Ante, at 755—757. To the extent that this conclusion rests on the Court's holdings that the general articles are given content through limiting judicial constructions, military custom, or the Manual for Courts-Martial, I have indicated above my disagreement with its underlying premises. And to the extent that this conclusion rests on the language of the general articles, I think that it is simply mistaken. The words of Arts. 133 and 134 are vague beyond repair; I am no more able to discern objective standards of conduct from phrases such as 'conduct unbecoming an officer an da gnetleman' and 'conduct of a nature to bring discredit upon the armed forces' than I am from such words as 'bad' or 'reprehensible.' Given this essential uncertainty, I cannot conclude that the statutory language clearly warned the appellee that his speech was illegal. It may have been, of course, that Dr. Levy had a subjective feeling that his conduct violated some military law. But that is not enough, for as we pointed out in Bouie v. City of Columbia, 378 U.S. 347, 355—356, n. 5, 84 S.Ct. 1697, 1703, 12 L.Ed.2d 894 '(t)he determination whether a criminal statute provides fair warning of its prohibitions must be made on the basis of the statute itself and the other pertinent law, rather than on the basis of an ad hoc appraisal of the subjective expectations of particular defendants.'
41
Cf. J. Heller, Catch-22, p. 395 (Dell ed. 1970):
"(W)e accuse you also of the commission of crimes and infractions we don't even know about yet. Guilty or innocent?
"I don't know, sir. How can I say if you don't tell me what they are?'
"How can we tell you if we don't know?"
42
General Hodson suggests that in place of Art. 134, the Department of Defense and various military commanders could promulgate specific sets of orders, outlawing particular conduct. Those disobeying these orders could be prosecuted under Art. 92 of the UCMJ, 10 U.S.C. § 892, which outlaws the failure to obey any lawful order. See also Note, Taps for the Real Catch-22, 81 Yale L.J. 1518, 1537—1541, containing a similar suggestion.
| 12
|
417 U.S. 843
94 S.Ct. 2811
41 L.Ed.2d 514
William B. SAXBE, Attorney General of the United States, et al., Petitioners,v.The WASHINGTON POST CO. et al.
No. 73—1265.
Argued April 17, 1974.
Decided June 24, 1974.
Syllabus
The Policy Statement of the Federal Bureau of Prisons prohibiting personal interviews between newsmen and individually designated inmates of federal medium security and maximum security prisons does not abridge the freedom of the press that the First Amendment guarantees, Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495, since it 'does not deny the press access to sources of information available to members of the general public,' but is merely a particularized application of the general rule that nobody may enter the prison and designate an inmate whom he would like to visit, unless the prospective visitor is a lawyer, clergyman, relative, or friend of that inmate. Pp. 846 850.
161 U.S.App.D.C. 75, 494 F.2d 994, reversed and remanded.
Sol. Gen. Robert H. Bork, for petitioners.
Joseph A. Califano, Jr., Washington, D.C., for respondents.
Mr. Justice STEWART delivered the opinion of the Court.
1
The respondents, a major metropolitan newspaper and one of its reporters, initiated this litigation to challenge the constitutionality of 46(b) of Policy Statement 1220.1A of the Federal Bureau of Prisons.1 At the time that the case was in the District Court and the Court of Appeals, this regulation prohibited any personal interviews between newsmen and individually designated federal prison inmates. The Solicitor General has informed the Court that the regulation was recently amended 'to permit press interviews at federal prison institutions that can be characterized as minimum security.'2 The general prohibition of press interviews with inmates remains in effect, however, in three-quarters of the federal prisons, i.e., in all medium security and maximum security institutions, including the two institutions involved in this case.
2
In March 1972, the respondents requested permission from the petitioners, the officials responsible for administering federal prisons, to conduct several interviews with specific inmates in the prisons at Lewisburg, Pennsylvania, and Danbury, Connecticut. The petitioners denied permission for such interviews on the authority of Policy Statement 1220.1A. The respondents thereupon commenced this suit to challenge these denials and the regulation on which they were predicated. Their essential contention was that the prohibition of all press interviews with prison inmates abridges the protection that the First Amendment accords the newsgathering activity of a free press. The District Court agreed with this contention and held that the Policy Statement, insofar as it totally prohibited all press interviews at the institutions involved, violated the First Amendment. Although the court acknowledged that institutional considerations could justify the prohibition of some press-inmate interviews, the District Court ordered the petitioners to cease enforcing the blanket prohibition of all such interviews and, pending modification of the Policy Statement, to consider interview requests on an individual basis and 'to withhold permission to interview . . . only where demonstrable administrative or disciplinary considerations dominate.' 357 F.Supp. 770, 775 (DC 1972).
3
The petitioners appealed the District Court's judgment to the Court of Appeals for the District of Columbia Circuit. We stayed the District Court's order pending the completion of that appeal, sub nom. Kleindienst v. Washington Post Co., 406 U.S. 912, 92 S.Ct. 1761, 32 L.Ed.2d 112 (1972). The first time this case was before it, the Court of Appeals remanded it to the District Court for additional findings of fact and particularly for reconsideration in light of this Court's intervening decision in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). 155 U.S.App.D.C. 283, 477 F.2d 1168 (1972). On remand, the District Court conducted further evidentiary hearings, supplemented its findings of fact, and reconsidered its conclusions of law in light of Branzburg and other recent decisions that were urged upon it. In due course, the court reaffirmed its original decision, 357 F.Supp. 779 (DC 1972), and the petitioners again appealed to the Court of Appeals.
4
The Court of Appeals affirmed the judgment of the District Court. It held that press interviews with prison inmates could not be totally prohibited as the Policy Statement purported to do, but may 'be denied only where it is the judgment of the administrator directly concerned, based on either the demonstrated behavior of the inmate, or special conditions existing at the institution at the time the interview is requested, or both, that the interview presents a serious risk of administrative or disciplinary problems.' 161 U.S.App.D.C. 75, 87 88, 494 F.2d 994, 1006—1007 (1974). Any blanket prohibition of such face-to-face interviews was held to abridge the First Amendment's protection of press freedom. Because of the important constitutional question involved, and because of an apparent conflict in approach to the question between the District of Columbia Circuit and the Ninth Circuit,3 we granted certiorari. 415 U.S. 956, 94 S.Ct. 1482, 39 L.Ed.2d 571 (1974).
5
The policies of the Federal Bureau of Prisons regarding visitations to prison inmates do not differ significantly from the California policies considered in Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495. As the Court of Appeals noted, 'inmates' families, their attorneys, and religious counsel are accorded liberal visitation privileges. Even friends of inmates are allowed to visit, although their privileges appear to be somewhat more limited.' 161 U.S.App.D.C., at 78, 494 F.2d, at 997. Other than members of these limited groups with personal and professional ties to the inmates, members of the general public are not permitted under the Bureau's policy to enter the prisons and interview consenting inmates. This policy is applied with an even hand to all prospective visitors, including newsmen, who, like other members of the public, may enter the prisons to visit friends or family members. But, again like members of the general public, they may not enter the prison and insist on visiting an inmate with whom they have no such relationship. There is no indication on this record that Policy Statement 1220.1A has been interpreted or applied to prohibit a person, who is otherwise eligible to visit and interview an inmate, from doing so merely because he is a member of the press.4
6
Except for the limitation in Policy Statement 1220.1A on face-to-face press-inmate interviews, members of the press are accorded substantial access to the federal prisons in order to observe and report the conditions they find there. Indeed, journalists are given access to the prisons and to prison inmates that in significant respects exceeds that afforded to members of the general public. For example, Policy Statement 1220.1A permits press representatives to tour the prisons and to photograph any prison facilities.5 During such tours a newsman is permitted to conduct brief interviews with any inmates he might encounter.6 In addition, newsmen and inmates are permitted virtually unlimited written correspondence with each other.7 Outgoing correspondence from inmates to press representatives is neither censored nor inspected. Incoming mail from press representatives is inspected only for contraband or statements inciting illegal action. Moreover, prison officials are available to the press and are required by Policy Statement 1220.1A to 'give all possible assistance' to press representatives 'in providing background and a specific report' concerning any inmate complaints.8
7
The respondents have also conceded in their brief that Policy Statement 1220.1A 'has been interpreted by the Bureau to permit a newsman to interview a randomly selected group of inmates.' As a result, the reporter respondent in this case was permitted to interview a randomly selected group of inmates at the Lewsiburg prison. Finally, in light of the constant turnover in the prison population, it is clear that there is always a large group of recently released prisoners who are available to both the press and the general public as a source of information about conditions in the federal prisons.9
8
Thus, it is clear that Policy Statement 1220.1A is not part of any attempt by the Federal Bureau of Prisons to conceal from the public the conditions prevailing in federal prisons. This limitation on prearranged press interviews with individually designated inmates was motivated by the same disciplinary and administrative considerations that underlie § 115.071 of the California Department of Corrections Manual, which we considered in Pell v. Procunier and Procunier v. Hillery, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495. The experience of the Bureau accords with that of the California Department of Corrections and suggests that the interest of the press is often 'concentrated on a relatively small number of inmates who, as a result, (become) virtual 'public figures' within the prison society and gai(n) a disproportionate degree of notoriety and influence among their fellow inmates.' Pell, 417 U.S., at 831—832, 94 S.Ct., at 2808. As a result those inmates who are conspicuously publicized because of
8
Id., 4b(12).
9
The Solicitor General's brief informs us that 'approximately one-half of the prison population on any one day will be released within the following 12 months. The average population is 23,000, of whom approximately 12,000 are released each year.' their repeated contacts with the press tend to become the source of substantial disciplinary problems that can engulf a large portion of the population at a prison.
The District Court and the Court of Appeals sought to meet this problem by decreeing a selective policy whereby prison officials could deny interviews likely to lead to disciplinary problems. In the expert judgment of the petitioners, however, such a selective policy would spawn serious discipline and morale problems of its own by engendering hostility and resentment among inmates who were refused interview privileges granted to their fellows. The Director of the Bureau testified that 'one of the very basic tenets of sound correctional administration' is 'to treat all inmates incarcerated in (the) institutions, as far as possible, equally.' This expert and professional judgment is, of course, entitled to great deference.
In this case, however, it is unnecessary to engage in any delicate balancing of such penal considerations against the legitimate demands of the First Amendment. For it is apparent that the sole limitation imposed on newsgathering by Policy Statement 1220.1A is no more than a particularized application of the general rule that nobody may enter the prison and designate an inmate whom he would like to visit, unless the prospective visitor is a lawyer, clergyman, relative, or friend of that inmate. This limitation on visitations is justified by what the Court of Appeals acknowledged as 'the truism that prisons are institutions where public access is generally limited.' 161 U.S.App.D.C., at 80, 494 F.2d, at 999. See Adderley v. Florida, 385 U.S. 39, 41, 87 S.Ct. 242, 243, 17 L.Ed.2d 149 (1966). In this regard, the Bureau of Prisons visitation policy does not place the press in any less advantageous position than the public generally. Indeed, the total access to federal prisons and prison inmates that the Bureau of Prisons accords to the press far surpasses that available to other members of the public.
We find this case constitutionally indistinguishable from Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495, and thus fully controlled by the holding in that case. '(N)ewsmen have no constitutional right of access to prisons or their inmates beyond that afforded the general public.' Id., 417 U.S., at 834, 94 S.Ct., at 2810. The proposition 'that the Constitution imposes upon government the affirmative duty to make available to journalists sources of information not available to members of the public generally . . . finds no support in the words of the Constitution or in any decision of this Court.' Id., at 834—835, 94 S.Ct., at 2810. Thus, since Policy Statement 1220.1A 'does not deny the press access to sources of information available to members of the general public,' id., at 835, 94 S.Ct., at 2810, we hold that it does not abridge the freedom that the First Amendment guarantees. Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded to the District Court for further proceedings consistent with this opinion.
It is so ordered.
Judgment of Court of Appeals reversed and case remanded to the District Court.
Mr. Justice POWELL, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.
The Court today upholds the authority of the Bureau of Prisons to promulgate and enforce and absolute ban against personal interviews of prison inmates by representatives of the news media.1 In my view the interview ban impermissibly burdens First Amendment freedoms. My analysis proceeds as follows. Part I addresses the nature and effect of the Bureau's policy. Part II concerns the constitutional underpinnings of respondents' attack on that policy. Part III considers the Bureau's justifications for an absolute interview ban in light of the appropriate standard of First Amendment review, and Part IV surveys some of the factors that the Bureau may consider in formulating a constitutionally acceptable interview policy. Part V contains some concluding remarks.
*
The ban against press interviews is not party of any general news blackout in the federal prisons. Bureau of Prisons Policy Statement 1220.1A establishes the official policy regarding prisoner-press communications, and that policy in many respects commendably facilitates public dissemination of information about federal penal institutions. Inmate letters addressed to members of the news media are neither opened nor censored, and incoming mail from press representatives is inspected only for contraband and for content likely to incite illegal conduct. Furthermore, the Bureau officially encourages newsmen to visit federal prisons in order to report on correctional facilities and programs
The specific issue in this case is the constitutionality of the Bureau's ban against prisoner-press interviews. That policy is set forth in 4b(6) of the Policy Statement:
'Press representatives will not be permitted to interview individual inmates. This rule shall apply even where the inmate requests or seeks an interview. However, a conversation may be permitted with inmates whose identity is not to be made public, if it is limited to the discussion of institutional facilities, programs and activities.'
The Policy Statement does not explicate the distinction between an 'interview' and a 'conversation,' but that subject was explored in evidentiary proceedings before the District Court. The court found that a 'conversation' generally occurs when a newsman is taking a supervised tour of an institution and stops to ask an inmate about prison conditions and the like. It is a brief, spontaneous discussion with a randomly encountered inmate on subjects limited to 'institutional facilities, programs, and activities.' An 'interview,' by contrast, is a prearranged private meeting with a specifically designated inmate. It is unrestricted as to subject matter and lasts a sufficient time to permit full discussion.2
The Bureau's prohibition against press interviews is absolute in nature. It applies without regard to the record and characteristics of the particular inmate involved, the purpose of the interview, or the conditions then prevailing at the institution in question. At the time of the decisions of the District Court and the Court of Appeals, the interview ban applied with equal rigor to every correctional facility administered by the Bureau, community treatment centers as well as major penitentiaries. By letter dated April 16, 1974, the Solicitor General informed us that the Bureau subsequently modified its policy to exempt minimum security facilities from the absolute prohibition of press interviews. This charge affects approximately one-quarter of the inmate population of the federal prisons. For the remainder, the Bureau intends to continue its established policy.
In its order remanding the case for reconsideration in light of Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), the Court of Appeals directed the District Court to determine the 'extent to which the accurate and effective reporting of news has a critical dependence upon the opportunity for private personal interviews.' 155 U.S.App.D.C. 283, 284, 477 F.2d 1168, 1169 (1972). The District Court held an evidentiary hearing on this subject and made specific findings of fact. 357 F.Supp. 779 (DC 1972). Thanks to this special effort by the Court of Appeals and the District Court, we have an unusually detailed and informative account of the effect of the interview ban on prisoner-press communications.3
The District Court received testimony on this point from six knowledgeable persons.4 All agreed that personal interviews are crucial to effective reporting in the prison context. A newsman depends on interviews in much the same way that a trial attorney relies on cross examination. Only in face-to-face discussion can a reporter put a question to an inmate and respond to his answer with an immediate follow-up question. Only in an interview can the reporter pursue a particular line of inquiry to a satisfactory resolution or confront an inmate with discrepancies or apparent inconsistencies in his story. Without a personal interview a reporter is often at a loss to determine the honesty of his informant or the accuracy of the Information received.5 This is particularly true in the prison environment, where the sources of information are unlikely to be well known to newsmen or to have established any independent basis for assessing credibility. Consequently, ethical newsmen are reluctant to publish a story without an opportunity through face-to-face discussion to evaluate the veracity and reliability of its source. Those who do publish without interviews are likely to print inaccurate, incomplete, and sometimes jaundiced news items. The detailed testimony on this point led the District Court to find as a fact that the absolute interview ban precludes accurate and effective reporting on prison conditions and inmate grievances.
The District Court also found that the alternative avenues of prisoner-press communication allowed by the Policy Statement, whether considered singly or in aggregation, are insufficient to compensate for the prohibition of personal interviews. For the reasons stated above, correspondence is decidedly inferior to face-to-face discussion as a means of obtaining reliable information about prison conditions and inmate grievances. In addition, the prevalence of functional illiteracy among the inmate population poses a serious difficulty; many prisoners are simply incapable of communicating effectively in writing.
Random conversations during supervised tours of prison facilities are also no substitute for personal interviews with designated inmates. The conversations allowed by the Policy Statement are restricted in both duration and permissible subject matter. Furthermore, not every inmate is equally qualified to speak on every subject. If a reporter is investigating a particular incident, the opportunity to converse with inmates who were not present is of little consequence. Moreover, the conversations associated with guided tours are often held in the presence of several inmates, a factor likely to result in distortion of the information obtained.6 The District Court received detailed testimony concerning the kinds of information that can only be obtained through personal interviews of individual inmates.
On the basis of this and other evidence, the District Court found that personal interviews are essential to accurate and effective reporting in the prison environment. The Court of Appeals endorsed that conclusion, nothing that the trial court's findings of fact on this issue 'are supported by a substantial body of evidence of record, and indeed appear to be uncontradicted.' 161 U.S.App.D.C., at 82, 494 F.2d, at 1001. The Government does not seriously attack this conclusion. Instead, it contends that the effect of the Bureau's interview ban on prisoner-press communications raises no claim of constitutional dimensions. It is to that question that I now turn.
II
Respondents assert a constitutional right to gather news. In the language of the Court of Appeals, they claim a right of access by the press to newsworthy events. However characterized, the gist of the argument is that the constitutional guarantee of a free press may be rendered ineffective by excessive restraints on access to information and therefore that the Government may not enforce such restrictions absent some substantial justification for doing so. In other words, respondents contend that the First Amendment protects both the dissemination of news and the antecedent activity of obtaining the information that becomes news.
The Court rejects this claim on the ground that 'newsmen have no constitutional right of access to prisons or their inmates beyond that afforded the general public.' Pell v. Procunier, 417 U.S., at 834, 94 S.Ct., at 2810. It is said that First Amendment protections for newsgathering by the press reach only so far as the opportunities available for the ordinary citizen to have access to the source of news. Because the Bureau of Prisons does not specifically discriminate against the news media, its absolute prohibition of prisoner-press interviews is not susceptible to constitutional attack. In the Court's view, this is true despite the factual showing that the interview ban precludes effective reporting on prison conditions and inmate grievances. From all that appears in the Court's opinion, one would think that any governmental restriction on access to information, no matter how severe, would be constitutionally acceptable to the majority so long as it does not single out the media for special disabilities not applicable to the public at large.
I
agree, of course, that neither any news organization nor reporters as individuals have constitutional rights superior to those enjoyed by ordinary citizens. The guarantees of the First Amendment broadly secure the rights of every citizen; they do not create special privileges for particular groups or individuals. For me, at least, it is clear that persons who become journalists acquire thereby no special immunity from governmental regulation. To this extent I agree with the majority. But I cannot follow the Court in concluding that any governmental restriction on press access to information, so long as it is nondiscriminatory, falls outside the purview of First Amendment concern
The Court principally relies on two precedents. In Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965), the Court rejected a United States citizen's contention that he had a First Amendment right to visit Cuba in order to inform himself of the conditions there. The more recent authority is Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), where we considered the assertion by newsmen of a qualified First Amendment right to refuse to reveal their confidential sources or the information obtained from them to grand juries. The Court rejected this claim, primarily on the ground that the largely speculative public interest 'in possible future news about crime from undisclosed, unverified sources' could not override the competing interest 'in pursuing and prosecuting those crimes reported to the pess by informants and in thus deterring the commission of such crimes in the future.' Id., at 695, 92 S.Ct., at 2664.
Relying on these precedents, the majority apparently concludes that nondiscriminatory restrictions on press access to information are constitutionally irrelevant. Neither Zemel nor Branzburg warrants so broad a reading. In Zemel the Court rejected the asserted First Amendment right to visit Cuba on the ground that the governmental restriction on trips to that country was 'an inhibition of action' rather than a restraint of speech. 381 U.S., at 16, 85 S.Ct., at 1281. However appropriate to the context of that case, this distinction could not have been intended as an all-embracing test for determining which governmental regulations implicate First Amendment freedoms and which do not. The decision in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), is sufficient answer to any such suggestion. Moreover, the dichotomy between speech and action, while often helpful to analysis, is too uncertain to serve as the dispositive factor in charting the outer boundaries of First Amendment concerns. In the instant case, for example, it may be said with equal facility that the Bureau forbids the conduct, at least by newsmen and the public generally, of holding a private meeting with an incarcerated individual or, alternatively, that the Bureau prohibits the direct exchange of speech that constitutes an interview with a press representative. In light of the Bureau's willingness to allow lawyers, clergymen, relatives, and friends to meet privately with designated inmates, the latter characterization of the interview ban seems closer to the mark, but in my view the scope and meaning of First Amendment guarantees do not hinge on these semantic distinctions. The reality of the situation is the same, certainly in this case, and there is no magic in choosing one characterization rather than the other. Simply stated, the distinction that formed the basis for decision in Zemel is not helpful here.
Nor does Branzburg v. Hayes, supra, compel the majority's resolution of this case. It is true, of course, that the Branzburg decision rejected an argument grounded in the assertion of a First Amendment right to gather news and that the opinion contains language which, when read in isolation, may be read to support the majority's view. E.g., 408 U.S., at 684—685, 92 S.Ct., at 2658. Taken in its entirety, however, Branzburg does not endorse so sweeping a rejection of First Amendment challenges to restraints on access to news. The Court did not hold that the government is wholly free to restrict press access to newsworthy information. To the contrary, we recognized explicitly that the constitutional guarantee of freedom of the press does extend to some of the antecedent activities that make the right to publish meaningful: 'Nor is it suggested that news gathering does not qualify for First Amendment protection; without some protection for seeking out the news, freedom of the press could be eviscerated.' Id., at 681, 92 S.Ct., at 2656. We later reiterated this point by noting that 'news gathering is not without its First Amendment protections . . ..' Id., at 707, 92 S.Ct., at 2670. And I emphasized the limited nature of the Branzburg holding in my concurring opinion: 'The Court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in safeguarding their sources.' Id., at 709, 92 S.Ct., at 2671. In addition to these explicit statements, a fair reading of the majority's analysis in Branzburg makes plain that the result hinged on an assessment of the competing societal interests involved in that case rather than on any determination that First Amendment freedoms were not implicated. See especially id., at 700—701, 92 S.Ct. at 2666.
In sum, neither Zemel nor Branzburg presents a barrier to indepencent consideration of respondents' constitutional attack on the interview ban. Those precedents arose in contexts far removed from that of the instant case, and in my view neither controls here. To the extent that Zemel and Branzburg speak to the issue before us, they reflect no more than a sensible disinclination to follow the right-to-access argument as far as dry logic might extend. As the Court observed in Zemel: '(T)here are few restrictions on action which could not be clothed by ingenious argument in the garb of decreased data flow.' 381 U.S., at 16—17, 85 S.Ct., at 1281. It goes too far to suggest that the government must justify under the stringent standards of First Amendment review every regulation that might affect in some tangential way the availability of information to the news media. But to my mind it is equally impermissible to conclude that no governmental inhibition of press access to newsworthy information warrants constitutional scrutiny. At some point official restraints on access to news sources, even though not directed solely at the press, may so undermine the function of the First Amendment that it is both appropriate and necessary to require the government to justify such regulations in terms more compelling than discretionary authority and administrative convenience. It is worth repeating our admonition in Branzburg that 'without some protection for seeking out the news, freedom of the press could be eviscerated.' 408 U.S., at 681, 92 S.Ct. at 2656.
The specific issue here is whether the Bureau's prohibition of prisoner-press interviews gives rise to a claim of constitutional dimensions. The interview ban is categorical in nature. Its consequence is to preclude accruate and effective reporting on prison conditions and inmate grievances. These subjects are not privileged or confidential. The Government has no legitimate interest in preventing newsmen from obtaining the information that they may learn through personal interviews or from reporting their findings to the public. Quite to the contrary, federal prisons are public institutions. The administration of these institutions, the effectiveness of their rehabilitative programs, the conditions of confinement that they maintain, and the experiences of the individuals incarcerated therein are all matters of legitimate societal interest and concern.7 Respondents do not assert a right to force disclosure of confidential information or to invade in any way the decisionmaking processes of governmental officials. Neither do they seek to question any inmate who does not wish to be interviewed. They only seek to be free of an exceptionaless prohibition against a method of newsgathering that is essential to effective reporting in the prison context.
I
believe that this sweeping prohibition of prisoner-press interviews substantially impairs a core value of the First Amendment. Some years ago, Professor Chafee pointed out that the guarantee of freedom of speech and press protects two kinds of interests: 'There is an individual interest, the need of many men to express their opinions on matters vital to them if life is to be worth living, and a social interest in the attainment of truth, so that the country may not only adopt the wisest course of action but carry it out in the wisest way.' Z. Chafee, Free Speech in the United States 33 (1954). In its usual application—as a bar to governmental restraints on speech or publication—the First Amendment protects important values of individual expression and personal self-fulfillment. But where as here, the Government imposes neither a penalty on speech nor any sanction against publication, these individualistic values of the First Amendment are not directly implicated
What is at stake here is the societal function of the First Amendment in preserving free public discussion of governmental affairs. No aspect of that constitutional guarantee is more rightly treasured than its protection of the ability of our people through free and open debate to consider and resolve their own destiny. As the Solicitor General made the point, '(t)he First Amendment is one of the vital bulwarks of our national commitment to intelligent self-government.' Brief for Petitioners 47—48. It embodies our Nation's commitment to popular self-determination and our abiding faith that the surest course for developing sound national policy lies in a free exchange of views on public issues.8 And public debate must not only be unfettered; it must also be informed. For that reason this Court has repeatedly stated that First Amendment concerns encompass the receipt of information and ideas as well as the right of free expression. Kleindienst v. Mandel, 408 U.S. 753, 762, 92 S.Ct. 2576, 2581, 33 L.Ed.2d 683 (1972); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390, 89 S.Ct. 1794, 1806, 23 L.Ed.2d 371 (1969); Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1965); Martin v. City of Struthers, 319 U.S. 141, 143, 63 S.Ct. 862, 863, 87 L.Ed. 1313 (1943).
In my view this reasoning also underlies our recognition in Branzburg that 'news gathering is not without its First Amendment protections . . ..' 408 U.S., at 707, 92 S.Ct. at 2670. An informed public depends on accurate and effective reporting by the news media. No individual can obtain for himself the information needed for the intelligent discharge of his political responsibilities. For most citizens the propect of personal familiarity with newsworthy events is hopelessly unrealistic. In seeking out the news the press therefore acts as an agent of the public at large. It is the means by which the people receive that free flow of information and ideas essential to intelligent self-government. By enabling the public to assert meaningful control over the political process, the press performs a crucial function in effecting the societal purpose of the First Amendment. That function is recognized by specific reference to the press in the text of the Amendment and by the precedents of this Court:
'The Constitution specifically selected the press . . . to play an important role in the discussion of public affairs. Thus the 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.' Mills v. Alabama, 384 U.S. 214, 219, 86 S.Ct. 1434, 1437, 16 L.Ed.2d 484 (1966).
This constitutionally established role of the news media is directly implicated here. For good reasons, unrestrained public access is not permitted. The people must therefore depend on the press for information concerning public institutions. The Bureau's absolute prohibition of prisoner-press interviews negates the ability of the press to discharge that function and thereby substantially impairs the right of the people to a free flow of information and ideas on the conduct of their Government. The underlying right is the right of the public generally. The press is the necessary representative of the public's interest in this context and the instrumentality which effects the public's right. I therefore conclude that the Bureau's ban against personal interviews must be put to the test of First Amendment review
III
Because I believe that the ban against prisoner-press interviews significantly impinges on First Amendment freedoms, I must consider whether the Government has met its heavy burden of justification for that policy. In Tinker v. Des Moines School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), the Court noted that First Amendment guarantees must be 'applied in light of the special characteristics of the . . . environment.' Id., at 506, at 736 of 89 S.Ct. Earlier this Term we had occasion to consider the applicability of those guarantees in light of the special characteristics of the prison environment. That opportunity arose in Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), where we considered the constitutionality of California prison regulations authorizing censorship of inmate correspondence. We declined to analyze that case in terms of 'prisoners' rights,' for we concluded that censorship of prisoner mail, whether incoming or outgoing, impinges on the interest in communication of both the inmate and the nonprisoner correspondent: 'Whatever the status of a prisoner's claim to uncensored correspondence with an outsider, it is plain that the latter's interest is grounded in the First Amendment's guarantee of freedom of speech.' Id., at 408, 94 S.Ct., at 1809. We therefore looked for guidance 'not to cases involving questions of 'prisoners' rights,' but to decisions of this Court dealing with the general problem of incidental restrictions on First Amendment liberties imposed in furtherance of legitimate governmental activities.' Id., at 409, 94 S.Ct., at 1809. Adopting the approach followed in Tinker, supra; Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972); and United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), we enunciated the following standard for determining the constitutionality of prison regulations that limit the First Amendment liberties of nonprisoners:
'First, the regulation or practice in question must further an important or substantial governmental interest unrelated to the suppression of expression. . . . Second, the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved.' 416 U.S., at 413, 94 S.Ct., at 1811.
We announced Procunier v. Martinez, supra, after final decision of this case by the District Court and affirmance by the Court of Appeals. Happily, those courts anticipated our holding in Procunier and decided this case under a standard of First Amendment review that is in substance identical to our formulation there. Thus, the Court of Appeals sought to assure that the impairment of the public's right to a free flow of information about prisons is 'no greater than is necessary for the protection of the legitimate societal interests in the effective administration of (penal) systems.' 161 U.S.App.D.C., at 80, 494 F.2d, at 999.9 The court reviewed in detail the various interests asserted by the Bureau and reached the following conclusion:
'(W)hile we do not question that the concerns voiced by the Bureau are legitimate interests that merit protection, we must agree with the District Court that they do not, individually or in total, justify the sweeping absolute ban that the Bureau has chosen to impose. When regulating an area in which First Amendment interests are involved, administrative officials must be careful not only to assure that they are responding to legitimate interests which are within their powers to protect; they must also take care not to cast regulations in a broad manner that unnecessarily sacrifices First Amendment rights. In this case the scope of the interview ban is excessive; the Bureau's interests can and must be protected on a more selective basis.' Id., at 86, 494 F.2d, at 1005.
I
agree with this conclusion by the Court of Appeals. The Bureau's principal justification for its interview ban has become known during the course of this litigation as the 'big wheel' phenomenon. The phrase refers generally to inmate leaders. The Bureau argues that press interviews with 'big wheels' increase their status and influence and thus enhance their ability to persuade other prisoners to engage in disruptive behavior. As a result security is threatened, discipline impaired, and meaningful rehabilitation rendered more problematical than ever
There seems to be little question that 'big wheels' do views play a significant role in the creation of 'big wheels' or in the enhancement of their prestige was a subject of dispute in the District Court. With appropriate regard for the expertise of prison administrators, that court found that the problems associated with the 'big wheel' phenomenon 'are all real considerations and while somewhat impressionistic, they are supported by experience and advanced in good faith.' 357 F.Supp. 770, 774.
The District Court also found, however, that the 'big wheel' theory does not justify the Bureau's categorical prohibition of all press interviews, and the Court of Appeals endorsed this conclusion. The rationale applies only to those individuals with both disruptive proclivities and leadership potential. The record reveals estimates of the number of prison trublemakers ranging from five to ten percent. Logically, the number of prisoners in this category who have significant influence in the inmate community should constitute a substantially smaller percentage. To the extent that the 'big wheel' phenomenon includes influntial inmates who generally cooperate in maintaining institutional order, it is not problem at all. Publicity which enhances their prestige is certainly no hindrance to effective penal administration. Moreover, the Bureau has not shown that it is unable to identify disruptive 'big wheels' and to take precautions specifically designed to prevent the adverse effects of media attention to such inmates. In short, the remedy of no interview of any inmate is broader than is necessary to avoid the concededly real problems of the 'big wheel' phenomenon.11
This conclusion is supported by detailed evidence and by the successful experience of other prison systems in allowing prisoner-press interviews. In connection with this litigation, counsel for respondents attempted to ascertain the interview policies followed by prison administrators in every State and in numerous local jurisdictions. The District Court received into evidence only those policy statements that had been adopted in written form. Of the 24 American jurisdictions in this sample, only five broadly prohibit personal interviews of prison inmates by media representatives.12 Seven jurisdictions vest in correctional officials the authrity to allow or deny such interviews on a case-by-case basis,13 and 11 generally permit prisoner-press interviews.14 Thus, correctional authorities in a substantial majority of the prison systems represented have found no need to adopt an exceptionaless prohibition against all press interviews of consenting inmates, and a significant number of jurisdictions more or less freely permit them. The District Court received detailed evidence concerning these prison systems and the success of the open-interview policy15 and found no substantial reason to suppose that the Bureau of Prisons faces difficulties more severe than those encountered in the jurisdictions that generally allow press interviews. This survey of prevailing practices reinforces the conclusion that the Bureau's prohibition of all prisoner-press interviews is not necessary tc the protection of the legitimate governmental interests at stake.
IV
Finding no necessity for an absolute interview ban, the District Court proceeded to require that interview requests be evaluated on a case-by-case basis and that they be refused only when the conduct of an individual inmate or the conditions prevailing at a particular institution warrant such action. The Court of Appeals affirmed the substance of the order:16
'(W)e . . . require that interviews be denied only where it is the judgment of the administrator directly concerned, based on either the demonstrated behavior of the inmate, or special conditions existing at the institution at the time the interview is requested, or both, that the interview presents a serious risk of administrative or disciplinary problems.' 161 U.S.App.D.C., at 87—88, 494 F.2d, at 1006—1007.
The Bureau objects to the requirement of individual evaluation of interview requests. It argues that this approach would undermine inmate morale and discipline and occasion severe administrative difficulties. The line between a good-faith denial of an interview for legitimate reasons and a self-interested determination to avoid unfavorable publicity could prove perilously thin. Not unnaturally, prison administrators might tend to allow interviews with cooperative inmates and restrict press access to known critics of institutional policy and management. Denials that were in fact based on an administrator's honest perception of the risk to order and security might be interpreted by some inmates as evidence of bias and discrimination. Additionally, a policy requiring case-by-case evaluation of interview requests could subject the Bureau to widespread litigation of an especially debilitating nature. Unable to rely on a correct application of a general rule or policy authorizing denial, prison officials would be forced to an ad hoc defense of the merits of each decision before reviewing courts. In short, the Bureau argues that an individualized approach to press interviews is correctionally unsound and administratively burdensome.
This assessment of the difficulties associated with case-by-case evaluation of interview requests may seem overly pessimistic, but it is not without merit. In any event, this is the considered professional opinion of the responsible administrative authorities. They are entitled to make this judgment, and the courts are bound to respect their decision unless the Constitution commands otherwise. While I agree with the District Court and the Court of Appeals that the First Amendment requires the Bureau to abandon its absolute ban against press interviews, I do not believe that it compels the adoption of a policy of ad hoc balancing of the competing interests involved in each request for an interview.
This conclusion follows from my analysis in Part II, supra, of the nature of the constitutional right at issue in this case. The absolute interview ban precludes accurate and effective reporting on prison conditions and inmate grievances and thereby substantially negates the ability of the news media to inform the public on those subjects. Because the interview ban significantly impairs the constitutional interest of the people in a free flow of information and ideas on the conduct of their Government, it is appropriate that the Bureau be put to a heavy burden of justification for that policy. But it does not follow that the Bureau is under the same heavy burden to justify any measure of control over press acccess to prison inmates. Governmental regulation that has no palpable impact on the underlying right of the public to the information needed to assert ultimate control over the political process is not subject to scrutiny under the First Amendment. Common sense and proper respect for the constitutional commitment of the affairs of state to the Legislative and Executive Branches should deter the Judiciary from chasing the right-of-access rainbows that an advocate's eye can spot in virtually all governmental actions. Governmental regulations should not be policed in the name of a 'right to know' unless they significantly affect the societal function of the First Amendment. I therefore believe that a press interview policy that substantially accommodates the public's legitimate interest in a free flow of information and ideas about federal prisons should survive constitutional review. The balance should be struck between the absolute ban of the Bureau and an uninhibited license to interview at will.
Thus, the Bureau could meet its obligation under the First Amendment and protect its legitimate concern for effective penal administration by rules drawn to serve both purposes without undertaking to make an individual evaluation of every interview request. Certainly the Bureau may enforce reasonable time, place, and manner restrictions for press interviews. Such regulations already govern interviews of inmates by attorneys, clergymen, relatives, and friends. Their application to newsmen would present no great problems. To avoid media creation of 'big wheels,' the Bureau may limit the number of interviews of any given inmate within a specified time period. To minimize the adverse consequences of publicity concerning existing 'big wheels,' the Bureau may refuse to allow any interviews of a prisoner under temporary disciplinary sanction such as solitary confinement. And, of course, prison administrators should be empowered to suspend all press interviews during periods of institutional emergency. Such regulations would enable the Bureau to safeguard its legitimate interests without incurring the risks associated with administration of a wholly ad hoc interview policy.
A
similar approach would allay another of the Bureau's principal concerns—the difficulty of determining who constitutes the press. The Bureau correctly points out that 'the press' is a vague concept. Any individual who asserts an intention to convey information to others might plausibly claim to perform the function of the news media and insist that he receive the same access to prison inmates made available to accredited reporters. The Bureau is understandably reluctant to assume the responsibility for deciding such questions on a case-by-case basis. Yet the Bureau already grants special mail privileges to members of the news media, and for that purpose it defines the press as follows: 'A newspaper entitled to second class mailing privileges; a magazine or periodical of general distribution; a national or international news service; a radio or television network or station.' Policy Statement 1220.1A 4a. This regulation or one less inclusive could serve as an adequate basis for formulating a constitutionally acceptable interview policy. Allowing personal interviews of prison inmates by representatives of the news madia, as so defined, would afford substantial opportunity for the public to be informed on the conduct of federal prisons. The fact that some individuals who may desire interviews will not fall within a broad and otherwise reasonable definition of the press should not present any constitutional difficulty17
These comments are not intended to be exhaustive or to dictate correctional policy but only to indicate the broad contours of the approach that I think should be available to the Bureau. I would affirm that portion of the judgment of the District Court as affirmed by the Court of Appeals that invalidates the absolute ban against prisoner-press interviews, but remand the case with instructions to allow the Bureau to devise a new policy in accordance with its own needs and with the guidelines set forth in this opinion
V
The Court's resolution of this case has the virtue of simplicity. Because the Bureau's interview ban does not restrict speech or prohibit publication or impose on the press any special disability, it is not susceptible to constitutional attack. This analysis delineates the outer boundaries of First Amendment concerns with unambiguous clarity. It obviates any need to enter the thicket of a particular factual context in order to determine the effect on First Amendment values of a nondiscriminatory restraint on press access to information. As attractive as this approach may appear, I cannot join it. I believe that we must look behind bright-line generalities, however sound they may seem in the abstract, and seek the meaning of First Amendment guarantees in light of the underlying realities of a particular environment. Indeed, if we are to preserve First Amendment values amid the complexities of a changing society, we can do no less.
1
'Press representatives will not be permitted to interview individual inmates. This rule shall apply even where the inmate requests or seeks an interview. However, conversation may be permitted with inmates whose identity is not to be made public, if it is limited to the discussion of institutional facilities, programs and activities.'
2
Letter of Apr. 16, 1974, to Clerk, Supreme Court of the United States, presently on file with the Clerk.
3
See Seattle-Tacoma Newspaper Guild v. Parker, 480 F.2d 1062, 1066—1067 (1973). See also Hillery v. Procunier, 364 F.Supp. 196, 199—200 (N.D.Cal.1973).
4
The Solicitor General's brief represents that '(m)embers of the press, like the public generally, may visit the prison to see friends there.' Presumably, the same is true with respect to family members. The respondents have not disputed this representation.
5
Policy Statement 1220.1A 4b(5) and (7).
6
See id., 4b(6) set out in n. 1 supra. The newsman is requested not to reveal the identity of the inmate, and the conversation is to be limited to institutional facilities, programs, and activities.
7
Id., 4b(1) and (2).
1
Throught this opinion I use the terms 'news media' and 'press' to refer generally to both print and broadcast journalism. Of course, the use of television equipment in prisons presents special problems that are not before the Court in this case.
2
In at least two instances, federal wardens have permitted newsmen to interview randomly selected groups of inmates. Apparently, such occurrences are not widespread, and the basis for them is unclear. Neither in express terms nor by implication does the Policy Statement authorize such group interviews, and the Government does not suggest that the Bureau of Prisons officially approves the practice.
3
Writing for the Court of Appeals, Judge McGowan attributed this special care to develop an unusually enlightening evidentiary record to the 'great respect which the federal judiciary entertains for the Bureau by reason of its long and continuous history of distinguished and enlightened leadership . . ..' 161 U.S.App.D.C. 75, 77, 464 F.2d 994, 996. This is a sentiment which I fully share, for the Bureau has long been a constructive leader in prison reform.
4
The court received testimony from three experienced reporters, two academic journalists, and an attorney with special expertise in this area. The reporters were respondent Ben H. Bagdikian, a Washington Post reporter experienced in covering prisons and interviewing inmates; Timothy Leland, a Pulitzer prize winner who is Assistant Managing Editor of the Boston Globe and head of its investigative reporting team; and John W. Machacek, a reporter for the Rochester Times-Union, who won a Pulitzer prize for his coverage of the Attica Prison riot. The academic journalists were Elie Abel, Dean of the Graduate School of Journalism of Columbia University, and Roy M. Fisher, Dean of the School of Journalism of the University of Missouri and former editor of the Chicago Daily News. The sixth witness was Arthur L. Liman, an attorney who served as general counsel to the New York State Special Commission on Attica. In that capacity he supervised an investigation involving 1,600 inmate interviews, at least 75 of which he conducted personally.
5
Both Dean Abel and Dean Fisher testified that the personal interview is so indispensable to effective reporting that the development of interviewing techniques occupies a central place in the curricula of professional journalism schools.
6
In recounting his experience as general counsel to the New York State Special Commission on Attica, Arthur L. Liman gave the following testimony:
'We found that in the group interviews the inmates tended to give us rhetoric, rather than facts; and that . . . in the interest of showing solidarity, inmates were making speeches to us rather than confiding what I knew in many cases to be the fact.
'I should add that the basic problem in conducting interviews at a prison is that it is a society in which inmates face sanctions and rewards not just from the administration but from other inmates; and that when an inmate sees you in private, he will tell you things about the administration that may not only be unfavorable but may in many cases be favorable. I found that when we saw them in group, there was a tendency to say nothing favorable about the administration and instead simply to make a speech about how horrible conditions were. In fact, many of the inmates who would say this in group would say something different when they were seen alone.' 1 App. 290—291.
'There is something which is not stressed in our description of conditions because we found it not to be a major factor at Attica, and that is the question or the issue of physical brutality toward inmates. The press, before this investigation, had played that up as the major grievance at Attica. We found, when we talked to inmates privately, that the incidence of physical confrontation between officers and inmates was rather limited, and that the real grievance was not about those incidents, but rather about what they would feel was a form of psychic repression, depriving people of their manhood. Therefore, I think a lot of the myth about physical beatings was dispelled.' Id., at 292.
7
The history of our prisons is in large measure a chronicle of public indifference and neglect. The Chief Justice, who has provided enlightening leadership on the subject, has soken out frequently against the ignorance and apathy that characterizes our Nation's approach to the problems of our prisons:
'Yet, in spite of all this development of the step-by-step details in the criminal adversary process, we continue, at the termination of that process, to brush under the rug the problems of those who are found guilty and subject to criminal sentence. In a very immature way, we seem to want to remove the problem from public consciousness.
'It is a melancholy truth that it has taken the tragic prison outbreaks of the past three years to focus widespread public attention on this problem.' Burger, Our Options Are Limited, 18 Vill.L.Rev. 165, 167 (1972). See W. Burger, For Whom The Bell Tolls, reprinted at 25 Record of N.Y.C.B.A. (Supp.) 14, 18, 23—24 (1970).
8
Indeed, Professor Meiklejohn identified this aspect of the First Amendment as its paramount value:
'Just so far as, at any point, the citizens who are to decide an issue are denied acquaintance with information or opinion or doubt or disbelief or criticism which is relevant to that issue, just so far the result must be ill-considered, ill-balanced planning for the general good. It is that mutilation of the thinking process of the community against which the First Amendment to the Constitution is directed. The principle of the freedom of speech springs from the necessities of the program of self-government.' A. Meiklejohn, Free Speech 26 (1948) (emphasis in original).
9
The District Court framed this standard in question form: 'In short, are the limitations placed on First Amendment freedoms no greater than is necessary to protect the governmental interests asserted?' 357 F.Supp. 770, 773. 867
exist10 and that their capacity to influence their fellow inmates may have a negative impact on the correctional environment of penal institutions. Whether press inter-
10
The following excerpt from the examination of Hans W. Mattick, Professor of Criminal Justice and Director of the Center for Research in Criminal Justice at the University areas that give them access to goods in leadership:
'Q What are the particular talents or factors that would lead inmates to look upon particular persons among them as leaders?
'A Well, it would depend in part on the native talents of the person, whether he was reasonably articulate, whether he has reasonable social skills. But that wouldn't be sufficient.
'He would also have to have some significant position in the prison, whether that would be the clerk of a cellhouse or whether that would be the assistant to a shop foreman or whether he would be a person who was a porter or a runner, which looks like a low status position to outsiders, but which position has great mobility and therefore you can become a message sender and a message carrier, or persons who work in areas that gibve them access to goods in what is essentially a scarcity economy.
'So people who work in the kitchens or bakery or where other scarce supplies are and therefore can distribute them illegitimately or serve other purposes of that kind, they tend to have leadership.
'Q Does the fact that an inmate is well known outside of prison tend to make him a leader within a prison among the inmates within the prison?
'A It depends a great deal on the circumstances; that is, for instance, notoriety by itself can't bestow leadership.
'For instance, Sirhan Sirhan, for example, or Richard Speck are simply notorious and that doesn't bestow leadership qualities on them. Or someone like Al Capone, for example, may have had great status outside of the prison, but when he was in prison, he became the object of revenge and attacks by persons who wanted to settle old scores, because it was felt that he couldn't implement enough power to retaliate in turn.
'On the other hand, there were persons, confidence men or spectacular burglars or armed robbers with big scores or something of that kind, where their reputation precedes them and follows them into prison, and that then is combined, and also with certain talents and social skill and articulateness, and if it also looks as though they have a future in the free community, either in the illegitimate world or the legitimate world, that can play a part in the phenomenon that we call leadership.' 2 App. 580—581.
11
The other considerations advanced by the Bureau do not justify an absolute interview ban but only indicate the difficulties of case-by-case evalution of interview requests. These arguments are addressed in Part IV.
12
These five jurisdictions are California, Connecticut, Kentucky, Virginia, and Wisconsin.
13
This approach is followed in Alaska, Georgia, Montana, New Jersey, Oregon, Pennsylvania, and South Carolina.
14
The jurisdictions that generally permit personal interviews are Illinois, Maine, Maryland, Massachusetts, Nebraska, North Carolina, Ohio, Vermont, Iowa, New York City, and the District of Columbia. Additionally, one jurisdiction, New Mexico, follows a unique policy that defies categorization.
15
The Court received such evidence from penal administrators in Illinois, Massachussets, New York City, and the District of Columbia.
16
The District Court ordered that the Bureau draft regulations generally permitting press interviews and that exceptions to that policy 'be precisely drawn to prohibit an interview only where it can be established as a matter of probability on the basis of actual experience that serious administrative or disciplinary problems are, in the judgment of the prison administrators directly concerned, likely to be directly and immediately caused by the interview because of either the demonstrated behavior of the inmate concerned or special conditions existing at the inmate's institution at the particular time the interview is requested.' 357 F.Supp. 779, 784. The Government interpreted this order to require that every denial of an interview request be supported by objective evidence, and argued that such a requirement would invade the proper exercise of discretion by prison administrators and undercut their authority to respond to perceived threats to institutional security and order. Apparently responding to these concerns, the Court of Appeals deleted the references to 'likelihood' and 'probability' and recast the relevant portion of the order in the language quoted in the text. The thrust of the order remains, however, that prison administrators must decide on an ad hoc basis whether to grant each particular request for an interview.
17
The experience of prison systems that have generally allowed press interviews does not suggest that the Bureau would be flooded with interview requests. If, however, the number of requests were excessive, prison administrators would have to devise some scheme for allocating interviews among media representatives. I have assumed throughout this discussion that priority of request would control, but I do not mean to foreclose other possibilities. It is a fairly common practice for media representatives to form pools that allow many newsmen to participate, either in person or by proxy, in a news event for which press access is limited. The Bureau could certainly cooperate with the news media in the administration of such a program without favoritism or exclusivity to ensure widespread and dependable dissemination of information about our prisons.
| 23
|
417 U.S. 817
94 S.Ct. 2800
41 L.Ed.2d 495
Eve PELL et al., Appellants,v.Raymond K. PROCUNIER, Director, California Department of Corrections, et al. Raymond K. PROCUNIER, Director, California Department of Corrections, et al., Appellants, v. Booker T. HILLERY, Jr., et al.
Nos. 73—754, 73—918.
Argued April 16 and 17, 1974.
Decided June 24, 1974.
Syllabus
Four California prison inmates and three professional journalists brought this suit in the District Court challenging the constitutionality of a regulation, § 415.071, of the California Department of Corrections Manual, which provides that '(p)ress and other media interview with specific individual inmates will not be permitted.' That provision was promulgated following a violent prison episode that the correction authorities attributed at least in part to the former policy of free face-to-face prisoner-press interviews, which had resulted in a relatively small number of inmates gaining disproportionate notoriety and influence among their fellow inmates. The District Court granted the inmate appellees' motion for summary judgment, holding that § 415.071, insofar as it prohibited inmates from having face-to-face communication with journalists unconstitutionally infringed the inmates' First and Fourteenth Amendment freedoms. The court granted a motion to dismiss with respect to the claims of the media appellants, holding that their rights were not infringed, in view of their otherwise available rights to enter state institutions and interview inmates at random and the even broader access afforded prisoners by the court's ruling with respect to the inmate appellees. The prison officials (in No. 73—754) and the journalists (in No. 73—918) have appealed. Held:
1. In light of the alternative channels of communication that are open to the inmate appellants, § 415.071 does not constitute a violation of their rights of free speech. Pp. 821—828.
(a) A prison inmate retains those First Amendment rights that are not inconsistent with his status as prisoner or with the legitimate penological objectives of the corrections system, and here the restrictions on inmates' free speech rights must be balanced against the State's legitimate interest in confining prisoners to deter crime, to protect society by quarantining criminal offenders for a period during which rehabilitative procedures can be applied, and to maintain the internal security of penal institutions. Pp. 822—824.
(b) Alternative means of communication remain open to the inmates; they can correspond by mail with persons (including media representatives), Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224; they have rights of visitation with family, clergy, attorneys, and friends of prior acquaintance; and they have unrestricted opportunity to communicate with the press or public through their prison visitors. Pp. 824—828.
2. The rights of the media appellants under the First and Fourteenth Amendments are not infringed by § 415.071, which does not deny the press access to information available to the general public. Newsmen, under California policy, are free to visit both maximum security and minimum security sections of California penal institutions and to speak with inmates whom they may encounter, and (unlike members of the general public) are also free to interview inmates selected at random. '(T)he First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.' Branzburg v. Hayes, 408 U.S. 665, 684, 92 S.Ct. 2646, 2658, 33 L.Ed.2d 626. Pp. 829—835.
364 F.Supp. 196, vacated and remanded.
Herman Schwartz, University of Buffalo Law School, for Pell and others.
John T. Murphy, Asst. Atty. Gen. of Cal., for Procunier and others.
Stanley A. Bass, New York City, for Hillery and others.
Mr. Justice STEWART delivered the opinion of the Court.
1
These cases are here on cross-appeals from the judgment of a three-judge District Court in the Northern District of California. The plaintiffs in the District Court were four California prison inmates—Booker T. Hillery, Jr., John Larry Spain, Bobby Bly, and Michael Shane Guile—and three professional journalists—Eve Pell, Betty Segal, and Paul Jacobs. The defendants were Raymond K. Procunier, Director of the California Department of Corrections, and several subordinate officers in that department. The plaintiffs brought the suit to challenge the constitutionality, under the First and Fourteenth Amendments, of § 415.071 of the California Department of Corrections Manual, which provides that '(p)ress and other media interviews with specific individual inmates will not be permitted.' They sought both injunctive and declaratory relief under 42 U.S.C. § 1983. Section 415.071 was promulgated by defendant Procunier under authority vested in him by § 5058 of the California Penal Code and is applied uniformly throughout the State's penal system to prohibit face-to-face interviews between press representatives and individual inmates whom they specifically name and request to interview. In accordance with 28 U.S.C. §§ 2281 and 2284, a three-judge court was convened to hear the case.1
2
The facts are undisputed. Pell, Segal, and Jacobs each requested permission from the appropriate corrections officials to interview inmates Spain, Bly, and Guile, respectively. In addition, the editors of a certain periodical requested permission to visit inmate Hillery to discuss the possibility of their publishing certain of his writings and to interview him concerning conditions at the prison.2 Pursuant to § 415.071, these requests were all denied.3 The plaintiffs thereupon sued to enjoin the continued enforcement of this regulation. The inmate plaintiffs contended that § 415.071 violates their rights of free speech under the First and Fourteenth Amendments. Similarly, the media plaintiffs asserted that the limitation that this regulation places on their newsgathering activity unconstitutionally infringes the freedom of the press guaranteed by the First and Fourteenth Amendments.
3
The District Court granted the inmate plaintiffs' motion for summary judgment holding that § 415.071, insofar as it prohibited inmates from having face-to-face communication with journalists, unconstitutionally infringed their First and FourteenthAmendment freedoms. With respect to the claims of the media plaintiffs, the court granted the defendants' motion to dismiss. The court noted that '(e)ven under § 415.071 as it stood before today's ruling (that inmates' constitutional rights were violated by § 415.071) the press was given the freedom to enter the California institutions and interview at random,' and concluded 'that the even broader access afforded prisoners by today's ruling sufficiently protects whatever rights the press may have with respect to interviews with inmates.' 364 F.Supp. 196, 200.
4
In No. 73—754, Corrections Director Procunier and the other defendants appeal from the judgment of the District Court that § 415.071 infringes the inmate plaintiffs' First and Fourteenth Amendment rights. In No. 73—918, the media plaintiffs appeal the court's rejection of their claims. We noted probable jurisdiction of both appeals and consolidated the cases for oral argument. 414 U.S. 1127, 1155, 94 S.Ct. 862, 912, 38 L.Ed.2d 751, 39 L.Ed.2d 108.
5
* In No. 73—754, the inmate plaintiffs claim that § 415.071, by prohibiting their participation in face-to-face communication with newsmen and other members of the general public, violates their right of free speech under the First and Fourteenth Amendments. Although the constitutional right of free speech has never been thought to embrace a right to require a journalist or any other citizen to listen to a person's views, let alone a right to require a publisher to publish those views in his newspaper, see Avins v. Rutgers, State University of New Jersey, 385 F.2d 151 (CA3 1967); Chicago Joint Board, Amal. Clothing Workers v. Chicago Tribune Co., 435 F.2d 470 (CA7 1970); Associates & Aldrich Co. v. Times Mirror Co., 440 F.2d 133 (CA9 1971), we proceed upon the hypothesis that under some circumstances the right of free speech includes a right to communicate a person's views to any willing listener, including a willing representative of the press for the purpose of publication by a willing publisher.
6
We start with the familiar proposition that '(l)awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.' Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948). See also Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972). In the First Amendment context a corollary of this principle is that a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. Thus, challenges to prison restrictions that are asserted to inhibit First Amendment interests must be analyzed in terms of the legitimate policies and goals of the corrections system, to whose custody and care the prisoner has been committed in accordance with due process of law.
7
An important function of the corrections system is the deterrence of crime. The premise is that by confining criminal offenders in a facility where they are isolated from the rest of society, a condition that most people presumably find undesirable, they and others will be deterred from committing additional criminal offenses. This isolation, of course, also serves a protective function by quarantining criminal offenders for a given period of time while, it is hoped, the rehabilitative processes of the corrections system work to correct the offender's demonstrated criminal proclivity. Thus, since most offenders will eventually return to society, another paramount objective of the corrections system is the rehabilitation of those committed to its custody. Finally, central to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves. It is in the light of these legitimate penal objectives that a court must assess challenges to prison regulations based on asserted constitutional rights of prisoners.
8
The regulation challenged here clearly restricts one manner of communication between prison inmates and members of the general public beyond the prison walls. But this is merely to state the problem, not to resolve it. For the same could be said of a refusal by corrections authorities to permit an inmate temporarily to leave the prison in order to communicate with persons outside. Yet no one could sensibly contend that the Constitution requires the authorities to give even individualized consideration to such requests. Cf. Zemel v. Rusk, 381 U.S. 1, 16—17, 85 S.Ct. 1271, 1280—1281, 14 L.Ed.2d 179 (1965). In order properly to evaluate the constitutionality of § 415.071, we think that the regulation cannot be considered in isolation but must be viewed in the light of the alternative means of communication permitted under the regulations with persons outside the prison. We recognize that there 'may be particular qualities inherent in sustained, face-to-face debate, discussion and questioning,' and 'that (the) existence of other alternatives (does not) extinguis(h) altogether any constitutional interest on the part of the appellees in this particular form of access.' Kleindienst v. Mandel, 408 U.S. 753, 765, 92 S.Ct. 2576, 2583, 33 L.Ed.2d 683 (1972). But we regard the available 'alternative means of (communication as) a relevant factor' in a case such as this where 'we (are) called upon to balance First Amendment rights against (legitimate) governmental . . . interests.' Ibid.
9
One such alternative available to California prison inmates is communication by mail. Although prison regulations, until recently, called for the censorship of statements, inter alia, that 'unduly complain' or 'magnify grievances,' that express 'inflammatory political, racial, religious or other views,' or that were deemed 'defamatory' or 'otherwise inappropriate,' we recently held that 'the Department's regulations authorized censorship of prisoner mail far broader than any legitimate interest of penal administration demands,' and accordingly affirmed a district court judgment invalidating the regulations. Procunier v. Martinez, 416 U.S. 396, 416, 94 S.Ct. 1800, 1813, 40 L.Ed.2d 224 (1974). In addition, we held that '(t)he interests of prisoners and their correspondents in uncensored communication by letter, grounded as it is in the First Amendment, is plainly a 'liberty' interest within the meaning of the Fourteenth Amendment even though qualified of necessity by the circumstance of imprisonment.' Accordingly, we concluded that any 'decision to censor or withhold delivery of a particular letter must be accompanied by minimal procedural safeguards.' Id., at 417, 418, 94 S.Ct., at 1814. Thus, it is clear that the medium of written correspondence affords inmates an open and substantially unimpeded channel for communication with persons outside the prison, including representatives of the news media.
10
Moreover, the visitation policy of the California Corrections Department does not seal the inmate off from personal contact with those outside the prison. Inmates are permitted to receive limited visits from members of their families, the clergy, their attorneys, and friends of prior acquaintance.4 The selection of these categories of visitors is based on the Director's professional judgment that such visits will aid in the rehabilitation of the inmate while not compromising the other legitimate objectives of the corrections system. This is not a case in which the selection is based on the anticipated content of the communication between the inmate and the prospective visitor. If a member of the press fell within any of these categories, there is no suggestion that he would not be permitted to visit with the inmate. More importantly, however, inmates have an unrestricted opportunity to communicate with the press or any other member of the public through their families, friends, clergy, or attorneys who are permitted to visit them at the prison. Thus, this provides another alternative avenue of communication between prison inmates and persons outside the prison.
11
We would find the availability of such alternatives unimpressive if they were submitted as justification for governmental restriction of personal communication among members of the general public. We have recognized, however, that '(t)he relationship of state prisoners and the state officers who supervise their confinement is far more intimate than that of a State and a private citi issues . . . peculiarly within state authority and expertise.' Preiser v. Rodriguez, 411 U.S. 475, 492, 93 S.Ct. 1827, 1837, 36 L.Ed.2d 439 (1973).
12
In Procunier v. Martinez, supra, we could find no legitimate governmental interest to justify the substantial restrictions that had there been imposed on written communication by inmates. When, however, the question involves the entry of people into the prisons for face-to-face communication with inmates, it is obvious that institutional considerations, such as security and related administrative problems, as well as the accepted and legitimate policy objectives of the corrections system itself, require that some limitation be placed on such visitations. So long as reasonable and effective means of communication remain open and no discrimination in terms of content is involved, we believe that, in drawing such lines, 'prison officials must be accorded latitude.' Cruz v. Beto, 405 U.S., at 321, 92 S.Ct., at 1081.
13
In a number of contexts, we have held 'that reasonable 'time, place and manner' regulations (of communicative activity) may be necessary to further significant governmental interests, and are permitted.' Grayned v. City of Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222 (1972); Cox v. New Hampshire, 312 U.S. 569, 575—576, 61 S.Ct. 762, 765—766, 85 L.Ed. 1049 (1941); Poulos v. New Hampshire, 345 U.S. 395, 398, 73 S.Ct. 760, 762, 97 L.Ed. 1105 (1953); Cox v. Louisiana, 379 U.S. 536, 554—555, 85 S.Ct. 453, 464—465, 13 L.Ed.2d 471 (1965); Adderley v. Florida, 385 U.S. 39, 46—48, 87 S.Ct. 242, 246—247, 17 L.Ed.2d 149 (1966). 'The nature of a place, the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable.' Grayned, supra, 408 U.S., at 116, 92 S.Ct., at 2303 (internal quotation marks omitted). The 'normal activity' to which a prison is committed—the involuntary confinement and isolation of large numbers of people, some of whom have demonstrated a capacity for violence—necessarily requires that considerable attention be devoted to the maintenance of security. Although they would not permit prison officials to prohibit all expression or communication by prison inmates, security considerations are sufficiently paramount in the administration of the prison to justify the imposition of some restrictions on the entry of outsiders into the prison for face-to-face contact with inmates.
14
In this case the restriction takes the form of limiting visitations to individuals who have either a personal or professional relationship to the inmate—family, friends of prior acquaintance, legal counsel, and clergy. In the judgment of the state corrections officials, this visitation policy will permit inmates to have personal contact with those persons who will aid in their rehabilitation, while keeping visitations at a manageable level that will not compromise institutional security. Such considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters. Courts cannot, of course, abdicate their constitutional responsibility to delineate and protect fundamental liberties. But when the issue involves a regulation limiting one of several means of communication by an inmate, the institutional objectives furthered by that regulation and the measure of judicial deference owed to corrections officials in their attempt to serve those interests are relevant in gauging the validity of the regulation.
15
Accordingly, in light of the alternative channels of communication that are open to prison inmates,5 we cannot say on the record in this case that this restriction on one manner in which prisoners can communicate with persons outside of prison is unconstitutional. So long as this restriction operates in a neutral fashion, without regard to the content of the expression, it falls within the 'appropriate rules and regulations' to which 'prisoners necessarily are subject,' Cruz v. Beto, supra, 405 U.S., at 321, 92 S.Ct., at 1081, and does not abridge any First Amendment freedoms retained by prison inmates.6
II
16
In No. 73—918, the media plaintiffs ask us to hold that the limitation on press interviews imposed by § 415.071 violates the freedom of the press guaranteed by the First and Fourteenth Amendments. They contend that, irrespective of what First Amendment liberties may or may not be retained by prison inmates, members of the press have a constitutional right to interview any inmate who is willing to speak with them, in the absence of an individualized determination that the particular interview might create a clear and present danger to prison security or to some other substantial interest served by the corrections system. In this regard, the media plaintiffs do not claim any impairment of their freedom to publish, for California imposes no restrictions on what may be published about its prisons, the prison inmates, or the officers who administer the prisons. Instead, they rely on their right to gather news without governmental interference, which the media plaintiffs assert includes a right of access to the sources of what is regarded as newsworthy information.
17
We note at the outset that this regulation is not part of an attempt by the State to conceal the conditions in its prisons or to frustrate the press' investigation and reporting of those conditions. Indeed, the record demonstrates that, under current corrections policy, both the press and the general public are accorded full opportunities to observe prison conditions.7 The Department of Corrections regularly conducts public tours through the prisons for the benefit of interested citizens. In addition, newsmen are permitted to visit both the maximum security and minimum security sections of the institutions and to stop and speak about any subject to any inmates whom they might encounter. If security considerations permit, corrections personnel will step aside to permit such interviews to be confidential. Apart from general access to all parts of the institutions, newsmen are also permitted to enter the prisons to interview inmates selected at random by the corrections officials. By the same token, if a newsman wishes to write a story on a particular prison program, he is permitted to sit in on group meetings and to interview the inmate participants. In short, members of the press enjoy access to California prisons that is not available to other members of the public.
18
The sole limitation on newsgathering in California prisons is the prohibition in § 415.071 of interviews with individual inmates specifically designated by representatives of the press. This restriction is of recent vintage, having been imposed in 1971 in response to a violent episode that the Department of Corrections felt was at least partially attributable to the former policy with respect to face-to-face prisoner-press interviews. Prior to the promulgation of § 415.071, every journalist had virtually free access to interview any individual inmate whom he might wish. Only members of the press were accorded this privilege; other members of the general public did not have the benefit of such an unrestricted visitation policy. Thus, the promulgation of § 415.071 did not impose a discrimination against press access, but merely eliminated a special privilege formerly given to representatives of the press vis-a -vis members of the public generally.8
19
In practice, it was found that the policy in effect prior to the promulgation of § 145.071 had resulted in press attention being concentrated on a relatively small number of inmates who, as a result, became virtual 'public figures' within the prison society and gained a disproportionate degree of notoriety and influence among their
8
It cannot be contended that because California permits family, friends, attorneys, and clergy to visit inmates, it cannot limit visitations by the press. No member of the general public who does not have a personal or professional relationship to the inmate is permitted to enter the prison and name an inmate with whom he would like to engage in face-to-face discourse. Thus, the press is granted the same access in this respect to prison inmates as is accorded any member of the general public. Indeed, as is noted in the text, the aggregate access that the press has to California prisons and their inmates is substantially greater than that of the general public. fellow inmates. Because of this notoriety and influence, these inmates often became the source of severe disciplinary problems. For example, extensive press attention to an inmate who espoused a practice of noncooperation with prison regulations encouraged other inmates to follow suit, thus eroding the institutions' ability to deal effectively with the inmates generally. Finally, in the words of the District Court, on August 21, 1971, '(d)uring an escape attempt at San Quentin three staff members and two inmates were killed. This was viewed by the officials as the climax of mounting disciplinary problems caused, in part, by its liberal posture with regard to press interviews, and on August 23 § 415.071 was adopted to mitigate the problem.' 364 F.Supp., at 198. It is against this background that we consider the media plaintiffs' claims under the First and Fourteenth Amendments.
The constitutional guarantee of a free press 'assures the maintenance of our political system and an open society,' Time, Inc. v. Hill, 385 U.S. 374, 389, 87 S.Ct. 534, 543, 17 L.Ed.2d 456 (1967), and secures 'the paramount public interest in a free flow of information to the people concerning public officials,' Garrison v. Louisiana, 379 U.S. 64, 77, 85 S.Ct. 209, 217, 13 L.Ed.2d 125 (1964). See also New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). By the same token, "(a)ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 2141, 29 L.Ed.2d 822 (1971); Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 574 (1963); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). Correlatively, the First and Fourteenth Amendments also protect the right of the public to receive such information and ideas as are published. Kleindienst v. Mandel, 408 U.S., at 762—763, 92 S.Ct., at 2581 2582; Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 1247, 22 L.Ed.2d 542 (1969).
In Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), the Court went further and acknowledged that 'news gathering is not without its First Amendment protections,' id., at 707, 92 S.Ct., at 2670, for 'without some protection for seeking out the news, freedom of the press could be eviscerated, id., at 681, 92 S.Ct., at 2656. In Branzburg the Court held that the First and Fourteenth Amendments were not abridged by requiring reporters to disclose the identity of their confidential sources to a grand jury when that information was needed in the course of a good-faith criminal investigation. The Court there could 'perceive no basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings (was) insufficient to override the consequential, but uncertain, burden on news gathering that is said to result from insisting that reporters, like other citizens, respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial,' id., at 690—691, 92 S.Ct., at 2661.
In this case, the media plaintiffs contend that § 415.071 constitutes governmental interference with their newsgathering activities that is neither consequential nor uncertain, and that no substantial governmental interest can be shown to justify the denial of press access to specifically designated prison inmates. More particularly, the media plaintiffs assert that, despite the substantial access to California prisons and their inmates accorded representatives of the press—access broader than is accorded members of the public generally—face-to-face interviews with specifically designated inmates is such an effective and superior method of newsgathering that its curtailment amounts to unconstitutional state interference with a free press. We do not agree.
'It has generally been held that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally. . . . Despite the fact that news gathering may be hampered, the press is regularly excluded from grand jury proceedings, our own conferences, the meetings of other official bodies gathering in executive session, and the meetings of private organizations. Newsmen have no constitutional right of access to the scenes of crime or disaster when the general public is excluded.' Branzburg v. Hayes, supra, at 684—685, 92 S.Ct., at 2658. Similarly, newsmen have no constitutional right of access to prisons or their inmates beyond that afforded the general public.
The First and Fourteenth Amendments bar government from interfering in any way with a free press. The Constitution does not, however, require government to accord the press special access to information not shared by members of the public generally.9 It is one thing to say that a journalist is free to seek out sources of information not available to members of the general public, that he is entitled to some constitutional protection of the confidentiality of such sources, cf. Branzburg v. Hayes, supra, and that government cannot restrain the publication of news emanating from such sources. Cf. New York Times Co. v. United States, supra. It is quite another thing to suggest that the Constitution imposes upon government the affirmative duty to make available to journalists sources of information not available to members of the public generally. That proposition finds no support in the words of the Constitution or in any decision of this Court. Accordingly, since § 415.071 does not deny the press access to sources of information available to members of the general public, we hold that it does not abridge the protections that the First and Fourteenth Amendments guarantee.
For the reasons stated, we reverse the District Court's judgment that § 415.071 infringes the freedom of speech of the prison inmates and affirm its judgment that that regulation does not abridge the constitutional right of a free press. Accordingly, the judgment is vacated, and the cases are remanded to the District Court for further proceedings consistent with this opinion.
It is so ordered.
Judgment vacated and case remanded.
Mr. Justice POWELL, concurring in part and dissenting in part.
These cross-appeals concern the constitutionality, under the First and Fourteenth Amendments, of a regulation of the California Department of Corrections that prohibits all personal interviews of prison inmates by representatives of the news media. This regulation is substantially identical to the United States Bureau of Prisons policy statement whose validity is at issue in Saxbe v. Washington Post Co., 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514. For the reasons stated in my dissenting opinion in that case, post, at 850, 94 S.Ct., at 850, I would hold that California's absolute ban against prisoner-press interviews impermissibly restrains the ability of the press to perform its constitutionally established function of informing the people on the conduct of their government. Accordingly, I dissent from the judgment of the Court.
The California cross-appeals differ from the Washington Post case in one significant respect. Here the constitutionality of the interview ban is challenged by prisoners as well as newsmen. Thus these appeals, unlike Washington Post, raise the question whether inmates as individuals have a personal constitutional right to demand interviews with willing reporters. Because I agree with the majority that they do not, I join Part I of the opinion of the Court.[836]
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.
These cases involve the constitutionality, under the First and Fourteenth Amendments, of prison regulations limiting communication between state and federal prisoners and the press. Nos. 73—754 and 73—918 are cross-appeals from the judgment of a three-judge District Court for the Northern District of California. 364 F.Supp. 196. Suit was brought in that court by four California state prisoners and three professional journalists challenging the constitutionality of California Department of Corrections Manual § 415.071 which imposes an absolute ban on media interviews with individually designated inmates.
The court upheld the prisoners' claim that this regulation is violative of their right of free speech, and, in No. 73—754, the Director of the California Department of Corrections appeals from the court's injunction against further enforcement of the regulation. As to the journalists' claim, the court noted: 'The media plaintiffs herein and amicus curiae argue that § 415.071 is violative of not only the prisoners' First Amendment rights, but also the press'. The court disagrees.' 364 F.Supp., at 199. In No. 73—918, the journalists appeal this rejection of their claim.
No. 73—1265 involves a media challenge to Federal Bureau of Prisons Policy Statement 1220.1A, 4nb)(6), which prohibits press interviews with any particular federal prisoner in any medium security or maximum security facility. The District Court held the total ban violative of the First Amendment's free press guarantee and enjoined its enforcement. 357 F.Supp. 770. The Court of Appeals affirmed sub nom. Washington Post Co. v. Kleindienst, 161 U.S.App.D.C. 75, 494 F.2d 994. As the majority notes, '(t)he policies of the Federal Bureau of Prisons regarding visitations to prison inmates do not differ significantly from the California policies' here under review.
*
In analyzing the prisoner challenge to California's absolute ban on media interviews with individual inmates, I start with the proposition that 'foremost among the Bill of Rights of prisoners in this country, whether under state or federal detenton, is the First Amendment. Prisoners are still 'persons' entitled to all constitutional rights unless their liberty has been constitutionally curtailed by procedures that satisfy all the requirement of due process. . . . Free speech and press within the meaning of the First Amendment are, in my judgment, among the pre-eminent privileges and immunities of all citizens.' Procunier v. Martinez, 416 U.S. 428—429, 94 S.Ct. 1800, 1818, 40 L.Ed.2d 224 (Douglas, J., concurring in judgment). With that premise, I cannot agree with the Court that California's grossly overbroad restrictions on prisoner speech are constitutionally permissible. I agree that prison discipline, inmate safety, and rehabilitation must be considered in evaluating First Amendment rights in the prison context. First Amendment principles must always be applied 'in light of the special characteristics of the . . . environment.' Tinker v. Des Moines Independent School District, 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731; Healy v. James, 408 U.S. 169, 180, 92 S.Ct. 2338, 2345, 33 L.Ed.2d 266. But the prisoners here do not contend that prison officials are powerless to impose reasonable limitations on visits by the media which are necessary in particularized circumstances to maintain security, discipline, and good order
All that the prisoners contend, and all that the courts below found, is that these penal interests cannot be used as a justification for an absolute ban on media interviews because '(b)road prophylactic rules in the area of free expression are suspect. . . . Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.' NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405. And see Cantwell v. Connecticut, 310 U.S. 296, 311, 60 S.Ct. 900, 906, 84 L.Ed. 1213.
It is true that the prisoners are left with other means of expression such as visits by relatives and communication by mail. But the State can hardly defend an overly broad restriction on expression by demonstrating that it has not eliminated expression completely.
As Mr. Justice Black has said:
'I cannot accept my Brother Harlan's view (in dissent) that the abridgment of speech and press here does not violate the First Amendment because other methods of communication are left open. This reason for abridgment strikes me as being on a par with holding that governmental suppression of a newspaper in a city would not violate the First Amendment because there continue to be radio and television stations. First Amendment freedoms can no more validly be taken away by degrees than by one fell swoop.' NLRB v. Fruit Packers, 377 U.S. 58, 79—80, 84 S.Ct. 1063, 1075, 12 L.Ed.2d 129 (concurring opinion).
A
State might decide that criticism of its affairs could be reduced by prohibiting all its employees from discussing governmental operations in interviews with the media, leaving criticism of the State to those with the time, energy, ability, and inclination to communicate through the mails. The prohibition here is no less offensive to First Amendment principles; it flatly prohibits interview communication with the media on the government's penal operations by the only citizens with the best knowledge and real incentive to discuss them
I
agree with the court below that the State's interest in order and prison discipline cannot justify its total ban on all media interviews with any individually designated inmate on any matter whatsoever. Such a coarse attempt at regulation is patently unconstitutional in an area where '(p)recision of regulation must be the touchstone.' NAACP v. Button, supra, 371 U.S., at 438, 83 S.Ct., at 340; Elfbrandt v. Russell, 384 U.S. 11, 18, 86 S.Ct. 1238, 1241, 16 L.Ed.2d 321. I would affirm the District Court's judgment in this regard
II
In Nos. 73—918 and 73—1265, the media claim that the state and federal prison regulations here, by flatly prohibiting interviews with inmates selected by the press, impinge upon the First Amendment's free press guarantee, directly protected against federal infringement and protected against state infringement by the Fourteenth Amendment. In rejecting the claim, the Court notes that the ban on access to prisoners applies as well to the general public, and it holds that 'newsmen have no constitutional right of access to prisons or their inmates beyond that afforded the general public.' 417 U.S. 817, at 834, 94 S.Ct. 2800, at 2810, 41 L.Ed.2d 495.
In dealing with the free press guarantee, it is important to note that the interest it protects is not possessed by the media themselves. In enjoining enforcement of the federal regulation in No. 73—1265, Judge Gesell did not vindicate any right of the Washington Post, but rather the right of the people, the true sovereign under our constitutional scheme, to govern in an informed manner. 'The press has a preferred position in our constitutional scheme, not to enable it to make money, not to set newsmen apart as a favored class, but to bring fulfillment to the public's right to know. The right to know is crucial to the governing powers of the people.' Branzburg v. Hayes, 408 U.S. 665, 721, 92 S.Ct. 2646, 2692, 33 L.Ed.2d 626 (Douglas, J., dissenting).
Prisons, like all other public institutions, are ultimately the responsibility of the populace. Crime, like the economy, health, education, defense, and the like, is a matter of grave concern in our society and people have the right and the necessity to know not only of the incidence of crime but of the effectiveness of the system designed to control it. 'On any given dat, approximately 1,500,000 people are under the authority of (federal, state and local prison) systems. The cost to taxpayers is over one billion dollars annually. Of those individuals sentenced to prison, 98% will return to society.'1 The public's interest in being informed about prisons is thus paramount.
As with the prisoners' free speech claim, no one asserts that the free press right is such that the authorities are powerless to impose reasonable regulations as to the time, place, and manner of interviews to effectuate prison discipline and order. The only issue here is whether the complete ban on interviews with inmates selected by the press goes beyond what is necessary for the protection of these interests and infringes upon our cherished right of a free press. As the Court of Appeals noted in No. 73 1265: '(W)hile we do not question that the concerns voiced by the Bureau (of Prisons) are legitimate interests that merit protection, we must agree with the District Court that they do not, individually or in total, justify the sweeping absolute ban that the Bureau has chosen to impose.' 161 U.S.App.D.C., at 86, 494 F.2d, at 1005.
It is thus not enouigh to note that the press—the institution which '(t)he Constitution specifically selected . . . to play an important role in the discussion of public affairs'2—is denied no more access to the prisons than is denied the public generally. The prohibition of visits by the public has no practical effect upon their right to know beyond that achieved by the exclusion of the press. The average citizen is most unlikely to inform himself about the operation of the prison system by requesting an interview with a particular inmate with whom he has no prior relationship. He is likely instead, in a society which values a free press, to rely upon the media for information.
It is indeed ironic for the Court to justify the exclusion of the press by noting that the government has gone beyond the press and expanded the exclusion to include the public. Could the government deny the press access to all public institutions and prohibit interviews with all governmental employees? Could it find constitutional footing by expanding the ban to deny such access to everyone?
I
agree with the courts below in No. 73—1265 that the absolute ban on press interviews with specifically designated federal inmates is far broader than is necessary to protect any legitimate governmental interests and is an unconstitutional infringement on the public's right to know protected by the free press guarantee of the First Amendment. I would affirm the judgment in this regard. Since this basic right is guaranteed against state infringement by the application of the First Amendment to the States through the Fourteenth,3 California's absolute ban can fare no better. I would reverse the District Court's rejection of this claim in No. 73—918.
1
This litigation was first initiated before a single judge and proceeded for nearly a year with the court's attention focused on the interview practice at San Quentin State Penitentiary, where all the inmate plaintiffs are confined, where the interviews sought by the media plaintiffs were to occur, and where all the defendants, except Mr. Procunier, are employed. After the matter was briefed and argued, the single judge preliminarily enjoined the enforcement of § 415.071. Only then did the defendants bring to the court's attention that § 415.071 was a regulation of statewide application. Thereafter a three-judge court was convened to pass on the constitutional validity of the regulation.
2
The periodical has since ceased publication and its editors did not join the media plaintiffs in this litigation.
3
There is some question as to whether the interview between Hillery and the magazine editors was denied under the authority of § 415.071. Department of Corrections interview policy permits, on a case-by-case basis, meetings between inmate authors and their publishers. The defendants contend that the interview was denied here because the officials made an individualized determination that the meeting was not in fact necessary to effectuate the publication of Hillery's works. Hillery, on the other hand, notes that the editors had indicated to the prison officials that they also wished to discuss with him the conditions in the prison in order to publish an article on that subject. Thus, it appears that the denial was in all likelihood based at least in part on § 415.071.
4
This policy does not appear to be codified or otherwise expressly articulated in any generally applicable rule or regulation. The statement of visiting privileges for San Quentin State Penitentiar indicates that all visitors must be approved by the corrections officials and must be either 'members of the family or friends of long standing.' It also permits visits by attorneys to their clients. Although nothing is said in this statement about visits by members of the clergy, there is no dispute among the parties that the practice of the Department of Corrections is to permit such visits. There is also no disagreement among the parties that this visitation policy is generally applied by the Department throughout the state corrections system.
5
It is suggested by the inmate appellees that the use of the mails as an alternative means of communication may not be effective in the case of prisoners who are inarticulate or even illiterate. There is no indication, however, that any of the four inmates before the Court suffer from either of these disabilities. Indeed, the record affirmatively shows that two of the inmates are published writers. Although the complaint was filed as a class action, the plaintiffs never moved the District Court to certify the case as a class action as required by Fed.Rules Civ.Proc. 23(b)(3) and (c). Thus, the short answer to the inmates' contention is that there is neither a finding by the District Court nor support in the record for a finding that the alternative channels of communication are not an effective means for the inmate appellees to express themselves to persons outside the prison.
Even with respect to inmates who may not be literate or articulate, however, there is no suggestion that the corrections officials would not permit such inmates to seek the aid of fellow inmates or of family and friends who visit them to commit their thoughts to writing for communication to individuals in the general public. Cf. Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969). Merely because such inmates may need assistance to utilize one of the alternative channels does not make it an ineffective alternative, unless, of course, the State prohibits the inmate from receiving such assistance.
6
The inmates argue that restricting their access to press representatives unconstitutionally burdens their First and Fourteenth Amendment right to petition the government for the redress of grievances. Communication with the press, the inmates contend, provides them with their only effective opportunity to communicate their grievances, through the channel of public opinion, to the legislative and executive branches of the government. We think, however, that the alternative means of communication with the press that are available to prisoners, together with the substantial access to prisons that California accords the press and other members of the public, see infra, at 2808, satisfies whatever right the inmates may have to petition the government through the press.
We also note that California accords prison inmates substantial opportunities to petition the executive, legislative, and judicial branches of government directly. Section 2600 of the California Penal Code permits an inmate to correspond confidentially with any public officeholder. And various rules promulgated by the Department of Corrections explicitly permit an inmate to correspond with the Governor, any other elected state or federal official, and any appointed head of a state or federal agency. Similarly, California has acted to assure prisoners the right to petition for judicial relief. See, e.g., In re Jordan, 7 Cal.3d 930, 103 Cal.Rptr. 849, 500 P.2d 873 (1972); In re Van Geldern, 5 Cal.3d 832, 97 Cal.Rptr. 698, 489 P.2d 578 (1971); In re Harrell, 2 Cal.3d 675, 87 Cal.Rptr. 504, 470 P.2d 640 (1970). Section 845.4 of the California Government Code also makes prison officials liable for intentional interference with the right of a prisoner to obtain judicial relief from his confinement.
7
This policy reflects a recognition that the conditions in this Nation's prisons are a matter that is both newsworthy and of great public importance. As The Chief Justice has commented, we cannot 'continue . . . to brush under the rug the problems of those who are found guilty and subject to criminal sentence. . . . It is a melancholy truth that it has taken the tragic prison outbreaks of the past three years to focus widespread public attention on this problem.' Burger, Our Options are Limited, 18 Vill.L.Rev. 165, 167 (1972). Along the same lines, The Chief Justice has correctly observed that '(i)f we want prisoners to change, public attitudes toward prisoners and ex-prisoners must change. . . . A visit to most prisons will make you a zealot for prison reform.' W. Burger, For Whom the Bell Tolls, reprinted at 25 Record of N.Y.C.B.A. (Supp.) 14, 20, 21 (1970).
9
As Mr. Chief Justice Warren put the matter in writing for the Court in Zemel v. Rusk, 381 U.S. 1, 16—17, 85 S.Ct. 1271, 1281, 14 L.Ed.2d 179 (1965), '(t)here are few restrictions on action which could not be clothed by ingenious argument in the garb of decreased data flow. For example, the prohibition of unauthorized entry into the White House diminishes the citizen's opportunities to gather information he might find relevant to his opinion of the way the country is being run, but that does not make entry into the White House a First Amendment right. The right to speak and publish does not carry with it the unrestrained right to gather information.'
1
Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the House Committee on the Judiciary, 93d Cong., 2d Sess., Report on the Inspection of Federal Facilities at Leavenworth Penitentiary and the Medical Center for Federal Prisoners 2 Comm.Print 1974).
2
Mills v. Alabama, 384 U.S. 214, 219, 86 S.Ct. 1434, 1437, 16 L.Ed.2d 484.
3
'While Mr. Chief Justice Hughes in Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117, stated that the First Amendment was applicable to the States by reason of the Due Process Clause of the Fourteenth, it has become customary to rest on the broader foundation of the entire Fourteenth Amendment. Free speech and press within the meaning of the First Amendment is, in my judgment, one of the pre-eminent privileges and immunities of all citizens.' Procunier v. Martinez, 416 U.S. 396, 428—429, 94 S.Ct. 1800, 1819, 40 L.Ed.2d 224 (Douglas, J., concurring in judgment).
| 23
|
418 U.S. 153
94 S.Ct. 2750
41 L.Ed.2d 642
Billy JENKINS, Appellant,v.State of GEORGIA.
No. 73—557.
Argued April 15, 1974.
Decided June 24, 1974.
Syllabus
Appellant was convicted, prior to the announcement of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, and companion cases, of violating Georgia's obscenity statute for showing the film 'Carnal Knowledge' in a motion picture theater. The jury had been instructed on obscenity under that statute, which defines obscene material in terms similar to the definition in Memoirs v. Massachusetts, 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1. The Georgia Supreme Court affirmed. Held:
1. Appellant, whose conviction was on appeal at the time of the announcement of Miller, is entitled to any benefit available thereunder. Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590. P. 155.
2. There is no constitutional requirement that juries be instructed in state obscenity cases to apply the standards of a hypothetical statewide community—Miller approving, but not mandating, such an instruction—and jurors may properly be instructed to apply 'community standards,' without a specification of the 'community' by the trial court P. 157.
3. The film is not obscene under the constitutional standards announced in Miller and appellant's conviction therefore contravened the First and Fourteenth Amendments. Pp. 157—161.
(a) Juries do not have unbridled discretion in determining what is 'patently offensive' since 'no one will be subject to prosecution for the sale or exposure of obscene materials (that do not) depict or describe patently offensive 'hard core' sexual conduct . . ..' Miller, supra, at 27, 93 S.Ct. at 2616. P. 160 161.
(b) This Court's own view of the film impels the conclusion that the film's depiction of sexual conduct is not patently offensive. The camera does not focus on the bodies of actors during scenes of 'ultimate sexual acts,' nor are the actors' genitals exhibited during those scenes. The film shows occasional nudity, but nudity alone does not render material obscene under Miller's standards. P. 161.
230 Ga. 726, 199 S.E.2d 183, reversed.
Louis Nizer, New York City, for appellant.
Tony H. Hight, Atlanta, Ga., for appellee.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Appellant was convicted in Georgia of the crime of distributing obscene material. His conviction, in March 1972, was for showing the film 'Carnal Knowledge' in a movie theater in Albany, Georgia. The jury that found appellant guilty was instructed on obscenity pursuant to the Georgia statute, which defines obscene material in language similar to that of the definition of obscenity set forth in this Court's plurality opinion in Memoirs v. Massachusetts, 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1 (1966):
2
'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.' Ga.Code Ann. § 26—2101(b) (1972).1
3
We hold today in Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590, that defendants convicted prior to the announcement of our Miller decisions but whose convictions were on direct appeal at that time should receive any benefit available to them from those decisions. We conclude here that the film 'Carnal Knowledge' is not obscene under the constitutional standards announced in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), and that the First and Fourteenth Amendments therefore require that the judgment of the Supreme Court of Georgia affirming appellant's conviction be reversed.
4
Appellant was the manager of the theater in which 'Carnal Knowledge' was being shown. While he was exhibiting the film on January 13, 1972, local law enforcement officers seized it pursuant to a search warrant. Appellant was later charged by accusation, Ga.Code Ann. § 27—704 (1972), with the offense of distributing obscene material.2 After his trial in the Superior Court of Dougherty County, the jury, having seen the film and heard testimony, returned a general verdict of guilty on March 23, 1972.3 Appellant was fined $750 and sentenced to 12 months' probation. He appealed to the Supreme Court of Georgia, which by a divided vote affirmed the judgment of conviction on July 2, 1973. That court stated that the definition of obscenity contained in the Georgia statute was 'considerably more restrictive' than the new test set forth in the recent case of Miller v. California, supra, and that the First Amendment does not protect the commercial exhibition of 'hard core' pornography. The dissenting Justices, in addition to other disagreements with the court, thought that 'Carnal Knowledge' was entitled to the protection of the First and Fourteenth Amendments. Appellant then appealed to this Court and we noted probable jurisdiction, 414 U.S. 1090, 94 S.Ct. 1090, 38 L.Ed.2d 547 (1973).
5
We agree with the Supreme Court of Georgia's implicit ruling that the Constitution does not require that juries be instructed in state obscenity cases to apply the standards of a hypothetical statewide community. Miller approved the use of such instructions; it did not mandate their use. What Miller makes clear is that state juries need not be instructed to apply 'national standards.' We also agree with the Supreme Court of Georgia's implicit approval of the trial court's instructions directing jurors to apply 'community standards' without specifying what 'community.' Miller held that it was constitutionally permissible to permit juries to rely on the understanding of the community from which they came as to contemporary community standards, and the States have considerable latitude in framing statutes under this element of the Miller decision. A State may choose to define an obscenity offense in terms of 'contemporary community standards' as defined in Miller without further specification, as was done here, or it may choose to define the standards in more precise geographic terms, as was done by California in Miller.
6
We now turn to the question of whether appellant's exhibition of the film was protected by the First and Fourteenth Amendments, a question which appellee asserts is not properly before us because appellant did not raise it on his state appeal. But whether or not appellant argued this constitutional issue below, it is clear that the Supreme Court of Georgia reached and decided it. That is sufficient under our practice. Raley v. Ohio, 360 U.S. 423, 436, 79 S.Ct. 1257, 1265, 3 L.Ed.2d 1344 (1959). We also note that the trial court instructed the jury on charges other than the distribution charge.4 However, the jury returned a general verdict and appellee does not suggest that appellant's conviction can be sustained on these alternative grounds. Cf. Stromberg v. California, 283 U.S. 359, 367—368, 51 S.Ct. 532, 535, 75 L.Ed. 1117 (1931).
7
There is little to be found in the record about the film 'Carnal Knowledge' other than the film itself.5 However, appellant has supplied a variety of information and critical commentary, the authenticity of which appellee does not dispute. The film appeared on many 'Ten Best' lists for 1971, the year in which it was released. Many but not all of the reviews were favorable. We believe that the following passage from a review which appeared in the Saturday Review is a reasonably accurate description of the film:
8
'(It is basically a story) of two young college men, roommates and lifelong friends forever preoccupied with their sex lives. Both are first met as virgins. Nicholson is the more knowledgeable and attractive of the two; speaking colloquially, he is a burgeoning bastard. Art Garfunkel is his friend, the nice but troubled guy straight out of those early Feiffer cartoons, but real. He falls in love with the lovely Susan (Candice Bergen) and unknowingly shares her with his college buddy. As the 'safer' one of the two, he is selected by Susan for marriage.
9
'The time changes. Both men are in their thirties, pursuing successful careers in New York. Nicholson has been running through an average of a dozen women a year but has never managed to meet the right one, the one with the full bosom, the good legs, the properly rounded bottom. More than that, each and every one is a threat to his malehood and peace of mind, until at last, in a bar, he finds Ann-Margret, an aging bachelor girl with striking cleavage and, quite obviously, something of a past. 'Why don't we shack up?' she suggests. They do and a horrendous relationship ensues, complicated mainly by her paranoidal desire to marry. Meanwhile, what of Garfunkel? The sparks have gone out of his marriage, the sex has lost its savor, and Garfunkel tries once more. And later, even more foolishly, again.'6
10
Appellee contends essentially that under Miller the obscenity vel non of the film 'Carnal Knowledge' was a question for the jury, and that the jury having resolved the question against appellant, and there being some evidence to support its findings, the judgment of conviction should be affirmed. We turn to the language of Miller to evaluate appellee's contention.
11
Miller states that the questions of what appeals to the 'prurient interest' and what is 'patently offensive' under the obscenity test which it formulates are 'essentially questions of fact.' 413 U.S., at 30, 93 S.Ct., at 2618. '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 . . .. To require a State to structure obscenity proceedings around evidence of a national 'community standard' would be an exercise in futility.' Ibid. We held in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973), decided on the same day, that expert testimony as to obscenity is not necessary when the films at issue are themselves placed in evidence. Id., at 56, 93 S.Ct. at 2634.
12
But all of this does not lead us to agree with the Supreme Court of Georgia's apparent conclusion that the jury's verdict against appellant virtually precluded all further appellate review of appellant's assertion that his exhibition of the film was protected by the First and Fourteenth Amendments. Even though questions of appeal to the 'prurient interest' or of patent offensiveness are 'essentially questions of fact,' it would be a serious misreading of Miller to conclude that juries have unbridled discretion in determining what is 'patently offensive.' Not only did we there say that 'the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary,' 413 U.S., at 25, 93 S.Ct., at 2615, but we made it plain that under that holding '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. . . .' Id., at 27, 93 S.Ct., at 2616.
13
We also took pains in Miller to 'give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced,' that is, the requirement of patent offensiveness. Id., at 25, 93 S.Ct., at 2615. These examples include 'representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated,' and 'representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.' Ibid. While this did not purport to be an exhaustive catalog of what juries might find patently offensive, it was certainly intended to fix substantive constitutional limitations, deriving from the First Amendment, on the type of material subject to such a determination. It would be wholly at odds with this aspect of Miller to uphold an obscenity conviction based upon a defendant's depiction of a woman with a bare midriff, even though a properly charged jury unanimously agreed on a verdict of guilty.
14
Our own viewing of the film satisfies us that 'Carnal Knowledge' could not be found under the Miller standards to depict sexual conduct in a patently offensive way. Nothing in the movie falls within either of the two examples given in Miller of material which may constitutionally be found to meet the 'patently offensive' element of those standards, nor is there anything sufficiently similar to such material to justify similar treatment. While the subject matter of the picture is, in a broader sense, sex, and there are scenes in which sexual conduct including 'ultimate sexual acts' is to be understood to be taking place, the camera does not focus on the bodies of the actors at such times. There is no exhibition whatever of the actors' genitals, lewd or otherwise, during these scenes. There are occasional scenes of nudity, but nudity alone is not enough to make material legally obscene under the Miller standards.
15
Appellant's showing of the film 'Carnal Knowledge' is simply not the 'public portrayal of hard core sexual conduct for its own sake, and for the ensuing commercial gain' which we said was punishable in Miller. Id., at 35, 93 S.Ct., at 2621. We hold that the film could not, as a matter of constitutional law, be found to depict sexual conduct in a parently offensive way, and that it is therefore not outside the protection of the First and Fourteenth Amendments because it is obscene. No other basis appearing in the record upon which the judgment of conviction can be sustained, we reverse the judgment of the Supreme Court of Georgia.
16
Reversed.
17
Mr. Justice DOUGLAS, being of the view that any ban on obscenity is prohibited by the First Amendment, made applicable to the States through the Fourteenth, concurs in the reversal of this conviction. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 70 73, 93 S.Ct. 2628, 2663, 37 L.Ed.2d 446 (1973) (Douglas, J., dissenting).
18
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL join, concurring in the result.
19
Adopting a restatement of the Roth-Memoirs* definition of 'obscenity,' the Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), held that obscene material could be regulated, provided that '(a) . . . 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest . . .; (b) . . . the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) . . . the work, taken as a whole, lacks serious literary, artistic, political or scientific value.' Id., at 24, 93 S.Ct., at 2615. It was my view then—and it remains so—that the Court's reformulation hardly represented a solution to 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 opinion). Today's decision confirms my observation in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973), that the Court's new formulation does not extricate us from the mire of case-by-case determinations of obscenity. I there noted, in dissent:
20
'Ultimately, the reformation 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 (, 416 U.S. 15, 25, 93 S.Ct. 2607, 37 L.Ed.2d 419), 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.' 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.' 413 U.S., at 100—101, 93 S.Ct., at 2656. (Footnote omitted.)
21
After the Court's decision today, there can be no doubt that Miller requires appellate courts—including this Court—to review independently the constitutional fact of obscenity. Moreover, the Court's task is not limited to reviewing a jury finding under part (c) of the Miller test that 'the work, taken as a whole, lack(ed) serious literary, artistic, political, or scientific value.' 413 U.S., at 24, 93 S.Ct., at 2615. Miller also requires independent review of a jury's determination under part (b) of the Miller test that 'the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.' Ibid. As the Court notes, at 160:
22
'Even though questions of . . . patent offensiveness are 'essentially questions of fact,' it would be a serious misreading of Miller to conclude that juries have unbridled discretion in determining what is 'patently offensive.' Not only did we there say that 'the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary,' 413 U.S., at 25, 93 S.Ct., at 2615, but we made it plain that under that holding '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. . . .' Id., at 27, 93 S.Ct., at 27.'
23
In order to make the review mandated by Miller, the Court was required to screen the film, 'Carnal Knowledge' and make an independent determination of obscenity vel non. Following that review, the Court holds that 'Carnal Knowledge' 'could not, as a matter of constitutional law, be found to depict sexual conduct in a patently offensive way, and that it is therefore not outside the protection of the First and Fourteenth Amendments because it is obscene.' Ante, at 161.
24
Thus, it is clear that as long as the Miller test remains in effect '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.' Paris Adult Theatre I v. Slaton, 413 U.S., at 92, 93 S.Ct., at 2652 (Brennan, J., dissenting). Because of the attendant uncertainty of such a process and its inevitable institutional stress upon the judiciary, I continue to adhere to my view 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.' Id., at 113, 93 S.Ct., at 2662. It is clear that, by that constitutional standard, the Georgia obscenity statutes under which appellant Jenkins was convicted are constitutionally overbroad and therefore facially invalid. I therefore concur in the result in the Court's reversal of Jenkins' conviction.
1
Section 26—2101 is entitled 'Distributing obscene materials.' Subsection (a) of § 26—2101 provides in relevant part: 'A person commits the offense of distributing ofscene materials when he . . . exhibits or otherwise disseminates to any person any obscene material of any description, knowing the obscene nature thereof . . ..' Subsection (c) of § 26—2101 provides that '(material), not otherwise obscene, may be obscene under this section if the distribution thereof . . . is a commercial exploitation of erotica solely for the sake of their prurient appeal.' Subsection (d) provides that a first offense under the section shall be punished as a misdemeanor and that any subsequent offense shall be punished by one to five years' imprisonment and/or a fine not to exceed $5,000.
2
The accusation, App. 8, charged appellant 'with the offense of Distributing Obscene Material' for knowingly exhibiting a motion picture to the general public which contained conduct showing '(a) an act of sexual intercourse, (b) a lewd exposure of the sexual organs, (c) a lewd appearance in a state of partial or complete nudity, (d) a lewd caress or indecent fondling of another person' contrary to the laws of Georgia. The latterquoted language appears in Ga.Code Ann. § 26—2011, entitled 'Public indecency,' which makes performance of any of the listed acts in a public place a misdemeanor. Under Ga.Code Ann § 26—2105, it is a crime to exhibit a motion picture portraying acts which would constitute 'public indecency' under § 26—2011 if performed in a public place. Appellant's arrest warrant specified § 26—2105 as the statute he was charged with violating. In view of our holding today, we need not reach appellant's contention that he was denied due process because the warrant specified only § 26—2105, while the jury was allowed to convict under § 26—2101. However, we note that appellant's demurrer to the accusation demonstrates his awareness that he was being charged with the § 26—2101 offense, App. 9, and that he requested numerous instructions on obscenity, Id., at 47 49.
3
Appellant's trial jury was alternatively instructed under subsections (a) and (c) of § 26—2101 (pandering), see n. 1, supra, and under § 26—2105, see n. 2, supra.
4
See n. 3, supra.
5
Appellant testified that the film was 'critically acclaimed as one of the ten best pictures of 1971 and Ann Margret has received an Academy Award nomination for her performance in the picture.' He further testified that 'Carnal Knowledge' had played in 29 towns in Georgia and that it was booked in 50 or 60 more theaters for spring and summer showing. App. 24.
6
Review of 'Carnal Knowledge' by Hollis Alpert, Saturday Review, July 3, 1971, p. 18.
*
See Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), and Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966).
| 23
|
418 U.S. 87
94 S.Ct. 2887
41 L.Ed.2d 590
William L. HAMLING et al., Petitioners,v.UNITED STATES.
No. 73—507.
Argued April 15, 1974.
Decided June 24, 1974.
Rehearing Denied Oct. 15, 1974.
See 419 U.S. 885, 95 S.Ct. 157.
Syllabus
Petitioners were convicted of mailing and conspiring to mail an obscene advertising brochure with sexually explicit photographic material relating to their illustrated version (hereafter Illustrated Report) of an official report on obscenity, in violation of 18 U.S.C. §§ 2, 371, and 1461. The indictment under § 1461 charged petitioners in the language of the statute, which provides in pertinent part that obscene material and written information as to where it may be obtained is nonmailable and that '(w)hoever knowingly uses the mails for the mailing . . . of anything declared by this section . . . to be nonmailable . . .' commits a crime. The jury was unable to reach a verdict on the counts charging the mailing of the allegedly obscene Illustrated Report. Following affirmance of the convictions by the Court of Appeals, this Court decided Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, and companion cases (hereafter collectively the Miller cases), after considering which, the Court of Appeals denied a petition for rehearing. Petitioners challenge their convictions based upon the pre-Miller obscenity test in Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1, and also as failing to meet the standards of the Miller cases; and challenge various procedural and evidentiary rulings of the District Court, as well as its instructions. Held:
1. Title 18 U.S.C. § 1461, 'applied according to the proper standard for judging obscenity, do(es) not offend constitutional safeguards against convictions based upon protected material, or fail to give men in acting adequate notice of what is prohibited,' Roth v. United States, 354 U.S. 476, 492, 77 S.Ct. 1304, 1313, 1 L.Ed.2d 1498. P. 98—99.
2. The jury's determination that the brochure was obscene was supported by the evidence and was consistent with the Memoirs obscenity formulation. P. 100.
3. The inability of the jury to reach a verdict on the counts charging distribution of the Illustrated Report had no relevance to its finding that the brochure was obscene, consistency in verdicts not being required, and the brochure being separable from the Illustrated Report. Pp. 100—101.
4. The standards established in the Miller case do not, as applied to petitioners' pre-Miller conduct, require a reversal of their convictions. Pp. 101—117.
(a) Defendants like petitioners, who were convicted prior to the decisions in the Miller cases but whose convictions were on direct appeal at that time, should receive any benefit available to them from those decisions. Pp. 101—102.
(b) The instruction to the jury on the application of national community standards of obscenity was not constitutionally improper, since in rejecting the view that the First and Fourteenth Amendments require that the proscription of obscenity be based on uniform national standards, the Court in the Miller cases did not require as a constitutional matter the substitution of some smaller geographical area into the same sort of formula; the test was stated in terms of the understanding of the 'average person, applying contemporary community standards.' The Court's holding in Miller that California could constitutionally proscribe obscenity in terms of a 'statewide' standard did not mean that any such precise geographic area is required as a matter of constitutional law. Reversal is required in pre-Miller cases only where there is a probability that the excision of the references to the 'nation as a whole' in the instruction dealing with community standards would have materially affected the deliberations of the jury. Pp. 103—110.
(c) Construing 18 U.S.C. § 1461 as being limited to the sort of 'patently offensive representations or descriptions of that specific 'hard core' sexual conduct given as examples in Miller v. California,' the statute is not unconstitutionally vague, it being plain that the brochure is a form of hard-core pornography well within the permissibly proscribed depictions described in Miller. The enumeration of specific categories of obscene material in Miller did not purport to proscribe, for purposes of 18 U.S.C. § 1461, conduct that had not previously been thought criminal but instead added a 'clarifying gloss' to the prior construction, making the statute's meaning 'more definite.' Bouie v. City of Columbia. 378 U.S. 347, 353, 84 S.Ct. 1697, 1702, 12 L.Ed.2d 894. Pp. 110—116.
(d) Miller's rejection of Memoirs' 'social value' formulation did not mean that 18 U.S.C. § 1461 was unconstitutionally vague at the time of petitioners' convictions because it did not provide them with sufficient guidance as to the proper test of 'social value,' that formula having been rejected not for vagueness reasons but because it departed from Roth's obscenity definition and entailed a virtually impossible prosecutorial burden. Pp. 116 117.
5. The indictment was sufficiently definite. Pp. 117—119.
(a) The language of § 1461 was not 'too vague to support conviction for crime,' Roth v. United States, supra, 354 U.S., at 480, 77 S.Ct., at 1306. P. 117.
(b) The indictment gave petitioners adequate notice of the charges against them, since at the time petitioners were indicted the statutory term 'obscene,' a legal term of art and not a generic expression, had a definite legal meaning. Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240, distinguished. Pp. 117—119.
6. The District Court did not err in its instructions to the jury on scienter, including its instruction that '(petitioners') belief as to the obscenity or non-obscenity of the material is irrelevant,' it being constitutionally sufficient that the prosecution show that a defendant had knowledge of the contents of materials that he distributes, and that he knew the character and nature of the materials. Rosen v. United States, 161 U.S. 29, 16 S.Ct. 434, 40 L.Ed. 606, followed; Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205, distinguished. Pp. 119—124.
7. The Court of Appeals correctly concluded that there was substantial evidence to support the jury's verdict. P. 124.
8. The District Court did not abuse its discretion in excluding allegedly comparable materials (materials with second-class mailing privileges, or judicially found to have been nonobscene, or available on newsstands), since, inter alia, expert testimony had been allowed on relevant community standards; and similar materials or judicial determinations with respect thereto do not necessarily prove nonobscenity of the materials the accused is charged with circulating; and with respect to whether proffered evidence is cumulative, clearly relevant, or confusing, the trial court has considerable latitude. Pp. 125—127.
9. The District Court's instruction that in deciding whether the predominant appeal of the brochure was to a prurient interest in sex the jury could consider whether some portions appealed to a specifically defined deviant group as well as to the average person was not erroneous, since in measuring prurient appeal, the jury (which was instructed that it must find that the material as a whole appealed generally to a prurient interest in sex) may consider the material's prurient appeal to clearly defined deviant sexual groups. Mishkin v. New York, 383 U.S. 502, 508—509, 86 S.Ct. 958, 963—964, 16 L.Ed.2d 56. Pp. 127—130.
10. Since evidence of pandering can be relevant in determining obscenity, as long as the proper constitutional definition of obscenity is applied, Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31, it was not improper for the District Court to instruct the jury in connection with the Memoirs test that it could also consider whether the brochure had been pandered by looking to the manner of its distribution and editorial intent. Pp. 130—131.
11. The Court of Appeals did not err in refusing to reverse petitioners' convictions for the District Court's failure to comply with Fed.Rule Crim.Proc. 30 by denying petitioners' counsel's request to make additional objections to the instructions out of the presence of the jury, since this Court's independent examination of the record confirms the Court of Appeals' view that petitioners were not prejudiced thereby. Pp. 131—135.
12. Petitioners' argument that the District Court abused its discretion in refusing to grant a continuance until a new jury with a presumably greater ratio of young people could be drawn—it having been almost four years since the jury wheel had last been filled—is without merit, since there was no showing of a discriminatory exclusion of an identifiable group entitled to a group-based protection. Pp. 135—138.
13. The District Court's voir dire examination was sufficient to test the qualifications and competency of the prospective jurors and complied with Fed.Rule Crim.Proc. 24(a), and that court did not constitutionally err in not asking certain questions propounded by petitioners. Pp. 138—140.
481 F.2d 307, affirmed.
Stanley Fleishman, Hollywood, Cal., for petitioners Hamling and others.
Sam Rosenwein, Hollywood, Cal., for petitioners Kemp and others.
Allan A. Tuttle, Raleigh, N.C., for respondent.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
On March 5, 1971, a grand jury in the United States District Court for the Southern District of California indicted petitioners William L. Hamling, Earl Kemp, Shirley R. Wright, David L. Thomas, Reed Enterprises, Inc., and Library Service, Inc., on 21 counts of an indictment charging use of the mails to carry an obscene book, The Illustrated Presidential Report of the Commission on Obscenity and Pornography, and an obscene advertisement, which gave information as to where, how, and from whom and by what means the Illustrated Report might be obtained, and of conspiracy to commit the above offenses, in violation of 18 U.S.C. §§ 2, 371, and 1461.1 Prior to trial, petitioners moved to dismiss the indictment on the grounds that it failed to inform them of the charges, and that the grand jury had insufficient evidence before it to return an indictment and was improperly instructed on the law. Petitioners also challenged the petit jury panel and moved to strike the venire on the ground that there had been an unconstitutional exclusion of all persons under 25 years of age. The District Court denied all of these motions.
2
Following a jury trial, petitioners were convicted on 12 counts of mailing and conspiring to mail the obscene advertisement.2 On appeal, the United States Court of Appeals for the Ninth Circuit affirmed. 481 F.2d 307 (1973). The jury was unable to reach a verdict with regard to the counts of the indictment which charged the mailing of the allegedly obscene Illustrated Report.3 The advertisement found obscene is a single sheet brochure mailed to approximately 55,000 persons in various parts of the United States; one side of the brochure contains a collage of photographs from the Illustrated Report; the other side gives certain information and an order blank from which the Illustrated Report could be ordered.
3
The Court of Appeals accurately described the photographs in the brochure as follows:
4
'The folder opens to a full page splash of pictures portraying heterosexual and homosexual intercourse, sodomy and a variety of deviate sexual acts. Specifically, a group picture of nine persons, one male engaged in masturbation, a female masturbating two males, two couples engaged in intercourse in reverse fashion while one female participant engages in fellatio of a male; a second group picture of six persons, two males masturbating, two fellatrices practicing the act, each bearing a clear depiction of ejaculated seminal fluid on their faces; two persons with the female engaged in the act of fellatio and the male in female masturbation by hand; two separate pictures of males engaged in cunnilinction; a film strip of six frames depicting lesbian love scenes including a cunnilinguist in action and female masturbation with another's hand and a vibrator, and two frames, one depicting a woman mouthing the penis of a horse and a second poising the same for entrance into her vagina.' 481 F.2d at 316—317.4
5
The reverse side of the brochure contains a facsimile of the Illustrated Report's cover, and an order form for the Illustrated Report. It also contains the following language:
6
'THANKS A LOT, MR. PRESIDENT. A monumental work of research and investigation has now become a giant of a book. All the facts, all the statistics, presented in the best possible format . . . and . . . completely illustrated in black and white and full color. Every facet of the most controversial public report ever issued is covered in detail.
7
'The book is a MUST for the research shelves of every library, public or private, seriously concerned with full intellectual freedom and adult selection.
8
'Millions of dollars in public funds were expended to determine the PRECISE TRUTH about eroticism in the United States today, yet every possible attempt to suppress this information was made from the very highest levels.
9
'Even the President dismissed the facts, out of hand. The attempt to suppress this volume is an inexcusable insult directed at every adult in this country. Each individual MUST be allowed to make his own decision; the facts are inescapable. Many adults, MANY OF THEM, will do just that after reading this REPORT. In a truly free society, a book like this wouldn't even be necessary.'
10
The Court of Appeals indicated that the actual report of the Commission on Obscenity and Pornography is an official Government document printed by the United States Government Printing Office. The major difference between the Illustrated Report, charged to be obscene in the indictment, and the actual report is that the Illustrated Report contained illustrations, which the publishers of the Illustrated Report said were included "as examples of the type of subject matter discussed and the type of material shown to persons who were part of the research projects engaged in for the Commission as basis for their Report." 481 F.2d, at 315.
11
The facts adduced at trial showed that postal patrons in various parts of the country received the brochure advertising the Illustrated Report. The mailings these persons received consisted of an outer envelope, an inner return envelope addressed to Library Service, Inc., at a post office box in San Diego, California, and the brochure itself, which also identified Library Service, Inc., at the same address, as the party responsible for the mailing. The outer envelopes bore a postmark that indicated they were mailed from North Hollywood, California, on or about January 12, 1971, and that the postage was affixed to the envelopes by a Pitney-Bowes meter number.
12
The mailing of these brochures was accomplished by petitioners through the use of other businesses. Approximately 55,000—58,000 of these brochures were placed in envelopes, and postage was affixed to them by one Richard and one Venita Harte, who operate the Academy Addressing and Mailing Service. The brochures and the Pitney-Bowes meter number, with which they affixed the postage, were supplied to them by one Bernard Lieberman of Regent House, Inc., of North Hollywood, California, who, on January 11, 1971, had paid the United States Postal Service to set $3,300 worth of postage on the meter number. Regent House was billed $541.15 by the Hartes for their services. Regent House in turn charged its services and costs for the postage and the Hartes' mailing service to Reed Enterprises, Inc., which paid the bill on January 19, 1971, with a check signed by petitioner Hamling.
13
Those individuals responding to the brochure would be sent copies of the Illustrated Report, which would be mailed with postage affixed by a second Pitney-Bowes meter number which was installed at Library Service, Inc., at the direction of an employee of Pitney-Bowes. The rental agreement for this meter was signed for Library Service by petitioner David Thomas, whom that employee identified as the person with whom he had dealt on the matter.
14
The evidence indicated that the individual petitioners were officers in the corporate petitioners, and also indicated that they were involved with selling the Illustrated Report, which entailed mailing out the advertising brochure. Petitioner Hamling, as president of Reed Enterprises, Inc., signed the check on the corporation's behalf in payment to Regent House for the mailing of the advertisement. Petitioner Kemp was the editor of the Illustrated Report, and was vice president of Library Service, Inc., and Greenleaf Classics, Inc., which is the publisher of the Illustrated Report.5 He signed the application on behalf of Library Service, Inc., for the post office box in San Diego, which was the same post office box on the return envelope sent with the advertisement and on the advertisement itself. Petitioner Thomas signed the rental agreement for the postage meter which was used in affixing postage for sending copies of the Illustrated Report, and which Thomas directed to be installed at Library Service.
15
Petitioner Wright was the secretary of Reed Enterprises, Inc., and Greenleaf Classics, Inc. Wright assisted the postal superintendent in obtaining Kemp's signature on the application for the post office box in San Diego. Wright also received a memorandum from London Press, Inc., the printer of the Illustrated Report, addressed to her as representative of Reed Enterprises, Inc., confirming the shipment of 28,537 copies of the Illustrated Report. Various other corporate documents tended to show the individual petitioners' involvement with the corporate petitioners. Both the Government and the petitioners introduced testimony from various expert witnesses concerning the obscenity vel non of both the Illustrated Report and the brochure.
16
In affirming the convictions of these petitioners for the distribution of the obscene brochure, the Court of Appeals rejected various contentions made by the petitioners. The Court of Appeals also rejected petitioners' petition for rehearing and suggestion for rehearing en banc. We granted certiorari, 414 U.S. 1143, 94 S.Ct. 893, 39 L.Ed.2d 97 (1974), and now affirm the judgment of the Court of Appeals.
17
* These petitioners were convicted by a jury on December 23, 1971. App. 9. The Court of Appeals affirmed their convictions in an opinion filed on June 7, 1973. The Court of Appeals originally denied rehearing and suggestion for rehearing en banc on July 9, 1973. That order was withdrawn by the Court of Appeals to be reconsidered in light of this Court's decisions, announced June 21, 1973, in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, and related cases,6 and was submitted to the en banc court, by order dated August 20, 1973.7 On August 22, 1973, the Court of Appeals entered an order denying the petition for rehearing and the suggestion for rehearing en banc.
18
The principal question presented by this case is what rules of law shall govern obscenity convictions that occurred prior to the date on which this Court's decision in Miller v. California, supra, and its companion cases were handed down, but which had not at that point become final. Petitioners mount a series of challenges to their convictions based upon the so-called Memoirs test for the proscription of obscenity. (Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966).) They also attack the judgments as failing to comply with the standards enunciated in the Miller cases, and conclude by challenging other procedural and evidentiary rulings of the District Court.
19
Questions as to the constitutionality of 18 U.S.C. § 1461,8 the primary statute under which petitioners were convicted, were not strangers to this Court prior to the Miller decision. In Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), the Court held that this statute did not offend the free speech and free press guarantees of the First Amendment, and that it did not deny the due process guaranteed by the Fifth Amendment because it was 'too vague to support conviction for crime.' Id., at 480, 77 S.Ct., at 1306. That holding was reaffirmed in United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971). See also Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639 (1962); Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966). Prior to Miller, therefore, this Court had held that 18 U.S.C. § 1461, 'applied according to the proper standard for judging obscenity, do(es) not offend constitutional safeguards against convictions based upon protected material, or fail to give men in acting adequate notice of what is prohibited.' Roth v. United States, supra, 354 U.S., at 492, 77 S.Ct., at 1313.
20
These petitioners were tried and convicted under the definition of obscenity originally announced by the Court in Roth v. United States, supra, and significantly refined by the plurality opinion in Memoirs v. Massachusetts, supra. The Memoirs plurality held that under the Roth definition
21
'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 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., 383 U.S., at 418, 86 S.Ct., at 977.
22
Petitioners make no contention that the instructions given by the District Court in this case were inconsistent with the test of the Memoirs plurality. They argue instead that the obscenity vel non of the brochure has not been established under the Memoirs test The Court of Appeals ruled against petitioners on this score, concluding that the jury's finding that the brochure was obscene under the Memoirs plurality test was correct. Petitioners argue at length that their expert witnesses established that the brochure did not appeal to a prurient interest in sex, that it was not patently offensive, and that it had social value. Examining the record below, we find that the jury could constitutionally find the brochure obscene under the Memoirs test. Expert testimony is not necessary to enable the jury to judge the obscenity of material which, as here, has been placed into evidence. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 56, 93 S.Ct. 2628, 2634, 37 L.Ed.2d 446 (1973); Kaplan v. California, 413 U.S. 115, 120 121, 93 S.Ct. 2680, 2684—2685, 37 L.Ed.2d 492 (1973); Ginzburg v. United States, supra, 383 U.S., at 465, 86 S.Ct., at 944. In this case, both the Government and the petitioners introduced testimony through expert witnesses concerning the alleged obscenity of the brochure. The jury was not bound to accept the opinion of any expert in weighing the evidence of obscenity, and we conclude that its determination that the brochure was obscene was supported by the evidence and consistent with the Memoirs formulation of obscenity.
23
Petitioners nevertheless contend that since the jury was unable to reach a verdict on the counts charging the obscenity vel non of the Illustrated Report itself, that report must be presumed to be nonobscene, and therefore protected by the First Amendment. From this premise they contend that since the brochure fairly advertised the Illustrated Report, the brochure must also be nonobscene. The Court of Appeals rejected this contention, noting that '(t)he premise is false. The jury made no finding on the charged obscenity of the Report.' 481 F.2d, at 315. The jury in this case did not acquit the petitioners of the charges relating to the distribution of the allegedly obscene Illustrated Report. It instead was unable to reach a verdict on the counts charging the distribution of the Illustrated Report, and accordingly, the District Court declared a mistrial as to those counts. App. 9—10. It has, of course, long been the rule that consistency in verdicts or judgments of conviction is not required. United States v. Dotterweich, 320 U.S. 277, 279, 64 S.Ct. 134, 135, 88 L.Ed. 48 (1943); Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356 (1932). '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 (1957), ((I)t 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, 165 U.S. 486, 499—500, 17 S.Ct. 375, 379—380, 41 L.Ed. 799." Miller v. California, 413 U.S., at 26 n. 9, 93 S.Ct., at 2616. The brochure in this case stands by itself, and must accordingly be judged. It is not, as petitioners suggest, inseparable from the Illustrated Report, and it cannot be seriously contended that an obscene advertisement could not be prepared for some type of nonobscene material. If consistency in jury verdicts as to the obscenity vel non of identical materials is not constitutionally required, Miller v. California, supra, the same is true a fortiori of verdicts as to separate materials, regardless of their similarities.
24
Our Miller decisions dealing with the constitutional aspects of obscenity prosecutions were announced after the petitioners had been found guilty by a jury, and their judgment of conviction affirmed by a panel of the Court of Appeals. Our prior decisions establish a general rule that a change in the law occurring after a relevant event in a case will be given effect while the case is on direct review. United States v. Schooner Peggy, 1 Cranch 103, 2 L.Ed. 49 (1801); Linkletter v. Walker, 381 U.S. 618, 627, 85 S.Ct. 1731, 1736, 14 L.Ed.2d 601 (1965); Bradley v. School Board of Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974). Since the judgment in this case has not become final, we examine the judgment against petitioners in the light of the principles laid down in the Miller cases. While the language of 18 U.S.C. § 1461 has remained the same throughout this litigation, the statute defines an offense in terms of 'obscenity,' and this Court's decisions, at least since Roth v. United States, supra, indicate that there are constitutional limitations which must be borne in mind in defining that statutory term. Thus any constitutional principle enunciated in Miller which would serve to benefit petitioners must be applied in their case.
25
Recognizing that the Memoirs plurality test had represented a sharp break with the test of obscenity as announced in Roth v. United States, supra, our decision in Miller v. California reformulated the test for the determination of obscenity vel non:
26
'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.' 413 U.S., at 24, 93 S.Ct., at 2615.
27
The Court of Appeals held on rehearing that the Miller cases generally prescribed a more relaxed standard of review under the Federal Constitution for obscenity convictions, and that therefore petitioners could derive no benefit from the principles enunciated in those cases. See n. 7, supra. Petitioners concede that this observation may be true in many particulars, but that in at least two it is not. They contend that the Miller treatment of the concept of 'national standards' necessarily invalidates the District Court's charge to the jury in their case relating to the standard by which the question of obscenity was to be judged, and they further contend that the general language of 18 U.S.C. § 1461 is, in the light of the holding in the Miller cases, unconstitutionally vague.
A.
28
The trial court instructed the jury that it was to judge the obscenity vel non of the brochure by reference to 'what is reasonably accepted according to the contemporary standards of the community as a whole . . .. Contemporary community standards means the standards generally held throughout this country concerning sex and matters pertaining to sex. This phrase means, as it has been aptly stated, the average conscience of the time, and the present critical point in the compromise between candor and shame, at which the community may have arrived here and now.' App. 241. Petitioners describe this as an instruction embodying the principle of 'national standards' which, although it may have been proper under the law as it existed when they were tried, cannot be sustained under the law as laid down in Miller, where the Court stated:
29
'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.' 413 U.S., at 31 32, 93 S.Ct., at 2619.
30
Paradoxically, however, petitioners also contend that in order to avoid serious constitutional questions the standards in federal obscenity prosecutions must be national ones, relying on Manual Enterprises, Inc. v. Day, 370 U.S., at 488, 82 S.Ct., at 1437 (opinion of Harlan, J.), and United States v. Palladino, 490 F.2d 499 (CA1 1974). Petitioners assert that our decisions in the two federal obscenity cases decided with Miller9 indicate that this Court has not definitively decided whether the Constitution requires the use of nationwide standards in federal obscenity prosecutions.
31
We think that both of these contentions evidence a misunderstanding of our Miller holdings. Miller rejected the view that the First and Fourteenth Amendments require that the proscription of obscenity be based on uniform nationwide standards of what is obscene, describing such standards as 'hypothetical and unascertainable,' 413 U.S., at 31, 93 S.Ct., at 2619. But in so doing the Court did not require as a constitutional matter the substitution of some smaller geographical area into the same sort of formula; the test was stated in terms of the understanding of 'the average person, applying contemporary community standards.' Id., at 24, 93 S.Ct., at 2615. When this approach is coupled with the reaffirmation in Paris Adult Theatre I v. Slaton, 413 U.S., at 56, 93 S.Ct., at 2634, of the rule that the prosecution need not as a matter of constitutional law produce 'expert' witnesses to testify as to the obscenity of the materials, the import of the quoted language from Miller becomes clear. A juror is entitled to draw on his own knowledge of the views of the average person in the community or vicinage from which he comes for making the required determination, just as he is entitled to draw on his knowledge of the propensities of a 'reasonable' person in other areas of the law. Stone v. New York, C. & St. L.R. Co., 344 U.S., 407, 409, 73 S.Ct. 358, 359, 97 L.Ed. 441 (1953); Schulz v. Pennsylvania R. Co., 350 U.S. 523, 525—526, 76 S.Ct. 608, 609—610, 100 L.Ed. 668 (1956). Our holding in Miller that California could constitutionally proscribe obscenity in terms of a 'statewide' standard did not mean that any such precise geographic area is required as a matter of constitutional law.
32
Our analysis in Miller of the difficulty in formulating uniform national standards of obscenity, and our emphasis on the ability of the juror to ascertain the sense of the 'average person, applying contemporary community standards' without the benefit of expert evidence, clearly indicates that 18 U.S.C. § 1461 is not to be interpreted as requiring proof of the uniform national standards which were criticized in Miller. In United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973), a federal obscenity case decided with Miller, we said:
33
'We have today arrived at standards for testing the constitutionality of state legislation regulating obscenity. See Miller v. California, 413 U.S., at 23—25, 93 S.Ct., at 2615—2616. These standards are applicable to federal legislation.' Id., at 129—130, 93 S.Ct., at 2670.
34
Included in the pages referred to in Miller is the standard of 'the average person, applying contemporary community standards.' In view of our holding in 12 200-ft. Reels of Film, we hold that 18 U.S.C. § 1461 incorporates this test in defining obscenity.
35
The result of the Miller cases, therefore, as a matter of constitutional law and federal statutory construction, is to permit a juror sitting in obscenity cases to draw on knowledge of the community or vicinage from which he comes in deciding what conclusion 'the average person, applying contemporary community standards' would reach in a given case. Since this case was tried in the Southern District of California, and presumably jurors from throughout that judicial district were available to serve on the panel which tried petitioners, it would be the standards of that 'community' upon which the jurors would draw. But this is not to say that a district court would not be at liberty to admit evidence of standards existing in some place outside of this particular district, if it felt such evidence would assist the jurors in the resolution of the issues which they were to decide.
36
Our Brother BRENNAN suggests in dissent that in holding that a federal obscenity case may be tried on local community standards, we do violence both to congressional prerogative and to the Constitution. Both of these arguments are foreclosed by our decision last Term in United States v. 12 200-ft. Reels of Film, supra, that the Miller standards, including the 'contemporary community standards' formulation, applied to federal legislation. The fact that distributors of allegedly obscene materials may be subjected to varying community standards in the various federal judicial districts into which they transmit the materials does not render a federal statute unconstitutional because of the failure of application of uniform national standards of obscenity. Those same distributors may be subjected to such varying degrees of criminal liability in prosecutions by the States for violations of state obscenity statutes; we see no constitutional impediment to a similar rule for federal prosecutions. In Miller v. California, 413 U.S., at 32, 93 S.Ct., at 2619, we cited with approval Mr. Chief Justice Warren's statement:
37
'(W)hen 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,' and perhaps there should be none. At all events, this Court has not been able to enunciate one, and it would be unreasonable to expect local courts to divine one. It is said that such a 'community' approach may well result in material being proscribed as obscene in one community but not in another, and, in all probability, that is true. But communities throughout the Nation are in fact diverse, and it must be remembered that, in cases such as this one, the Court is confronted with the task of reconciling conflicting rights of the diverse communities within our society and of individuals.' Jacobellis v. Ohio, 378 U.S. 184, 200—201, 84 S.Ct. 1676, 1685, 12 L.Ed.2d 793 (1964) (dissenting opinion).
38
Judging the instruction given by the District Court in this case by these principles, there is no doubt that its occasional references to the community standards of the 'nation as a whole' delineated a wider geographical area than would be warranted by Miller, 12 200-ft. Reels of Film, and our construction of § 1461 herein, supra, at 105. Whether petitioners were materially prejudiced by those references is a different question. Certainly the giving of such an instruction does not render their conviction void as a matter of constitutional law. This Court has emphasized on more than one occasion that a principal concern in requiring that a judgment be made on the basis of 'contemporary community standards' is to assure that the material is judged neither on the basis of each juror's personal opinion, nor by its effect on a particularly sensitive or insensitive person or group. Miller v. California, supra, 413 U.S., at 33, 93 S.Ct., at 2620; Mishkin v. New York, 383 U.S. 502, 508—509, 86 S.Ct. 958, 963—964, 16 L.Ed.2d 56 (1966); Roth v. United States, 354 U.S., at 489, 77 S.Ct., at 1311. The District Court's instruction in this case, including its reference to the standards of the 'nation as a whole,' undoubtedly accomplished this purpose.
39
We have frequently held that jury instructions are to be judged as a whole, rather than by picking isolated phrases from them. Boyd v. United States, 271 U.S. 104, 107, 46 S.Ct. 442, 443, 70 L.Ed. 857 (1926). In the unusual posture of this case, in which petitioners agree that the challenged instruction was proper at the time it was given by the District Court, but now seek to claim the benefit of a change in the law which casts doubt on the correctness of portions of it, we hold that reversal is required only where there is a probability that the excision of the references to the 'nation as a whole' in the instruction dealing with community standards would have materially affected the deliberations of the jury. Cf. Namet v. United States, 373 U.S. 179, 190—191, 83 S.Ct. 1151, 1156—1157, 10 L.Ed.2d 278 (1963); Lopez v. United States, 373 U.S. 427, 436, 83 S.Ct. 1381, 1386, 10 L.Ed.2d 462 (1963). Our examination of the record convinces us that such a probability does not exist in this case.
40
Our Brother BRENNAN takes us to task for reaching this conclusion, insisting that the District Court's instructions and its exclusion of the testimony of a witness, Miss Carlsen, who had assertedly conducted a survey of standards in the San Diego area require that petitioners be accorded a new trial. As we have noted, infra, at 124—125, the District Court has wide discretion in its determination to admit and exclude evidence, and this is particularly true in the case of expert testimony. Stillwell & Bierce Mfg. Co. v. Phelps, 130 U.S. 520, 527, 9 S.Ct. 601, 603, 32 L.Ed. 1035 (1889); Barnes v. Smith, 305 F.2d 226, 232 (CA10 1962); 2 J. Wigmore, Evidence § 561 (3d ed. 1940).10 But even assuming that the District Court may have erred in excluding the witness' testimony in light of the Miller cases, we think arguments made by petitioners' counsel urging the admission of the survey re-emphasize the confusing and often gossamer distinctions between 'national' standards and other types of standards. Petitioners' counsel, in urging the District Court to admit the survey, stated:
41
'We have already had experts who have testified and expect to bring in others who have testified both for the prosecution and the defense that the material that they found was similar in all cities. . . .' Tr. 3931.
42
'This witness can testify about experiences she had in one particular city. Whether this is or not a typical city is for the jury to decide.' Id., at 3932.
43
'Now this supports the national survey. It is not something that stands alone. The findings here are consistent with the national survey and as part of the overall picture, taking into account, of course, that this is something that has taken place after the national survey, which was about two years ago, that Dr. Abelson performed.' Id., at 3934—3935.
44
The District Court permitted Dr. Wilson, one of the four expert witnesses who testified on behalf of petitioners, to testify as to materials he found available in San Diego, as a result of having spent several days there. Id., at 3575. He was then asked by petitioners' counsel whether this material was 'similar to or different than' the material found in other cities where he had also visited adult bookstores. The witness responded that he thought 'essentially the same kinds of material are found throughout the United States.' Id., at 3577. These statements, in colloquies between counsel and Dr. Wilson, only serve to confirm our conclusion that while there may have been an error in the District Court's references to the 'community standards of the nation as a whole' in its instructions, and in its stated reasons for excluding the testimony of Miss Carlsen, these errors do not require reversal under the standard previously enunciated.11
B
45
Petitioners next argue that prior to our decision in Miller, 18 U.S.C. § 1461 did not contain in its language, nor had it been construed to apply to, the specific types of sexual conduct referred to in Miller, and therefore the section was unconstitutionally vague as applied to them in the prosecution of these cases. Such an argument, however, not only neglects this Court's decisions prior to Miller rejecting vagueness challenges to the federal statute, but also fundamentally misconceives the thrust of our decision in the Miller cases.
46
In Roth v. United States, 354 U.S., at 491, 77 S.Ct., at 1312, we upheld the constitutionality of 18 U.S.C. § 1461 against a contention that it did 'not provide reasonably ascertainable standards of guilt and therefore violate(s) the constitutional requirements of due process.' In noting that the federal obscenity statute made punishable the mailing of material that is 'obscene, lewd, lascivious, or filthy . . . (and of) other publication(s) of an indecent character,' the Court stated in Roth:
47
'Many decisions have recognized that these terms of obscenity statutes are not precise. 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 fairly to 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.' 354 U.S., at 491—492, 77 S.Ct., at 1312 (footnote omitted).
48
Other decisions dealing with the pre-Miller constitutionality or interpretation of 18 U.S.C. § 1461 in other contexts have not retreated from the language of Roth. See, e.g., United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971); Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966); Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639 (1962). And as made clear by the opinion of Mr. Justice Harlan in Manual Enterprises, the language of 18 U.S.C. § 1461 had been, prior to the date of our decision in Miller, authoritatively construed in a manner consistent with Miller:
49
'The words of § 1461, 'obscene, lewd, lascivious, indecent, filthy or vile,' connote something that is portrayed in a manner so offensive as to make it unacceptable under current community mores. While in common usage the words have different shades of meaning, the statute since its inception has always been taken as aimed at obnoxiously debasing portrayals of sex. Although the statute condemns such material irrespective of the effect it may have upon those into whose hands it falls, the early case of United States v. Bennett, 24 Fed.Cas. p. 1093, No. 14,571, put a limiting gloss upon the statutory language: the statute reaches only indecent material which, as now expressed in Roth v. United States, supra, at 489, 77 S.Ct. at 1311, 'taken as a whole appeals to prurient interest." 370 U.S., at 482—484, 82 S.Ct., at 1434 (footnotes omitted) (emphasis in original).
50
At no point does Miller or any of the other obscenity decisions decided last Term intimate that the constitutionality of pre-Miller convictions under statutes such as 18 U.S.C. § 1461 was to be cast in doubt. Indeed, the contrary is readily apparent from the opinions in those cases. We made clear in Miller, 413 U.S., at 24 n. 6, 93 S.Ct., at 2615, that our decision was not intended to hold all state statutes inadequate, and we clearly recognized that existing statutes 'as construed heretofore or hereafter, may well be adequate.' That recognition is emphasized in our opinion in United States v. 12 200—ft. Reels of Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973). That case had come to this Court on appeal from the District Court's dismissal of the Government's forfeiture action under 19 U.S.C. § 1305(a), which statute the District Court had found unconstitutional. In vacating the District Court's constitutional decision and remanding the case to the District Court for a determination of the obscenity vel non of the materials there involved, we stated:
51
'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, (413 U.S.,) at 140 n. 1, 93 S.Ct., at 2676, we are prepared to construe such terms as limiting regulated material to patently offensive representations or descriptions of that specific 'hard core' sexual conduct given as examples in Miller v. California, (413 U.S.,) at 25, 93 S.Ct., at 2615, 2616. 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.' 413 U.S., at 130 n. 7, 93 S.Ct., at 2670.
52
Miller undertook to set forth examples of the types of material which a statute might proscribe as portraying sexual conduct in a patently offensive way, 413 U.S., at 25—26, 93 S.Ct., at 2615—2616, and went on to say that no one could be prosecuted 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.' Id., at 27, 93 S.Ct., at 2616. As noted above, we indicated in United States v. 12 200-ft. Reels of Film, supra, 413 U.S., at 130 n. 7, 93 S.Ct., at 2670, that we were prepared to construe the generic terms in 18 U.S.C. § 1462 to be limited to the sort of 'patently offensive representations or descriptions of that specific 'hard core' sexual conduct given as examples in Miller v. California.' We now so construe the companion provision in 18 U.S.C. § 1461, the substantive statute under which this prosecution was brought. As so construed, we do not believe that petitioners' attack on the statute as unconstitutionally vague can be sustained.
53
Miller, in describing the type of material which might be constitutionally proscribed, 413 U.S., at 25, 93 S.Ct., at 2615, was speaking in terms of substantive constitutional law of the First and Fourteenth Amendments. See Jenkins v. Georgia, 418 U.S. 153, at 160—161, 94 S.Ct. 2750, at 2755, 41 L.Ed.2d 642. While the particular descriptions there contained were not intended to be exhaustive, they clearly indicate that there is a limit beyond which neither legislative draftsmen nor juries may go in concluding that particular material is 'patently offensive' within the meaning of the obscenity test set forth in the Miller cases. And while the Court in Miller did refer to 'specific prerequisites' which 'will provide fair notice to a dealer in such materials,' 413 U.S., at 27, 93 S.Ct., at 2616, the Court immediately thereafter quoted the language of the Court in Roth v. United States, 354 U.S., at 491—492, 77 S.Ct., at 1312—1313, concluding with these words:
54
"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. . . ." 413 U.S., at 28 n. 10, 93 S.Ct., at 2617.
55
The Miller cases, important as they were in enunciating a constitutional test for obscenity to which a majority of the Court subscribed for the first time in a number of years, were intended neither as legislative drafting handbooks nor as manuals of jury instructions. Title 18 U.S.C. § 1461 had been held invulnerable to a challenge on the ground of unconstitutional vagueness in Roth; the language of Roth was repeated in Miller, along with a description of the types of material which could constitutionally be proscribed and the adjuration that such statutory proscriptions be made explicit either by their own language or by judicial construction; and United States v. 12 200-ft. Reels of Film, supra, made clear our willingness to construe federal statutes dealing with obscenity to be limited to material such as that described in Miller. It is plain from the Court of Appeals' description of the brochure involved here that it is a form of hard-core pornography well within the types of permissibly proscribed depictions described in Miller, and which we now hold § 1461 to cover. Whatever complaint the distributor of material which presented a more difficult question of obscenity vel non might have as to the lack of a previous limiting construction of 18 U.S.C. § 1461, these petitioners have none. See Dennis v. United States, 341 U.S. 494, 511—515, 71 S.Ct. 857, 95 L.Ed. 1137 (1951) (opinion of Vinson, C.J.).
56
Nor do we find merit in petitioners' contention that cases such as Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964), require reversal of their convictions. The Court in Bouie held that since the crime for which the petitioners there stood convicted was 'not enumerated in the statute' at the time of their conduct, their conviction could not be sustained. Id., at 363, 84 S.Ct. at 1707. The Court noted that 'a deprivation of the right of fair warning can result not only from vague statutory language but also from an unforeseeable and retroactive judicial expansion of narrow and precise statutory language.' Id., at 352, 84 S.Ct., at 1702. But the enumeration of specific categories of material in Miller which might be found obscene did not purport to make criminal, for the purpose of 18 U.S.C. § 1461, conduct which had not previously been thought criminal. That requirement instead added a 'clarifying gloss' to the prior construction and therefore made the meaning of the federal statute involved here 'more definite' in its application to federal obscenity prosecutions. Bouie v. City of Columbia, supra, at 353, 84 S.Ct., at 1702. Judged by both the judicial construction of § 1461 prior to Miller, and by the construction of that section which we adopt today in the light of Miller, petitioners' claims of vagueness and lack of fair notice as to the proscription of the material which they were distributing must fail.
C
57
Petitioners' final Miller-based contention is that our rejection of the third part of the Memoirs test and our revision of that test in Miller indicate that 18 U.S.C. § 1461 was at the time of their convictions unconstitutionally vague for the additional reason that it provided insufficient guidance to them as to the proper test of 'social value.' But our opinion in Miller plainly indicates that we rejected the Memoirs 'social value' formulation, not because it was so vague as to deprive criminal defendants of adequate notice, but instead because it represented a departure from the definition of obscenity in Roth, and because in calling on the prosecution to 'prove a negative,' it imposed a '(prosecutorial) burden virtually impossible to discharge' and not constitutionally required. 413 U.S., at 22, 93 S.Ct., at 2613. Since Miller permits the imposition of a lesser burden on the prosecution in this phase of the proof of obscenity than did Memoirs, and since the jury convicted these petitioners on the basis of an instruction concededly based on the Memoirs test, petitioners derive no benefit from the revision of that test in Miller.
II
58
Petitioners attack the sufficiency of the indictment under which they were charged for two reasons: first, that it charged them only in the statutory language of 18 U.S.C. § 1461, which they contend was unconstitutionally vague as applied to them; and, second, that the indictment failed to give them adequate notice of the charges against them. As noted above, however, at the time of petitioners' convictions, Roth v. United States had held that the language of § 1461 was not 'too vague to support conviction for crime.' 354 U.S., at 480, 77 S.Ct., at 1306. See United States v. Reidel, 402 U.S., at 354, 91 S.Ct., at 1411.
59
Our prior cases indicate that an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861 (1932); United States v. Debrow, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92 (1953). It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as 'those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.' United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135 (1882). 'Undoubtedly the language of the statute may be used in the general description of an offence, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged.' United States v. Hess, 124 U.S. 483, 487, 8 S.Ct. 571, 573, 31 L.Ed. 516 (1888).
60
Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), relied upon by petitioners, does not require a finding that the indictment here is insufficient. In Russell, the indictment recited the proscription of 2 U.S.C. § 192, and charged that the defendants had refused to answer questions that 'were pertinent to the question then under inquiry' by a committee of Congress. In holding that the indictment was insufficient because it did not state the subject which was under inquiry, this Court stated:
61
'(T)he very core of criminality under 2 U.S.C. § 192 is pertinency to the subject under inquiry of the questions which the defendant refused to answer. What the subject actually was, therefore, is central to every prosecution under the statute. Where guilt depends so crucially upon such a specific identification of fact, our cases have uniformly held that an indictment must do more than simply repeat the language of the criminal statute.' 369 U.S., at 764, 82 S.Ct., at 1047 (emphasis added).
62
The definition of obscenity, however, is not a question of fact, but one of law; the word 'obscene,' as used in 18 U.S.C. § 1461, is not merely a generic or descriptive term, but a legal term of art. See Roth v. United States 354 U.S., at 487—488, 77 S.Ct., at 1310—1311; Manual Enterprises, Inc. v. Day, 370 U.S., at 482—487, 82 S.Ct., at 1434—1437 (opinion of Harlan, J.); United States v. Thevis, 484 F.2d 1149, 1152 (CA5 1973), cert. pending, No. 73—1075; United States v. Luros, 243 F.Supp. 160, 167 (N.D.Iowa), cert. denied, 382 U.S. 956, 86 S.Ct. 433, 15 L.Ed.2d 361 (1965). The legal definition of obscenity does not change with each indictment; it is a term sufficiently definite in legal meaning to give a defendant notice of the charge against him. Roth v. United States, supra, 354 U.S. at 491—492, 77 S.Ct., at 1312—1313; Manual Enterprises, Inc. v. Day, supra, 370 U.S. at 482—487, 82 S.Ct., at 1434—1437 (opinion of Harlan, J.). Since the various component parts of the constitutional definition of obscenity need not be alleged in the indictment in order to establish its sufficiency, the indictment in this case was sufficient to adequately inform petitioners of the charges against them.12
63
Petitioners also contend that in order for them to be convicted under 18 U.S.C. § 1461 for the crime of mailing obscene materials, the Government must prove that they knew the materials mailed were obscene. That statute provides in pertinent part that '(w)hoever knowingly uses the mails for the mailing . . . of anything declared by this section . . . to be nonmailable . . .' is guilty of the proscribed offense. Consistent with the statute, the District Court instructed the jury, inter alia, that in order to prove specific intent on the part of these petitioners, the Government had to demonstrate that petitioners 'knew the envelopes and packages containing the subject materials were mailed or placed . . . in Interstate Commerce, and . . . that they had knowledge of the character of the materials.' App. 236. The District Court further instructed that the '(petitioners') belief as to the obscenity or non-obscenity of the material is irrelevant.' Ibid.
64
Petitioners contend that this instruction was improper and that proof of scienter in obscenity prosecutions requires, 'at the very least, proof both of knowledge of the contents of the material and awareness of the obscene character of the material.' Brief for Petitioner Kemp 31—32. In support of this contention, petitioners urge, as they must, that we overrule our prior decision in Rosen v. United States, 161 U.S. 29, 16 S.Ct. 434, 40 L.Ed. 606 (1896). We decline that invitation, and hold that the District Court in this case properly instructed the jury on the question of scienter.
65
In Rosen v. United States, supra, this Court was faced with the question of whether, under a forerunner statute to the present 18 U.S.C. § 1461, see Rev.Stat. § 3893, 19 Stat. 90, c. 186, a charge of mailing obscene material must be supported by evidence that a defendant 'knew or believed that such (material) could be properly or justly characterized as obscene . . ..' 161 U.S. at 41, 16 S.Ct., at 438. The Court rejected this contention, stating:
66
'The statute is not to be so interpreted. The inquiry under the statute is whether the paper charged to have been obscene, lewd, and lascivious was in fact of that character, and if it was of that character and was deposited in the mail by one who knew or had notice at the time of its contents, the offence is complete, although the defendant himself did not regard the paper as one that the statute forbade to be carried in the mails. Congress did not intend that the question as to the character of the paper should depend upon the opinion or belief of the person who, with knowledge or notice of its contents, assumed the responsibility of putting it in the mails of the United States. The evils that Congress sought to remedy would continue and increase in volume if the belief of the accused as to what was obscene, lewd, and lascivious was recognized as the test for determining whether the statute has been violated.' Id., at 41—42, 16 S.Ct., at 438.
67
Our subsequent cases have not retreated from this general rule, as a matter of either statutory or constitutional interpretation, nor have they purported to hold that the prosecution must prove a defendant's knowledge of the legal status of the materials he distributes.
68
In Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959), this Court was faced with a challenge to the constitutionality of a Los Angeles ordinance which had been construed by the state courts as making the proprietor of a bookstore absolutely liable criminally for the mere possession in his store of a book later judicially determined to be obscene, even though he had no knowledge of the contents of the book. The Court held that the ordinance could not constitutionally eliminate altogether a scienter requirement, and that, in order to be constitutionally applied to a book distributor, it must be shown that he had 'knowledge of the contents of the book.' Id., at 153, 80 S.Ct., at 218. The Court further noted that '(w)e need not and most definitely do not pass today on what sort of mental element is requisite to a constitutionally permissible prosecution of a bookseller for carrying an obscene book in stock.' Id., at 154, 80 S.Ct., at 219.
69
Smith does not support petitioners' claim in this case, since it dealt with an ordinance which totally dispensed with any proof of scienter on the part of the distributor of obscene material. Nor did the Court's decision in Manual Enterprises, Inc. v. Day, supra, also relied upon by petitioners, suggest otherwise. There Mr. Justice Harlan's opinion, recognizing that scienter was required for a criminal prosecution under 18 U.S.C. § 1461, rejected the Government's contention that such a requirement was unnecessary in an administrative determination by the Post Office Department that certain materials were nonmailable under that section. That opinion concluded that the obscene advertising proscription of the federal statute was not applicable in such an administrative determination unless the publisher of the materials knew that at least some of his advertisers were offering to sell obscene material. Such proof was deemed lacking and therefore the publishers could not be administratively prohibited from mailing the publications.13
70
Significantly, a substantially similar claim to the instant one was rejected by this Court in Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966). In examining a New York statute, the Court there noted that the New York Court of Appeals had 'authoritatively interpreted' the statutory provision to require the 'vital element of scienter' and that it had defined the required mental element as follows:
71
'A reading of the (New York) statute . . . as a whole clearly indicates that only those who are in some manner aware of the character of the material they attempt to distribute should be punished. It is not innocent but calculated purveyance of filth which is exorcised . . .,' Id., at 510, 86 S.Ct., at 964 (emphasis in original), quoting from People v. Finkelstein, 9 N.Y.2d 342, 344—345, 214 N.Y.S.2d 363, 364, 174 N.E.2d 470, 471 (1961).
72
The Court emphasized that this construction of the New York statute 'foreclosed' the defendant's challenge to the statute based on Smith v. California, supra, and stated:
73
'The Constitution requires proof of scienter to avoid the hazard of self-censorship of constitutionally protected material and to compensate for the ambiguities inherent in the definition of obscenity. The New York definition of the scienter required by (the New York statute) amply serves those ends, and therefore fully meets the demands of the Constitution. Cf. Roth v. United States, 354 U.S., at 495 496, 77 S.Ct., at 1314—1315 (Warren, C.J., concurring).' 383 U.S., at 511, 86 S.Ct., at 965.
74
The Mishkin holding was reaffirmed in Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). There the Court was again faced with the sufficiency of the scienter requirement of another New York statute, which proscribed the 'knowing' distribution of obscene materials to minors. 'Knowingly' was defined in the statute as 'knowledge' of, or 'reason to know' of, the character and content of the material. Citing Mishkin, and the New York Court of Appeals' construction of the other similar statutory language, the Court rejected the challenge to the scienter provision.
75
We think the 'knowingly' language of 18 U.S.C. § 1461, kand the instructions given by the District Court in this case satisfied the constitutional requirements of scienter. It is constitutionally sufficient that the prosecution show that a defendant had knowledge of the contents of the materials he distributed, and that he knew the character and nature of the materials. To require proof of a defendant's knowledge of the legal status of the materials would permit the defendant to avoid prosecution by simply claiming that he had not brushed up on the law. Such a formulation of the scienter requirement is required neither by the language of 18 U.S.C. § 1461 nor by the Constitution.
76
'Whenever the law draws a line there will be cases very near each other on opposite sides. The precise course of the line may be uncertain, but no one can come near it without knowing that he does so, if he thinks, and if he does so it is familiar to the criminal law to make him take the risk.' United States v. Wurzbach, 280 U.S. 396, 399, 50 S.Ct. 167, 169, 74 L.Ed. 508 (1930).
77
Petitioners also make a broad attack on the sufficiency of the evidence. The general rule of application is that '(t)he verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.' Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). The primary responsibility for reviewing the sufficiency of the evidence to support a criminal conviction rests with the Court of Appeals, which in this case held that the Government had satisfied its burden. We agree. Based on the evidence before it, the jury was entitled to conclude that the individual petitioners, as corporate officials directly concerned with the activities of their organizations, were aware of the mail solicitation scheme, and of the contents of the brochure. The evidence is likewise sufficient to establish the existence of a conspiracy to mail the obscene brochure. The existence of an agreement may be shown by circumstances indicating that criminal defendants acted in concert to achieve a common goal. See, e.g., Blumenhal v. United States, 332 U.S. 539, 556 558, 68 S.Ct. 248, 256—257, 92 L.Ed. 154 (1947).
III
78
We turn now to petitioners' attack on certain evidentiary rulings of the District Court. Petitioners have very much the laboring oar in showing that such rulings constitute reversible error, since 'in judicial trials, the whole tendency is to leave rulings as to the illuminating relevance of testimony largely to the discretion of the trial court that hears the evidence.' National Labor Relations Board v. Donnelly Garment Co., 330 U.S. 219, 236, 67 S.Ct. 756, 765, 91 L.Ed. 854 (1947); Michelson v. United States, 335 U.S. 469, 480, 69 S.Ct. 213, 220, 93 L.Ed. 168 (1948); Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 1122, 8 L.Ed.2d 313 (1962).
79
Petitioners offered in evidence at trial three categories of allegedly comparable materials argued to be relevant to community standards: (1) materials which had received second-class mailing privileges; (2) materials which had previously been the subject of litigation and had been found to be 'constitutionally protected'; and (3) materials openly available on the newsstands. The District Court, after examining the materials, refused to admit them into evidence on the grounds that 'they tend to confuse the jury' and 'would serve no probative value in comparison to the amount of confusion and deluge of material that could result therefrom.' App. 158. The Court of Appeals concluded that the District Court was correct in rejecting the proffered evidence, stating that any abuse of discretion in refusing to admit the materials themselves had been 'cured by the District Court's offer to entertain expert testimony with respect to the elements to be shown for the advice of the jury.' 481 F.2d, at 320. Here the District Court permitted four expert witnesses called by petitioners to testify extensively concerning the relevant community standards.
80
The defendant in an obscenity prosecution, just as a defendant in any other prosecution, is entitled to an opportunity to adduce relevant, competent evidence bearing on the issues to be tried. But the availability of similar materials on the newsstands of the community does not automatically make them admissible as tending to prove the nonobscenity of the materials which the defendant is charged with circulating. As stated by the Court of Appeals, the mere fact that materials similar to the brochure at issue here 'are for sale and purchased at book stores around the country does not make them witnesses of virtue.' Ibid. Or, as put by the Court of Appeals in United States v. Manarite, 448 F.2d 583 (CA2 1971):
81
'Mere availability of similar material by itself means nothing more than that other persons are engaged in similar activities.' Id., at 593.
82
Nor do we think the District Court erred in refusing petitioners' offer of a magazine which had received a second-class mailing privilege.14 While federal law, see former 39 U.S.C. § 4354 (1964 ed.); 39 CFR Pt. 132 (1973), may lay down certain standards for the issuance of a second-class mailing permit, this Court has held that these standards give postal inspectors no power of censorship. Hannegan v. Esquire, Inc., 327 U.S. 146, 66 S.Ct. 456, 90 L.Ed. 586 (1946). The mere fact that a publication has acquired a second-class mailing privilege does not therefore create any presumption that it is not obscene.
83
Finally, we do not think the District Court abused its discretion in refusing to admit certain allegedly comparable materials, a film and two magazines,15 which had been found to be nonobscene by this Court. See Pinkus v. Pitchess, 429 F.2d 416 (CA9), aff'd sub nom. California v. Pinkus, 400 U.S. 922, 91 S.Ct. 185, 27 L.Ed.2d 183 (1970); Burgin v. South Carolina, 404 U.S. 806, 92 S.Ct. 46, 30 L.Ed.2d 39 (1971), rev'g 255 S.C. 237, 178 S.E.2d 325 (1970). A judicial determination that particular matters are not obscene does not necessarily make them relevant to the determination of the obscenity of other materials, much less mandate their admission into evidence.
84
Much of the material offered by petitioners was not of demonstrated relevance to the issues in this case. Such of it as may have been clearly relevant was subject to the District Court's observation that it would tend to create more confusion than enlightenment in the minds of the jury, and to the court's expressed willingness to permit the same material to be treated in the testimony of expert witnesses. The District Court retains considerable latitude even with admittedly relevant evidence in rejecting that which is cumulative, and in requiring that which is to be brought to the jury's attention to be done so in a manner least likely to confuse that body. We agree with the Court of Appeals that the District Court's discretion was not abused.16
85
Petitioners' second contention is that the District Court erred in instructing the jury as to the determination of the prurient appeal of the brochure. At the trial, the Government introduced, over petitioners' objection, testimony from an expert witness that the material in the Illustrated Report appealed to the prurient interest of various deviant sexual groups.17 The testimony concerning the brochure was that it appealed to a prurient interest in general, and not specifically to some deviant group. Petitioners concede, however, that each of the pictures said to appeal to deviant groups did in fact appear in the brochure.18 The District Court accordingly instructed the jury that in deciding whether the predominant appeal of the Illustrated Report and the brochure was to a prurient interest in sex, it could consider whether some portions of those materials appealed to a prurient interest of a specifically defined deviant group as well as whether they appealed to the prurient interest of the average person. App. 239—241. The Court of Appeals found no error in the instruction, since it was 'manifest that the District Court considered that some of the portrayals in the Brochure might be found to have a prurient appeal' to a deviant group. 481 F.2d, at 321.
86
Petitioners contend that the District Court's instruction was improper because it allowed the jury to measure the brochure by its appeal to the prurient interest not only of the average person but also of a clearly defined deviant group. Our decision in Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966), clearly indicates that in measuring the prurient appeal of allegedly obscene materials, i.e., whether the 'dominant theme of the material taken as a whole appeals to a prurient interest in sex,' consideration may be given to the prurient appeal of the material to clearly defined deviant sexual groups. Petitioners appear to argue that if some of the material appeals to the prurient interest of sexual deviants while other parts appeal to the prurient interest of the average person, a general finding that the material appeals to a prurient interest in sex is somehow precluded. But we stated in Mishkin v. New York:
87
'Where the material is designed for and primarily disseminated to a clearly defined deviant sexual group, rather than the public at large, the prurient-appeal requirement of the Roth test is satisfied if the dominant theme of the material taken as a whole appeals to the prurient interest in sex of the members of that group. The reference to the 'average' or 'normal' person in Roth, 354 U.S., at 489—490, 77 S.Ct., at 1311, does not foreclose this holding. . . . We adjust the prurient-appeal requirement to social realities by permitting the appeal of this type of material to be assessed in terms of the sexual interests of its intended and probable recipient group; and since our holding requires that the recipient group be defined with more specificity than in terms of sexually immature persons, it also avoids the inadequacy of the most-susceptible-person facet of the (Regina v.) Hicklin ((1868) L.R. 3 Q.B. 360) test.' 383 U.S., at 508—509, 86 S.Ct., at 963 (footnotes omitted).
88
The District Court's instruction was consistent with this statement in Mishkin. The jury was instructed that it must find that the materials as a whole appealed generally to a prurient interest in sex. In making that determination, the jury was properly instructed that it should measure the prurient appeal of the materials as to all groups. Such an instruction was also consistent with our recent decision in the Miller cases. We stated in Miller:
89
'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.' 413 U.S., at 33, 93 S.Ct., at 2620 (emphasis added).
90
Finally, we similarly think petitioners' challenge to the pandering instruction given by the District Court is without merit. The District Court instructed the jurors that they must apply the three-part test of the plurality opinion in Memoirs v. Massachusetts, 383 U.S., at 418, 86 S.Ct., at 977, and then indicated that the jury could, in applying that test, if it found the case to be close, also consider whether the materials had been pandered, by looking to their '(m)anner of distribution, circumstances of production, sale, . . . advertising . . . (and) editorial intent. . . .' App. 245. This instruction was given with respect to both the Illustrated Report and the brochure which advertised it, both of which were at issue in the trial.
91
Petitioners contend that the instruction was improper on the facts adduced below and that it caused them to be 'convicted' of pandering. Pandering was not charged in the indictment of the petitioners, but it is not, of course, an element of the offense of mailing obscene matter under 18 U.S.C. § 1461. The District Court's instruction was clearly consistent with our decision in Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966), which held that evidence of pandering could be relevant in the determination of the obscenity of the materials at issue, as long as the proper constitutional definition of obscenity is applied. Nor does the enactment by Congress of 39 U.S.C. § 3008, enabling the Postal Service to cease forwarding pandering advertisements at the request of an addressee, authorize, as contended by petitioners, the pandering of obscene advertisements. That statute simply gives a postal recipient the means to insulate himself from advertisements which offer for sale matter 'which the addressee in his sole discretion believes to be erotically arousing or sexually provocative,' by instructing the Post Office to order the sender to refrain from mailing any further advertisements to him. See Rowan v. United States Post Office Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970). The statute does not purport to authorize the mailing of legally obscene pandering advertisements, which continues to be proscribed by 18 U.S.C. § 1461. See 39 U.S.C. § 3011(e).
IV
92
Petitioners' final contentions are directed at alleged procedural irregularities said to have occurred during the course of the trial.
93
They first contend that the District Court committed reversible error by denying their request to make additional objections to the court's instructions to the jury out of the presence of the jury. Prior to closing arguments and instructions to the jury the parties had made a record with respect to the instructions which the Court indicated it would give. After argument and instructions, but before the jury had retired, petitioners' counsel approached the bench and requested that the jury be excused in order that he might present further objections to the charge. The court declined to excuse the jury, saying:
94
'You have made all the objections suitable that I can think of. I want to send this Jury out. If you want to make a statement, make a statement.' App. 257.
95
Petitioners contend that the court's refusal to excuse the jury violated the provisions of Fed.Rule Crim.Proc. 30, and requires reversal. Rule 30 provides:
96
'At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. At the same time copies of such requests shall be furnished to adverse parties. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury and, on request of any party, out of the presence of the jury.' (Emphasis added.)
97
Nothing in Rule 30 transfers from the district court to counsel the function of deciding at what point in the trial, consistent with established practice, counsel shall be given the opportunity required by Rule 30 to make a record on the instructions given by the court. But when counsel at the close of the court's instruction to the jury indicates that he wishes to make objections of a kind which could not previously have been brought to the court's attention, he runs the risk of waiving a claim of error under the fourth sentence of the Rule unless the court indicates that it will permit such objections to be made after the jury retires. Since the court here asked counsel for comments, and did not indicate that it would permit objections which could not have been previously formulated to be made after the jury retired, we agree with the Court of Appeals that the District Court erred in refusing to permit such objections to be made out of the presence of the jury. We also agree with the Court of Appeals' conclusion that such procedural error does not mandate reversal.
98
The courts of appeals have taken varying approaches to the question of when a failure to comply with the provisions of Rule 30 constitutes reversible error.19 Some appear to have applied a general rule that such a violation is not reversible error unless the defendant demonstrates that he has been prejudiced. United States v. Hall, 200 F.2d 957 (CA2 1953); United States v. Titus, 221 F.2d 571 (CA2), cert. denied, 350 U.S. 832, 76 S.Ct. 66, 100 L.Ed. 742 (1955); United States v. Fernandez, 456 F.2d 638 (CA2 1972); Hodges v. United States, 243 F.2d 281 (CA5 1957); Sultan v. United States, 249 F.2d 385 (CA5 1957). Others appear to have adopted a rule whereby a violation is not reversible error where it affirmatively appears that the defendant was not prejudiced. United States v. Schartner, 426 F.2d 470 (CA3 1970); Lovely v. United States, 169 F.2d 386 (CA4 1948). At least one Court of Appeals appears to take the position that the failure to comply with Rule 30 is automatic grounds for reversal, regardless of attenuating circumstances. Hall v. United States, 378 F.2d 349 (CA10 1967).
99
The Court of Appeals in this case felt that the rule announced by the Third Circuit in United States v. Schartner, supra, was the appropriate one for application where Rule 30 has not been complied with. The court in Schartner held that a District Court's failure to comply with the 'out of the presence of the jury' requirement of Rule 30, upon proper request by a party, constitutes reversible error 'unless it be demonstrable on an examination of the whole record that the denial of the right did not prejudice' the defendant's case. 426 F.2d, at 480. Applying that rule, the Court of Appeals here concluded that there was no prejudice to any of the petitioners as a result of the District Court's failure to comply with Rule 30.
100
The language in Rule 30 at issue here was added to that Rule by a 1966 amendment; prior to that time the Rule had only provided that a party should be given the opportunity to make the objection out of the hearing of the jury. The significance of the change was not elaborated by the Advisory Committee in its note accompanying the Rule, which merely mentioned the change. Courts examining the Rule have found that it is principally designed to avoid the subtle psychological pressures upon the jurors which would arise if they were to view and hear defense counsel in a posture of apparent antagonism toward the judge. Lovely v. United States, supra, 169 F.2d, at 391; Hodges v. United States, supra, 234 F.2d, at 283—284; United States v. Schartner, supra, 426 F.2d, at 479. While that goal might be served in many cases by a sufficiently low-tone bench conference, the ultimate way to assure the goal is to comply with the Rule.
101
Petitioners urge that we adopt a strict approach and declare that any noncompliance with the Rule requires reversal. We think such an approach would be unduly mechanical, and would be inconsistent with interpretation in pari materia of Rule 30 and other relevant provisions of the Federal Rules of Criminal Procedure, since Rule 52(a) specifically provides that '(a)ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.' This provision suggests the soundness of an approach similar to that of the Court of Appeals here and the various other Court of Appeals, supra, which have in some manner examined the prejudice to the defendant in deciding whether reversal is required where there is a failure to comply with Rule 30.
102
We conclude that the Court of Appeals did not err in refusing to reverse petitioners' convictions for the failure to comply with the provisions of Rule 30. The Court of Appeals felt that it should apply the somewhat stricter test of the Schartner case, supra; the court felt that 'the rule of Fernandez (456 F.2d 638 (CA2 1972)), places a burden upon a defendant in a criminal case that he may not be able to carry.' 481 F.2d, at 324. Applying the Schartner test, the Court of Appeals determined that there was no prejudice to petitioners from the failure to hold the instruction-objection session out of the presence of the jury. Our independent examination of that bench conference convinces us that the holding of the Court of Appeals was correct. The bench conference was one of many at the trial and there is no indication in the record that the discussion was heard by the jury. The colloquy between petitioners' counsel and the court concerned purely legal issues, App. 257—265, and the District Court had prior to that point indicated its rulings with respect to the instructions requested by counsel. We express no view, of course, as to whether a court of appeals may follow the apparently more lenient standard of requiring the defendant to demonstrate that he was prejudiced. See United States v. Fernandez, 456 F.2d, at 643 644.
103
Petitioners' second procedural contention is that the trial jury was improperly constituted because an allegedly cognizable class of citizens, 'young adults,' which petitioners define as those between the ages of 18 and 24 years, were systematically excluded.20 Petitioners therefore argue that the District Court abused its discretion in refusing to grant a continuance until a new jury, which would have presumably contained a greater ratio of young persons, was drawn.
104
At the time of petitioners' indictment and trial, the jury-selection plan of the Southern District of California, adopted pursuant to 28 U.S.C. §§ 1863(b) (2), and (4), 82 Stat. 55, provided for the periodic emptying and refilling of the master jury wheel from voter registration lists. At that point, it had been slightly less than four years since the jury wheel in the District had last been filled. Petitioners' argument is that because the jury wheel had last been filled in 1968, the youngest potential juror for their trial was at least 24 years old. The petitioner called as a witness the Clerk of the Southern District of California, who testified that within one month the master wheel would be refilled with the names of persons who then appeared on the voters' registration list and that the master list would then contain the names of persons 21 years of age and over. Tr. 94—98. A 1972 amendment to 28 U.S.C. § 1863(b)(4) (1970 ed., Supp. II) provided that the periodic emptying and refilling of the master wheel should occur at specified intervals, 'not (to) exceed four years.' Pub.L.No. 92—269, § 2, 86 Stat. 117. The District Court denied petitioners' motion to strike the venire, but stated that the evidence presented indicated that 'it is time to change the jury master wheel.' Tr. 93. The petitioners then moved for a continuance of approximately one month, so that their jury would be drawn from a master wheel that included the names of persons 21 years of age or over. Id., at 95—98. The District Court denied the motion.
105
The Court of Appeals assumed, without deciding, that the young do constitute a cognizable group or class, but concluded that petitioners had 'failed to show, let alone establish, a purposeful systematic exclusion of the members of that class whose names, but for such systematic exclusion would otherwise be selected for the master jury wheel,' and therefore that the District Court's refusal to grant a continuance was not an abuse of discretion. 481 F.2d, at 314. We agree with the Court of Appeals.
106
Petitioners do not cite case authority for the proposition that the young are an identifiable group entitled to a group-based protection under our prior cases, see Hernandez v. Texas, 347 U.S. 475, 479—480, 74 S.Ct. 667, 671, 98 L.Ed. 866 (1954); claims of exclusion of the young from juries have met with little success in the federal courts.21 Assuming, as did the Court of Appeals, that the young are such a group, we do not believe that there is evidence in this case sufficient to make out a prima facie case of discrimination which would in turn place the burden on the Government to overcome it. The master wheel under the Southern District of California plan, as under plans in other judicial districts, is periodically emptied and then refilled with names from the available voter lists. Persons added to the voter lists subsequent to one filling of the jury wheel are therefore not added to the wheel until the next refilling. But some play in the joints of the jury-selection process is necessary in order to accommodate the practical problems of judicial administration. Congress could reasonably adopt procedures which, while designed to assure that 'an impartial jury (is) drawn from a cross-section of the community,' Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S.Ct. 984, 985, 90 L.Ed. 1181 (1946); Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84 (1940), at the same time take into account practical problems in judicial administration. Unless we were to require the daily refilling of the jury wheel, Congress may necessarily conclude that some periodic delay in updating the wheel is reasonable to permit the orderly administration of justice.22 Invariably of course, as time goes on, the jury wheel will be more and more out of date, especially near the end of the statutorily prescribed time period for updating the wheel. But if the jury wheel is not discriminatory when completely updated at the time of each refilling, a prohibited 'purposeful discrimination' does not arise near the end of the period simply because the young and other persons have belatedly become eligible for jury service by becoming registered voters. Whitus v. Georgia, 385 U.S. 545, 551, 87 S.Ct. 643, 647, 17 L.Ed.2d 599 (1967); see Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953); Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972). Since petitioners failed to establish a discriminatory exclusion of the young from their jury, the District Court properly exercised its discretion in refusing to grant petitioners' motion for a continuance.
107
Petitioners' third procedural contention is that the District Court erred in refusing to ask certain questions on voir dire concerning possible religious and other biases of the jurors.23 Specifically, petitioners requested the court to ask questions as to whether the jurors' educational, political, and religious beliefs might affect their views on the question of obscenity. App. 78—81. The Court of Appeals concluded that the District Court's examination on the voir dire of the prospective jurors 'was full, complete and . . . fair to the (petitioners) as contemplated by Rule 24(a), Federal Rules of Criminal Procedure.' 481 F.2d, at 314. Noting that petitioners had requested the submission of numerous questions to the petit panel, the Court of Appeals stated:
108
'The District Court asked many of the questions as submitted, many in altered and consolidated form, and declined to ask many others which were cumulative and argumentative. The handling of those questions not asked was clearly within the range of the District Court's discretion in the matter and no clear abuse of the discretion nor prejudice to the (petitioners) has been shown.' Ibid.
109
We agree with the Court of Appeals. Federal Rule Crim.Proc. 24(a) permits a district court to conduct the voir dire examination, making such use of questions submitted by the parties as it deems proper. The District Court here asked questions similar to many of those submitted by petitioners, and its examination was clearly sufficient to test the qualifications and competency of the prospective jurors. Petitioners' reliance on this Court's decisions in Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931), and Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973), is misplaced. Those cases held that in certain situations a judge must inquire into possible racial prejudices of the jurors in order to satisfy the demands of due process. But in Ham v. South Carolina, supra, we also rejected a claim that the trial judge had erred in refusing to ask the jurors about potential bias against beards, noting our inability 'to constitutionally distinguish possible prejudice against beards from a host of other possible similar prejudices . . ..' Id., at 528, 93 S.Ct., at 851. Here, as in Ham, the trial judge made a general inquiry into the jurors' general views concerning obscenity. Failure to ask specific questions as to the possible effect of educational, political, and religious biases did 'not reach the level of a constitutional violation,' Ibid., nor was it error requiring the exercise of our supervisory authority over the administration of justice in the federal courts. We hold that the District Court acted within its discretion in refusing to ask the questions.
110
The judgment of the Court of Appeals for the Ninth Circuit in this case is affirmed.
111
Affirmed.
112
Mr. Justice DOUGLAS, dissenting.
113
In 1970 the President's Commission on Obscenity and Pornography issued its report. Dean William D. Lockhart was chairman. Eighteen others were members. It was a 646-page report. One member, Charles H. Keating, Jr., filed a dissenting report of some 60 pages with at least as many pages of exhibits. The report contains many references to many facets of sex: e.g., petting, coitus, oral sexuality, masturbation, and homosexual activities.
114
What petitioners did was to supply the report with a glossary not in dictionary terms but visually. Every item in the glossary depicted explicit sexual material within the meaning of that term as used in the report. Perhaps we should have no reports on obscenity. But imbedded in the First Amendment is the philosophy that the people have the right to know.* Sex is more important to some than to others but it is of some importance to all. If officials may constitutionally report on obscenity, I see nothing in the First Amendment that allows us to bar the use of a glossary factually to illustrate what the report discusses.
115
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL join, dissenting.
116
* Whatever the constitutional power of government to regulate the distribution of sexually oriented materials, the First and Fourteenth Amendments, in my view, deny the Federal and State Governments power wholly to suppress their distribution. For I remain of the view 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.' Paris Adult Theatre I v. Slaton, 413 U.S. 49, 113, 93 S.Ct. 2628, 2662, 37 L.Ed.2d 446 (1973) (Brennan, J., dissenting). Since amended 18 U.S.C. § 1461, as construed by the Court, aims at total suppression of distribution by mail of sexually oriented materials, it is, in my view, unconstitutionally overbroad and therefore invalid on its face. On that ground alone, I would reverse the judgment of the Court of Appeals and direct the dismissal of the indictment. Several other reasons, however, also compel the conclusion that petitioners' convictions should be set aside.
II
117
At least since 1962 the accepted construction of amended § 1461 has been that of Mr. Justice Harlan and Mr. Justice STEWART 'that the proper test under this federal statute, (§ 1461,) reaching as it does to all parts of the United States whose population reflects many different ethnic and cultural backgrounds, is a national standard of decency'; further, they said, '(t)he 1958 amendments . . . authorizing criminal prosecution at the place of delivery evince no purpose to make the standard less than national.' Manual Enterprises, Inc. v. Day, 370 U.S. 478, 488, and n. 10, 82 S.Ct. 1432, 1437, 8 L.Ed.2d 639 (1962). The Court today overrules that construction and construes amended § 1461 to permit a juror to 'draw on knowledge of the community or vicinage from which he comes in deciding what conclusion 'the average person applying contemporary community standards' would reach in a given case.' Ante, at 105. Apart from the questions whether the Court's new construction trespasses upon the congressional prerogative, see Blount v. Rizzi, 400 U.S. 410, 419, 91 S.Ct. 423, 429, 27 L.Ed.2d 498 (1971),1 and whether constitutionally any 'local' standard under amended § 1461 can properly be employed to delineate the area of expression protected by the First Amendment, see Pennekamp v. Florida, 328 U.S. 331, 335, 66 S.Ct. 1029, 1031, 90 L.Ed. 1295 (1946)—since '(i)t is, after all, a national Constitution we are expounding,' Jacobellis v. Ohio, 378 U.S. 184, 195, 84 S.Ct. 1676, 1682, 12 L.Ed.2d 793 (1964) (opinion of Brennan, J.)—the construction that a 'local' standard applies in § 1461 cases raises at least another serious First Amendment problem.
118
The 1958 amendments to § 1461 constituted the mailing of obscene matter a continuing offense under 18 U.S.C. § 3237.2 The practical effect of this amendment—intentionally adopted by Congress for that express purpose—is to permit prosecution 'in the Federal district in which (the disseminator) mailed the obscenity, in the Federal district in which the obscenity was received, or in any Federal district through which the obscenity passed while it was on its route through the mailes.' 104 Cong.Rec. 15610—15611 (1958) (remarks of Rep. Hillings); see H.R.Rep.No.2624, 85th Cong., 2d Sess. (1958); 104 Cong.Rec. 8991 (remarks of Rep. Keating); id., at 17832; id., at 8992 (remarks of Rep. Poff). Under today's 'local' standards construction, therefore, the guilt or innocence of distributors of identical materials mailed from the same locale can now turn on the chancy course of transit or place of delivery of the materials. See United States v. Palladino, 490 F.2d 499, 503 (CA1 1974) (Coffin, C.J.). National distributors choosing to send their products in interstate travels will be forced to cope with the community standards of every hamlet into which their goods may wander. Because these variegated standards are impossible to discern, national distributors, fearful of risking the expense and difficulty of defending against prosecution in any of several remote communities, must inevitably be led to retreat to debilitating self-censorship that abridges the First Amendment rights of the people. For it 'would tend to restrict the public's access to forms (of sexually oriented materials) which the (United States) could not constitutionally suppress directly . . . a censorship . . . hardly less virulent for being privately administered (, for) (t)hrough it, the distribution of all (sexually oriented materials), both obscene and not obscene, would be impeded.' Smith v. California, 361 U.S. 147, 154, 80 S.Ct. 215, 219, 4 L.Ed.2d 205 (1959). Thus, the people of many communities will be 'protected' far beyond government's constitutional power to deny them access to sexually oriented materials. A construction that has such consequences necessarily renders the constitutionality of amended § 1461 facially suspect under the First Amendment.
III
119
But even on the assumption that amended § 1461 is invulnerable to constitutional attack, the Court's affirmance of these convictions is a patently indefensible denial to these petitioners of due process of law. The trial judge followed Manual Enterprise's construction of amended § 1461 that required a determination of guilt upon the basis of a 'national' standard of decency. The Court holds that under today's new 'local' standards construction, this was error. Yet, says the Court, the error in effect was harmless because the references in the instructions to 'national' standards could not have 'materially affected (the jurors') deliberations . . ..' Ante, at 108. The trial transcript lays bare the utter fallacy of that conclusion.
120
First, the Court appraises the trial court's references to 'national' standards as 'isolated,' and cites Boyd v. United States, 271 U.S. 104, 107, 46 S.Ct. 442, 443, 70 L.Ed. 857 (1926), ante, at 107—108, where the Court held that an ambiguous statement in a charge in a criminal case, which, interpreted one way, would be erroneous, but which considered with the charge as a whole, probably was understood by the jurors in a harmless sense, is not a ground for reversal. But to represent the references to 'national' standards in the court's instructions as 'isolated,' and probably understood by the jury in a harmless sense, is completely to misread the instructions. The emphasis on 'national' standards is the very core of the instructions, because the trial judge made 'national' standards the central criterion of the determination of the obscenity of the brochure. He referred to 'national' standards in his instructions no less than 18 times, 14 of them within the space of four transcript pages.3 Indeed, his emphasis made such an impression upon the jurors' minds that they returned from the jury room and requested that the trial judge reread them this portion of the instructions. See Tr. 4989—4990.4
121
Of at least as much—if not more—significance, the trial judge's refusal to permit the defense to offer proof of 'local' standards evidences how utterly mistaken is the Court's surmise that the emphasis upon 'national' standards in the instructions could not have 'materially affected' the deliberations of the jurors. Virginia Carlsen was offered as a defense witness. Trial was in the Southern District of California which covers San Diego and Imperial Counties. Miss Carlsen testified that, under the supervision of a professor at San Diego State University, she polled San Diego residents to ascertain their reaction to the brochure. The trial judge refused to admit the results of her survey in evidence, despite a side-bar offer of proof that it would demonstrate that a substantial majority of the 718 persons interviewed had expressed the view that the brochure should be generally available to the public. Significantly, the survey was excluded by the trial judge solely on the ground that '(y)ou can't use a piece of a standard as the standard,' thus emphasizing that guilt was to be predicated on violation of a national standard, or not at all. The colloquy at side bar was as follows:
122
'MR. KATZ. . . . The questions on the survey I think are self-explanatory. She showed people the Illustrated Report; she showed people the survey—I mean the advertisement in the questionnaire, and recorded their responses and calculated them on the basis of sex and on the basis of age, and I think the jury should be entitled, your Honor, to use this as one of the tests they use in deciding what is (sic) community standards and what weight should be given to it is a question for the jury.
123
'THE COURT. Well, I don't agree with you, Mr. Katz, at all.
124
'I think you have a national standard here. You are going to have to stay with your national standard.
125
'I think it does go to the admissibility. You can't use a piece of a standard as the standard. If that were true, you would defeat the entire general standard.
126
'So I am not going to permit you to go any further with this witness with respect to this.' Tr. 3932—3933 (emphasis supplied).
127
'MR. FLEISHMAN. . . . I think whatever limitations your Honor would put on it would be correct, but I think it would be and should be admitted for whatever weight it has.
128
'THE COURT. No. It is a national standard and I don't think this is the proper way to go about determining the national standard.' Id., at 3937 (emphasis supplied).
129
The affirmance of petitioners' convictions in these circumstances plainly denies petitioners due process of law in violation of the principle of Saunders v. Shaw, 244 U.S. 317, 37 S.Ct. 638, 61 L.Ed. 1163 (1917). There, the plaintiff sought to enjoin collection of a drainage tax. At trial, the trial judge ruled inadmissible plaintiff's evidence that his land would not benefit from certain drainage improvements. Defendant therefore offered no proof that the plaintiff's lands would benefit and prevailed at trial. The State Supreme Court reversed and granted a permanent injunction against the tax upon finding from the answer and testimony before it that the land had not been, and could not be, benefited. We reversed, holding that it was a violation of due process of law for a State Supreme Court to reverse a case and render judgment absolute, against a defendant who succeeded in the trial court, upon a proposition of fact that was ruled to be immaterial at the trial and concerning which the defendant had therefore no occasion and no proper opportunity to introduce rebuttal evidence.
130
Petitioners' situation in this case is identical with that of the defendant in Saunders. Petitioners, too, were denied at trial admission of evidence upon a proposition of fact that was ruled immaterial and concerning which they therefore had no proper opportunity to introduce their proof. Had petitioners been aware that the proper criterion was the 'local' standard, not only were they prepared to offer proof of the 'local' standard, but obviously the strategy of their defense would have been completely different. To affirm their convictions without affording them opportunity to try the case on the 'local' standards basis is a clear denial of due process. Saunders was, of course, a civil case. But the principle there announced surely has even greater application where, as here, criminal convictions carrying long prison sentences are involved.
131
'The right to present evidence is, of course, essential to the fair hearing required by the Due Process Clause. . . . And . . . this right becomes particularly fundamental when the proceeding allegedly results in a finding that a particular individual was guilty of a crime.' Jenkins v. McKeithen, 395 U.S. 411, 429, 89 S.Ct. 1843, 1853, 23 L.Ed.2d 404 (1969) (opinion of MARSHALL, J.).
132
But in addition to the palpable absurdity of the court's surmises that introduction of the San Diego study could not have affected the jurors' deliberations, and that petitioners would not have introduced additional evidence or done anything materially different had they known the jurors would be instructed on local standards, the Court's assertion that the jurors could not have ruled differently if instructed to apply local, not national, standards evinces a claim of omniscience hardly mortal. It is the more remarkable in light of the contrary supposition of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), that a jury instructed to apply national standards could indeed reach a different conclusion from what it might if instructed to apply local standards:
133
'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. . . . People in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity.' Id., at 32—33, 93 S.Ct., at 2620.
134
Indeed, Miller rejected the 'national' standards test on the ground, inter alia, that a 'local' standard would allow a given community to apply a more permissive test:
135
'The use of 'national' standards . . . necessarily implies that materials found tolerable in some places, but not under the 'national' criteria, will nevertheless be unavailable where they are acceptable.' Id., at 32 n. 13, 93 S.Ct., at 2619.
136
Yet for the purpose of affirming these convictions the Court holds in effect that the local standards of jurors drawn from the Southern District of California could not possibly be more permissive than those of the Nation as a whole.5
137
The Court's affirmance, in addition to denying due process in its refusal to apply the Saunders principle, also denies petitioners due process in another way. It is abundantly clear that petitioners' convictions are sustained upon a charge wholly different from that upon which they were tried. They were tried upon a charge of violating 'national' standards and their convictions are affirmed as if they were tried for violating 'local' standards. Under the law long settled by our cases, treating a conviction as a conviction upon a charge not made is a denial of due process of law. Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948); Eaton v. Tulsa, 415 U.S. 697, 94 S.Ct. 1228, 39 L.Ed.2d 693 (1974). A distaste, however strong, for commercial vendors of alleged pornography is no justification for denying petitioners the application of the principle imposed upon the courts of Arkansas and Oklahoma in those cases. Ours may be the final voice, but that is the greater reason for meticulous discharge of our responsibility to dispense evenhanded justice. The least to which petitioners are entitled is vacation of their convictions and a remand for a new trial.
1
The indictment is reproduced in full at App. 14—31.
2
Each petitioner was convicted on counts 1—5 and 7—13 of the indictment. App. 9. Petitioner Hamling was sentenced to imprisonment for one year on the conspiracy count, and consecutive to that, concurrent terms of three years each on the 11 substantive counts, and he was fined $32,000. Petitioner Kemp was sentenced to imprisonment for one year and one day on the conspiracy count, and consecutive to that, concurrent terms of two years each on the 11 substantive counts. Petitioners Wright and Thomas received suspended sentences of one and one-half years, and were placed on probation for five years. Petitioners Reed Enterprises, Inc., and Library Services, Inc., were fined $43,000 and $12,000, respectively.
3
Those counts on which the jury was unable to reach a verdict and upon which a mistrial was declared were counts 15, 16, 17, 19, and 21. App. 10. After presentation of the Government's case, the District Court dismissed four of the substantive counts (6, 14, 18, and 20) for lack of proof. App. 7; Brief for United States 6 n. 4. The obscenity vel non of the Illustrated Report was thus not at issue in the Court of Appeals nor is it at issue in this Court.
4
The only printed words appearing on the interfold of pictures are:
'In the Katzman Studies (1970) for the Commission (see page 180), some 90 photographs were rated on five-point scales for 'obscene' and 'sexually stimulating' by the control group. Group activity scenes of the type here illustrated, could have been part of the 90. Both these group sex pictures are from the Danish magazine Porno Club No. 3, supposedly this was filmed at a 'live show' night club in Copenhagen. There are many similar clubs.'
5
Greenleaf Classics, Inc., was also indicted, but was acquitted on the counts involving the brochure, including the conspiracy count. As mentioned above, the jury was unable to reach a verdict on the counts involving the Illustrated Report. See n. 3, supra.
6
Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973); United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973); United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973).
7
Upon withdrawing the original order denying rehearing for reconsideration in light of Miller v. California, supra, and the related cases, the Court of Appeals stated (Pet. for Cert. App. 39 40):
'We heretofore determined that the evidence was abundantly sufficient to meet, and the District Court's jury instructions in full compliance with, the essential elements of the Roth-Memoirs test. United States v. One Reel of Film, et al., (481) F.2d (206) (1st Cir. July 16, 1973, No. 73—1181) at pages 5 and 7 of the slip opinion, in considering the same problem, succinctly states: "A fortiori the more relaxed standards announced by the Supreme Court were met.
"(W)e see no possible reason to remand, especially as the Supreme Court has just addressed itself to the construction and adequacy of the federal statute involved. See United States v. 12 200-Ft. Reels of Super 8mm. Film, supra, 41 U.S.L.W. at 4963, n. 7 (413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500)."
8
Title 18 U.S.C. § 1461 provides in pertinent part:
'Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance; and—
'Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained or made . . ..
'Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.
'Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared by this section or section 3001(e) of title 39 to be nonmailable, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, or knowingly takes any such thing from the mails for the purpose of circulating or disposing thereof, or of aiding in the circulation or disposition thereof, 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. . . .'
9
United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973); United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973).
10
The stated basis for the District Court's exclusion of the testimony of Miss Carlsen was that her survey was not framed in terms of 'national' standards, but it is not at all clear that the District Court would have admitted her testimony had it been so framed. '(A) specific objection sustained . . . is sufficient, though naming an untenable ground, if some other tenable one existed.' 1 J. Wigmore, Evidence § 18, p. 32 (3d ed. 1940), citing Kansas City S.R. Co. v. Jones, 241 U.S. 181, 36 S.Ct. 513, 60 L.Ed. 943 (1916). Miss Carlsen was a student at San Diego State University who worked part time at F. W. Woolworth, doing composition layouts of newspaper advertising for the company's store in Fashion Valley. She had undertaken a 'Special Studies' course with her journalism professor, Mr. Haberstroh, who was also offered by petitioners as an expert witness at the trial. Miss Carlsen had circulated through the San Diego area and asked various persons at random whether they thought 'adults should be able to buy and view this book and material.' Tr. 3926.
11
The sequence of events in this case is quite different from that in Saunders v. Shaw, 244 U.S. 317, 37 S.Ct. 638, 61 L.Ed. 1163 (1917), upon which our Brother BRENNAN relies. There the Supreme Court of Louisiana directed the entry of judgment against an intervening defendant who had prevailed in the trial court, on the basis of testimony adduced merely as an offer of proof by the plaintiff, and to which the intervening defendant had therefore had no occasion to respond. Since the trial court had ruled that the issue to which plaintiff's proof was addressed as irrelevant, this Court reversed the Supreme Court of Louisiana in order that the intervening defendant might have an opportunity to controvert the plaintiff's proof. Here petitioners were given full latitude in rebutting every factual issue dealt with in the Government's case, and no claim is made that the jury was permitted to rely on evidence introduced merely by way of offer of proof which was not subject to cross-examination or to contradiction by countervailing evidence offered by the petitioners. The present case seems to us much closer to Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966), than to Saunders.
12
Petitioners' further contention that our remand to the District Court in United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973), for reconsideration of the sufficiency of the indictment in light of Miller and United States v. 12 200-ft. Reels of Film, indicates that the sufficiency of their indictment is in question misses the mark. In Orito, we reviewed a District Court judgment which had dismissed an indictment under 18 U.S.C. § 1462 and held the statute unconstitutional. In upholding the statute and vacating the judgment of the District Court, we remanded the case for reconsideration of the indictment in light of Miller and 12 200-ft. Reels, which had, of course, enunciated new standards for state and federal obscenity prosecutions, and for reconsideration in light of our opinion reversing the District Court's holding that the statute was unconstitutional. Here of course, the District Court and the Court of Appeals have already upheld both the sufficiency of the indictment and the constitutionality of 18 U.S.C. § 1461, and we agree with their rulings.
13
Mr. Justice BRENNAN, joined by Mr. Chief Justice WARREN and Mr. Justice DOUGLAS, concluded that 18 U.S.C. § 1461 does not authorize the Postmaster General to employ any administrative process of his own to close the mails to matter which, in his view, falls within the ban of that section. Manual Enterprises, Inc. v. Day, 370 U.S. 478, 495—519, 82 S.Ct. 1432, 1441—1453, 8 L.Ed.2d 639 (1962) (separate opinion).
14
The magazine offered was entitled Nude Living, No. 63. The foundation alleged for its admissibility was that it had received a second-class mailing privilege. App. 212—213.
15
Brief for Petitioner Kemp 69.
16
Other proffered materials, alleged to be comparable, included numerous magazines and films, and also the survey (see n. 10, supra) conducted by the student at San Diego State University of the reactions of people in the San Diego area to the Illustrated Report and the brochure. Brief for Petitioner Kemp 64 71.
17
Petitioners also contend that this evidence was at variance with the Government's answer to their Bill of Particulars. Brief for Petitioner Hamling 49—50. The Court of Appeals assumed, without deciding, that such evidence did constitute a variance, but concluded that 'such variance was in no wise a surprise or prejudice to the defendants as their own expert opinion testimony interwove and covered the same field completely.' 481 F.2d, at 322. We agree with the Court of Appeals.
18
Brief for Petitioner Hamling 49—50.
19
Federal Rule Civ.Proc. 51 states that '(o)pportunity shall be given to make the objection out of the hearing of the jury.' Though the 'out of the presence of the jury' language is not contained in that Rule, the Advisory Committee's note attending Fed.Rule Crim.Proc. 30 states that it is to 'correspond to Rule 51 of the Federal Rules of Civil Procedure . . .. It seemed appropriate that on a point such as instructions to juries there should be no difference in procedure between civil and criminal cases.' The Government argues that in considering whether failure to comply with Fed.Rule Crim.Proc. 30 requires reversal, the appropriate test should be similar to the general standard of consideration where there is a failure to comply with Fed.Rule Civ.Proc. 51, i.e., reversal is required 'if there is reasonable basis for concluding that the colloquy had in the presence of the jury as a result of the judge's ignoring or denying a proper request was prejudicial.' Swain v. Boeing Airplane Co., 337 F.2d 940, 943 (CA2 1964), cert. denied, 380 U.S. 951, 85 S.Ct. 1083, 13 L.Ed.2d 969 (1965). This approach was used by a panel of the Court of Appeals for the Second Circuit in a case involving failure to comply with Fed.Rule Crim.Proc. 30. United States v. Fernandez, 456 F.2d 638 (1972).
20
In connection with their motion to strike the venire, petitioners introduced evidence which they contended established that 'young persons were a cognizable group and that they were more tolerant than older persons in matters pertaining to the depiction of sexually explicit material.' Brief for Petitioner Hamling 88.
21
See, e.g., United States v. Butera, 420 F.2d 564 (CA1 1970); United States v. Camara, 451 F.2d 1122 (CA1 1971); United States v. Gooding, 473 F.2d 425 (CA5 1973); United States v. Kuhn, 441 F.2d 179 (CA5 1971); United States v. Gast, 457 F.2d 141 (CA7), cert. denied, 406 U.S. 969, 92 S.Ct. 2426, 32 L.Ed.2d 668 (1972).
22
Various delays in refilling jury wheels have been upheld by the federal courts. E.g., United States v. Pentado, 463 F.2d 355 (CA5 1972) (three years); United States v. Gooding, supra, (three years, four months); United States v. Kuhn, supra, (five years).
23
Petitioners also contend that certain actions of the Government's attorney before the grand jury prejudiced that body against them. The Court of Appeals, in rejecting this contention, stated:
'The record before us is totally lacking of any evidence or showing of any kind that any member of the Grand Jury was biased or prejudiced in any degree against any of the (petitioners), except only a supposition as to how the members may have reacted upon a view of the Brochure and Report. The presumption of regularity which attaches to Grand Jury proceedings still abides. . . . (T)he assignment has no merit.' 481 F.2d, at 313 (citations omitted).
We agree with the Court of Appeals.
*
The Constitution of India (Mar. 1, 1963) provides in Art. 19(1) that '(a)ll citizens shall have the right—(a) to freedom of speech and expression'; but Art. 19(2) provides that nothing in that clause bars 'reasonable restrictions on the exercise' of those rights 'in the interests of . . . decency or morality.' Our First Amendment contains no such qualification and certainly when Jefferson and Madison drafted it, sex had as great a potential for vulgarity as for beauty. If they had wanted a federal censor to edit our publications, they certainly would have made it explicit.
1
The Court is, of course, obliged to strain to construe congressional enactments to avoid constitutional attacks. It cannot, however, emasculate a statute to avoid a perceived constitutional difficulty, see Aptheker v. Secretary of State, 378 U.S. 500, 515, 84 S.Ct. 1659, 1668, 12 L.Ed.2d 992 (1964); George Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379, 53 S.Ct. 620, 622, 77 L.Ed. 1265 (1933). The legislative history of § 1461 gives not the slightest indication that the application of local standards was contemplated. Indeed, the remarks of an early sponsor of the provision indicate that application of a national standard was intended: 'If there be a trial in this country or anywhere else of an obscene character—of that character that a report of it would corrupt the morals of the youth and the morals of the country generally—then I do not think the United States should provide the means to circulate that kind of literature in whatever paper or in whatever book it may be published.' 4 Cong.Rec. 696 (1876) (remarks of Rep. Cannon) (emphasis added).
2
Prior to the amendment § 1461, read, '(w)hoever knowingly deposits for mailing or delivery . . ..' (emphasis added). This was changed to read '(w)hoever knowingly uses the mails . . ..' The amendment overruled United States v. Ross, 205 F.2d 619 (CA10 1953), which held that the unlawful act proscribed in § 1461 was 'the deposit for mailing and not a use of the mails which may follow such deposit,' id., at 621, and thus brought § 1461 within 18 U.S.C. § 3237, which provides in relevant part that '(a)ny offense involving the use of the mails, or transportation in interstate or foreign commerce, is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such commerce or mail matter moves.' See generally Note, Venue: Its Impact on Obscenity, 11 S.D.L.Rev. 363 (1966).
3
The portion of the instructions containing the 14 references is as follows:
'Now, as to the second test, another requirement to be applied in determining whether the material in evidence is obscene, is whether the material is patently offensive in that it goes substantially beyond what is reasonably accepted according to the contemporary standards of the community as a whole, the national community as a whole. In applying this test you must consider each book or advertisement as a whole and not part by part. You must measure the material by contemporary or current national community standards and determine whether the material so exceeds the customary limits of candor in the descriptions and representations of sex and nudity which are reasonably acceptable in the national community, that they are patently offensive.
'Contemporary community standards means the standards generally held throughout this country concerning sex and matters pertaining to sex. The phrase means, as it has been aptly stated, the average conscience of the time, and the present critical point in the compromise between candor and shame, at which the community may have arrived here and now.
'You are the sole judges of the contemporary community standards of this country. In arriving at and applying your judgment, however, you are not to consider your own standards. That is, of what is good or what is bad. You are not to condemn by your own standards, if you know and believe them to be stricter than those generally held, and you are not to exculpate or excuse by your own standards, if you know and believe them to be more tolerant than those that are generally held. You are not to limit yourself to what you have learned while residing in your present locality or what you have learned or observed from and about people residing in your present locality. Rather, you are to call upon everything you have learned, seen, read, and observed from both the evidence presented at the trial and the experience you have gained from your own observations and experience in your affairs of life.
'If you find the materials in evidence to substantially exceed the limits of candor in the descriptions and representations of sex which
are acceptable in the national community, then you may find the material to be patently offensive.
'You will note that the book and advertisement here involved cannot be found to be obscene unless the evidence shows beyond a reasonable doubt that these materials substantially exceed customary limits of candor in the nation as a whole in the description and representation of sex and nudity.
'The word 'substantially' has been defined as greatly or considerably, or largely. The contemporary community standards of the nation, are set by what is, in fact, reasonably accepted by the national community as a whole. That is to say, by society at large or people in general throughout the nation, and not by what some persons or groups of persons may believe the national community as a whole ought to accept or refuse to accept. It is a matter of common knowledge of which the Court takes judicial notice, that the customs change and that the national community as a whole may, from time to time, find acceptable that which was formerly unacceptable.
'Now, in determining and applying contemporary national community standards, you must consider what appears generally in magazines, books, newspapers, television, burlesque, night clubs, novels, motion pictures, the stage, and other media of communications in the nation as a whole, insofar as social value is concerned.' Tr. 4948—4951; App. 241—243 (emphasis supplied).
Four additional references to national standards appear at pages 4945, 4953, and 4960 of the trial transcript.
4
Petitioners' failure to object to the national-standards instructions can hardly be used to shift to their shoulders any burden of demonstrating prejudice. See O'Connor v. Ohio, 385 U.S. 92, 87 S.Ct. 252, 17 L.Ed.2d 189 (1966). The Court's reliance upon Namet v. United States, 373 U.S. 179, 190—191, 83 S.Ct. 1151, 1156 1157, 10 L.Led.2d 278 (1963), and Lopez v. United States, 373 U.S. 427, 436, 83 S.Ct. 1381, 1386, 10 L.Ed.2d 462 (1963), cases in which defendants failed to object to instructions which were erroneous at the time the jury was instructed and in which the defendants were therefore required to demonstrate that the instructions constituted 'plain error,' are thus inapt.
5
It may be that the Court's unarticulated assumption is that jurors instructed to apply 'national' standards will inevitably apply the standards of their local community, because national standards are simply 'unascertainable.' But to say that it may be difficult or even impossible to determine national standards is a far cry from saying that the jurors—instructed that it is their solemn duty to apply the law as pronounced by the Court—would not attempt to do so; or, indeed, that they would not reach a conclusion that the national standards differed from those of their local community.
| 23
|
41 L.Ed.2d 535
94 S.Ct. 2757
418 U.S. 1
COMMISSIONER OF INTERNAL REVENUE, Petitioner,v.IDAHO POWER COMPANY.
No. 73—263.
Argued Feb. 27, 1974.
Decided June 24, 1974.
Syllabus
Section 167(a) of the Internal Revenue Code of 1954 allows a depreciation deduction from gross income for 'property used in the (taxpayer's) trade or business' or 'held for the production of income,' whereas § 263(a)(1) of the Code disallows a deduction for '(a)ny amount paid out for new buildings or for permanent improvements or betterments made to increase the value of any property or estate,' expenditures which, the regulations state, include the 'cost of acquisition, construction, or erection of buildings.' Section 161 makes the deductions specified in that part of the Code, including § 167(a), subject to the exceptions provided in the part including § 263. Respondent public utility claimed a deduction from gross income under § 167(a) for all the depreciation for the year on its transportation equipment (cars, trucks, etc.), including that portion attributable to its use in constructing capital facilities, although on its books, as required by the regulatory agencies, it charged such equipment, to the extent it was used in construction, to the capital assets so constructed. The Commissioner of Internal Revenue disallowed the deduction for the construction-related depreciation, ruling that that depreciation was a nondeductible capital expenditure under § 263 (a). The Commissioner was upheld by the Tax Court, but the Court of Appeals reversed, holding that a deduction expressly enumerated in the Code, such as that for depreciation, may properly be taken even if it relates to a capital item, and that § 263(a)(1) was inapplicable because depreciation is not an 'amount paid out' as required by that section. Held: The equipment depreciation allocable to the taxpayer's construction of capital facilities must be capitalized under § 263(a)(1). Pp. 10—19.
(a) Accepted accounting practice and established tax principles require the capitalization of the cost of acquiring a capital asset, including the cost incurred in a taxpayer's construction of capital facilities. The purpose of depreciation accounting is the allocation of the expense of using an asset over the tax periods benefited by that asset. Pp. 10—13.
(b) Construction-related depreciation is not unlike expenditure for other construction-related items, such as construction workers' wages, which must be treated as part of the cost of acquiring a capital asset. The significant fact is that the exhaustion of the construction equipment does not represent the final disposition of the taxpayer's investment in that equipment; rather such investment is assimilated into the cost of the capital asset constructed, and this capitalization prevents the distortion of income that would otherwise occur if depreciation properly allocable to asset acquisition were deducted from gross income currently realized. P. 13—14.
(c) Capitalization of construction-related equipment depreciation by the taxpayer which does its own construction work maintains tax parity with the taxpayer which has such work done independently. P. 14.
(d) Where a taxpayer's generally accepted method of acocunting is made compulsory by the regulatory agency and that method clearly reflects income, as here, it is almost presumptively controlling of federal income tax consequences. Pp. 14—15.
(e) Considering § 263(a)(1)'s literal language in denying a deduction for '(a) ny amount paid out' for construction or permanent improvement of facilities, and its purpose to reflect the basic principle that a capital expenditure may not be deducted from current income, as well as the regulations indicating that for purposes of § 263(a)(1) 'amount paid out' equates with 'cost incurred,' there is no question that the cost of the transportation equipment was 'paid out' in the same manner as the cost of other construction-related items, such as supplies, materials, and wages, which the taxpayer capitalized. Pp. 16—17.
(f) The priority-ordering directive of § 161 requires that § 263(a)'s capitalization provision take precedence, on the facts, over § 167(a). P. 17—19.
9 Cir., 477 F.2d 688, reversed.
Keith A. Jones, Washington, D.C., for petitioner.
Frank Norton Kern, New York City, for respondent.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
This case presents the sole issue whether, for federal income tax purposes, a taxpayer is entitled to a deduction from gross income, under § 167(a) of the Internal Revenue Code of 1954, 26 U.S.C. § 167(a),1 for depreciation on equipment the taxpayer owns and uses in the construction of its own capital facilities, or whether the capitalization provision of § 263(a)(1) of the Code, 26 U.S.C. § 263(a)(1),2 bars the deduction.
2
The taxpayer claimed the deduction, but the Commissioner of Internal Revenue disallowed it. The Tax Court (Scott, J., in an opinion not reviewed by the full court) upheld the Commissioner's determination. 29 T.C.M. 383 (1970). The United States Court of Appeals for the Ninth Circuit, declining to follow a Court of Claims decision, Southern Natural Gas Co. v. United States, 412 F.2d 1222, 1264—1269, 188 Ct.Cl. 302, 372—380 (1969), reversed. 477 F.2d 688 (1973). We granted certiorari in order to resolve the apparent conflict between the Court of Claims and the Court of Appeals. 414 U.S. 999, 94 S.Ct. 351, 38 L.Ed.2d 235 (1973).
3
* Nearly all the relevant facts are stipulated. The taxpayer-respondent, Idaho Power Company, is a Maine corporation organized in 1915, with its principal place of business at Boise, Idaho. It is a public utility engaged in the production, transmission, distribution, and sale of electric energy. The taxpayer keeps its books and files its federal income tax returns on the calendar year accrual basis. The tax years at issue are 1962 and 1963.
4
For many years, the taxpayer has used its own equipment and employees in the construction of improvements and additions to its capital facilities.3 The major work has consisted of transmission lines, transmission switching stations, distribution lines, distribution stations, and connecting facilities.
5
During 1962 and 1963, the tax years in question, taxpayer owned and used in its business a wide variety of automotive transportation equipment, including passenger cars, trucks of all descriptions, power-operated equipment, and trailers. Radio communication devices were affixed to the equipment and were used in its daily operations. The transportation equipment was used in part for operation and maintenance and in part for the construction of capital facilities having a useful life of more than one year.
6
On its books, the taxpayer used various methods of charging costs incurred in connection with its transportation equipment either to current expense or to capital accounts. To the extent the equipment was used in construction, the taxpayer charged depreciation of the equipment, as well as all operating and maintenance costs (other than pension contributions and social security and motor vehicle taxes) to the capital assets so constructed. This was done either directly or through clearing accounts in accordance with procedures prescribed by the Federal Power Commission and adopted by the Idaho Public Utilities Commission.
7
For federal income tax purposes, however, the taxpayer treated the depreciation on transportation equipment differently. It claimed as a deduction from gross income all the year's depreciation on such equipment, including that portion attributable to its use in constructing capital facilities. The depreciation was computed on a composite life of 10 years and under straight-line and declining-balance methods. The other operating and maintenance costs the taxpayer had charged on its books to capital were not claimed as current expenses and were not deducted.
8
To summarize: On its books, in accordance with Federal Power Commission-Idaho Public Utilities Commission prescribed methods, the taxpayer capitalized the construction-related depreciation, but for income tax purposes that depreciation increment was claimed as a deduction under § 167(a).4
9
Upon audit, the Commissioner of Internal Revenue disallowed the deduction for the construction-related depreciation. He ruled that that depreciation was a nondeductible capital expenditure to which § 263(a)(1) had application. He added the amount of the depreciation so disallowed to the taxpayer's adjusted basis in its capital facilities, and then allowed a deduction for an appropriate amount of depreciation on the addition, computed over the useful life (30 years or more) of the property constructed. A deduction for depreciation of the transportation equipment to the extent of its use in day-to-day operation and maintenance was also allowed. The result of these adjustments was the disallowance of depreciation, as claimed by the taxpayer on its returns, in the net amounts of $140,429.75 and $96,811.95 for 1962 and 1963, respectively. This gave rise to asserted deficiencies in taxpayer's income taxes for those two years of.$73,023.47 and $50,342.21.
10
The Tax Court agreed with the decision of the Court of Claims in Southern Natural Gas, supra, and described that holding as one to the effect that 'depreciation allocable to the use of the equipment in the construction of capital improvements was not deductible in the year the equipment was so used but should be capitalized and recovered over the useful life of the assets constructed.' 29 T.C.M., at 386. The Tax Court, accordingly, held that the Commissioner 'properly disallowed as a deduction . . . this allocable portion of depreciation and that such amount should be capitalized as part of (taxpayer's) basis in the permanent improvements in the construction of which the equipment was used.' Ibid.
11
The Court of Appeals, on the other hand, perceived in the Internal Revenue Code of 1954 the presence of a liberal congressional policy toward depreciation, the underlying theory of which is that capital assets used in business should not be exhausted without provision for replacement. 477 F.2d, at 690—693. The court concluded that a deduction expressly enumerated in the Code, such as that for depreciation, may properly be taken and that 'no exception is made should it relate to a capital item.' Id., at 693. Section 263(a)(1) of the Code was found not to be applicable because depreciation is not an 'amount paid out,' as required by that section. The court found Southern Natural Gas unpersuasive and felt 'constrained to distinguish' it in reversing the Tax Court judgment. 477 F.2d, at 695—696.
12
The taxpayer asserts that its transportation equipment is used in its 'trade or business' and that depreciation thereon is therefore deductible under § 167(a)(1) of the Code. The Commissioner concedes that § 167 may be said to have a literal application to depreciation on equipment used in capital construction,5 Brief for Petitioner 16, but contends that the provision must be read in light of § 263(a)(1) which specifically disallows any deduction for an amount 'paid out for new buildings or for permanent improvements or betterments.' He argues that § 263 takes precedence over § 167 by virtue of what he calls the 'priority-ordering' terms (and what the taxpayer describes as 'housekeeping' provisions) of § 161 of the Code, 26 U.S.C. § 161,6 and that sound principles of accounting and taxation mandate the capitalization of this depreciation.
13
It is worth noting the various items that are not at issue here. The mathematics, as such, is not in dispute. The taxpayer has capitalized, as part of its cost of acquisition of capital assets, the operating and maintenance costs (other than depreciation, pension contributions, and social security and motor vehicle taxes) of the transportation equipment attributable to construction. This is not contested. The Commissioner does not dispute that the portion of the transportation equipment's depreciation allocable to operation and maintenance of facilities, in contrast with construction thereof, qualifies as a deduction from gross income. There is no disagreement as to the allocation of depreciation between construction and maintenance. The issue, thus comes down primarily to a question of timing, as the Court of Appeals recognized, 477 F.2d, at 692, that is, whether the construction-related depreciation is to be amortized and deducted over the shorter life of the equipment or, instead, is to be amortized and deducted over the longer life of the capital facilities constructed.
II
14
Our primary concern is with the necessity to treat construction-related depreciation in a manner that comports with accounting and taxation realities. Over a period of time a capital asset is consumed and, correspondingly over that period, its theoretical value and utility are thereby reduced. Depreciation is an accounting device which recognizes that the physical consumption of a capital asset is a true cost, since the asset is being depleted.7 As the process of consumption continues, and depreciation is claimed and allowed, the asset's adjusted income tax basis is reduced to reflect the distribution of its cost over the accounting periods affected. The Court stated in Hertz Corp. v. United States, 364 U.S. 122, 126, 80 S.Ct. 1420, 1422, 4 L.Ed.2d 1603 (1960): '(T)he purpose of depreciation accounting is to allocate the expense of using an asset to the various periods which are benefited by that asset.' See also United States v. Ludey, 274 U.S. 295, 300—301, 47 S.Ct. 608, 610, 71 L.Ed. 1054 (1927); Massey Motors, Inc. v. United States, 364 U.S. 92, 96, 80 S.Ct. 1411, 1414, 4 L.Ed.2d 1592 (1960); Fribourg Navigation Co. v. Commissioner of Internal Revenue, 383 U.S. 272, 276—277, 86 S.Ct. 862, 865—866, 15 L.Ed.2d 751 (1966). When the asset is used to further the taxpayer's day-to-day business operations, the periods of benefit usually correlate with the production of income. Thus, to the extent that equipment is used in such operations, a current depreciation deduction is an appropriate offset to gross income currently produced. It is clear, however, that different principles are implicated when the consumption of the asset takes place in the construction of other assets that, in the future, will produce income themselves. In this latter situation, the cost represented by depreciation does not correlate with production of current income. Rather, the cost, although certainly presently incurred, is related to the future and is appropriately allocated as part of the cost of acquiring an income-producing capital asset.
15
The Court of Appeals opined that the purpose of the depreciation allowance under the Code was to provide a means of cost recovery, Knoxville v. Knoxville Water Co., 212 U.S. 1, 13 14, 29 S.Ct. 148, 152, 53 L.Ed. 371 (1909), and that this Court's decisions, e.g., Detroit Edison Co. v. Commissioner of Internal Revenue, 319 U.S. 98, 101, 63 S.Ct. 902, 903, 87 L.Ed.2d 1286 (1943), endorse a theory of replacement through 'a fund to restore the property.' 477 F.2d, at 691. Although tax-free replacement of a depreciating investment is one purpose of depreciation accounting, it alone does not require the result claimed by the taxpayer here. Only last Term, in United States v. Chicago, B. & Q.R. Co., 412 U.S. 401, 93 S.Ct. 2169, 37 L.Ed.2d 30 (1973), we rejected replacement as the strict and sole purpose of depreciation:
16
'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 . . . '(d)epreciation reflects the cost of an existing capital asset, not the cost of a potential replacement." Id., at 415, 93 S.Ct., at 2177.
17
Even were we to look to replacement, it is the replacement of the constructed facilities, not the equipment used to build them, with which we would be concerned. If the taxpayer now were to decide not to construct any more capital facilities with its own equipment and employees, it, in theory, would have no occasion to replace its equipment to the extent that it was consumed in prior construction.
18
Accepted accounting practice8 and established tax principles require the capitalization of the cost of acquiring a capital asset. In Woodward v. Commissioner of Internal Revenue, 397 U.S. 572, 575, 90 S.Ct. 1302, 1305, 25 L.Ed.2d 577 (1970), the Court observed: 'It has long been recognized, as a general matter, that costs incurred in the acquisition . . . of a capital asset are to be treated as capital expenditures.' This principle has obvious application to the acquisition of a capital asset by purchase, but it has been applied, as well, to the costs incurred in a taxpayer's construction of capital facilities. See, e.g., Southern Natural Gas Co. v. United States, supra; Great Northern R. Co. v. Commissioner of Internal Revenue, 40 F.2d 372 (CA8), cert. denied, 282 U.S. 855, 51 S.Ct. 31, 75 L.Ed. 757 (1930); Coors v. Commissioner, 60 T.C. 368, 398 (1973); Norfolk Shipbuilding & Drydock Corp. v. United States, 321 F.Supp. 222 (E.D.Va.1971); Producers Chemical Co. v. Commissioner, 50 T.C. 940 (1968); Brooks v. Commissioner, 50 T.C. 927, 935—936 (1968), rev'd on other grounds, 424 F.2d 116 (CA5 1970).9
19
There can be little question that other construction-related expense items, such as tools, materials, and wages paid construction workers, are to be treated as part of the cost of acquisition of a capital asset. The taxpayer does not dispute this. Of course, reasonable wages paid in the carrying on of a trade or business qualify as a deduction from gross income. § 162(a)(1) of the 1954 Code, 26 U.S.C. § 162(a)(1). But when wages are paid in connection with the construction or acquisition of a capital asset, they must be capitalized and are then entitled to be amortized over the life of the capital asset so acquired. Briarcliff Candy Corp. v. Commissioner of Internal Revenue, 475 F.2d 775, 781 (CA2 1973); Perlmutter v. Commissioner, 44 T.C. 382, 404 (1965), aff'd, 373 F.2d 45 (CA10 1967); Jaffa v. United States, 198 F.Supp. 234, 236 (N.D.Ohio 1961). See Treas.Reg. § 1.266—1(e).
20
Construction-related depreciation is not unlike expenditures for wages for construction workers. The significant fact is that the exchaustion of construction equipment does not represent the final disposition of the taxpayer's investment in that equipment; rather, the investment in the equipment is assimilated into the cost of the capital asset constructed. Construction-related depreciation on the equipment is not an expense to the taxpayer of its day-to-day business. It is, however, appropriately recognized as a part of the taxpayer's cost or investment in the capital asset. The taxpayer's own accounting procedure reflects this treatment, for on its books the construction-related depreciation was capitalized by a credit to the equipment account and a debit to the capital facility account. By the same token, this capitalization prevents the distortion of income that would otherwise occur if depreciation properly allocable to asset acquisition were deducted from gross income currently realized. See, e.g., Coors v. Commissioner, 60 T.C., at 398; Southern Natural Gas Co. v. United States, 412 F.2d, at 1265, 188 Ct.Cl., at 373—374.
21
An additional pertinent factor is that capitalization of construction-related depreciation by the taxpayer who does its own construction work maintains tax parity with the taxpayer who has its construction work done by an independent contractor. The depreciation on the contractor's equipment incurred during the performance of the job will be an element of cost charged by the contractor for his construction services, and the entire cost; of course, must be capitalized by the taxpayer having the construction work performed. The Court of Appeals' holding would lead to disparate treatment among taxpayers because it would allow the firm with sufficient resources to construct its own facilities and to obtain a current deduction, whereas another firm without such resources would be required to capitalize its entire cost including depreciation charged to it by the contractor.
22
Some, although not controlling, weight must be given to the fact that the Federal Power Commission and the Idaho Public Utilities Commission required the taxpayer to use accounting procedures that capitalized construction-related depreciation. Although agency-imposed compulsory accounting practices do not necessarily dictate tax consequences, Old Colony R. Co. v. Commissioner of Internal Revenue, 284 U.S. 552, 562, 52 S.Ct. 211, 214, 76 L.Ed. 484 (1932), they are not irrelevant and may be accorded some significance. Commissioner of Internal Revenue v. Lincoln Savings & Loan Ass'n., 403 U.S. 345, 355—356, 91 S.Ct. 1893, 1899—1900, 29 L.Ed.2d 519 (1971). The opinions in American Automobile Ass'n v. United States, 367 U.S. 687, 81 S.Ct. 1727, 6 L.Ed.2d 1109 (1961), and Schlude v. Commissioner of Internal Revenue, 372 U.S. 128, 83 S.Ct. 601, 9 L.Ed.2d 633 (1963), urged upon us by the taxpayer here, are not to the contrary. In the former case it was observed that merely because the method of accounting a taxpayer employs is in accordance with generally accepted accounting procedures, this 'is not to hold that for income tax purposes it so clearly reflects income as to be binding on the Treasury.' 367 U.S., at 693, 81 S.Ct., at 1730. See also Cincinnati, N.O. & T.P.R. Co. v. United States, 424 F.2d 563, 570, 191 Ct.Cl. 572, 583—584 (1970). Nonetheless, where a taxpayer's generally accepted method of accounting is made compulsory by the regulatory agency and that method clearly reflects income,10 it is almost presumptively controlling of federal income tax consequences.
23
The presence of § 263(a)(1) in the Code is of significance. Its literal language denies a deduction for '(a)ny amount paid out' for construction or permanent improvement of facilities. The taxpayr contends, and the Court of Appeals held, that depreciation of construction equipment represents merely a decrease in value and is not an amount 'paid out,' within the meaning of § 263(a)(1). We disagree.
24
The purpose of § 263 is to reflect the basic principle that a capital expenditure may not be deducted from current income. It serves to prevent a taxpayer from utilizing currently a deduction properly attributable, through amortization, to later tax years when the capital asset becomes income producing. The regulations state that the capital expenditures to which § 263(a) extends include the 'cost of acquisition, construction, or erection of buildings.' Treas.Reg. § 1.263(a)-2(a). This manifests an administrative understanding that for purposes of § 263(a)(1), 'amount paid out' equates with 'cost incurred.' The Internal Revenue Service for some time has taken the position that construction-related depreciation is to be capitalized. Rev.Rul. 59—380, 1959—2 C.B. 87; Rev.Rul. 55—252, 1955—1 Cum.bull. 319.
25
There is no question that the cost of the transportation equipment was 'paid out' in the same manner as the cost of supplies, materials, and other equipment, and the wages of construction workers.11 The taxpayer does not question the capitalization of these other items as elements of the cost of acquiring a capital asset. We see no reason to treat construction-related depreciation differently. In acquiring the transportation equipment, taxpayer 'paid out' the equipment's purchase price; depreciation is simply the means of allocating the payment over the various accounting periods affected. As the Tax Court stated in Brooks v. Commissioner, 50 T.C., at 935, 'depreciation—inasmuch as it represents a using up of capital—is as much an 'expenditure' as the using up of labor or other items of direct cost.'
26
Finally, the priority-ordering directive of § 161—or, for that matter, § 261 of the Code, 26 U.S.C. § 26112—requires that the capitalization provision of § 263(a) take precedence, on the facts here, over § 167(a). Section 161 provides that deductions specified in Part VI of Subchapter B of the Income Tax Subtitle of the Code are 'subject to the exceptions provided in part IX.' Part VI includes § 167 and Part IX includes § 263. The clear import of § 161 is that, with stated exceptions set forth either in § 263 itself or provided for elsewhere (as, for example, in § 404 relating to pension contributions), none of which is applicable here, an expenditure incurred in acquiring capital assets must be capitalized even when the expenditure otherwise might be deemed deductible under Part VI.
27
The Court of Appeals concluded, without reference to § 161, that § 263 did not apply to a deduction, such as that for depreciation of property used in a trade or business, allowed by the Code even though incurred in the construction of capital assets.13 We think that the court erred in espousing so absolute a rule, and it obviously overlooked the contrary direction of § 161. To the extent that reliance was placed on the congressional intent, in the evolvement of the 1954 Code, to provide for 'liberalization of depreciation,' H.R.Rep.No.1337, 83d Cong., 2d Sess., 22 (1954), that reliance is misplaced. The House Report also states that the depreciation provisions would 'give the economy added stimulus and resilience without departing from realistic standards of depreciation accounting.' Id., at 24. 1954 U.S.Code Cong. & Admin.News, p. 4049. To be sure, the 1954 Code provided for new and accelerated methods for depreciation, resulting in the greater depreciation deductions currently available. These changes, however, relate primarily to computation of depreciation. Congress certainly did not intend that provisions for accelerated depreciation should be construed as enlarging the class of depreciable assets to which § 167(a) has application or as lessening the reach of § 263(a). See Note, 1973 Duke L.J. 1386.
28
We hold that the equipment depreciation allocable to taxpayer's construction of capital facilities is to be capitalized.
29
The judgment of the Court of Appeals is reversed.
30
It is so ordered.
31
Judgment of Court of Appeals reversed.
32
Mr. Justice DOUGLAS, dissenting.
33
This Court has, to many, seemed particularly ill-equipped to resolve income tax disputes between the Commissioner and the taxpayers. The reasons are (1) that the field has become increasingly technical and complicated due to the expansions of the Code and the proliferation of decisions, and (2) that we seldom see enough of them to develop any expertise in the area. Indeed, we are called upon mostly to resolve conflicts between the circuits which more providently should go to the standing committee of the Congress for resolution.
34
That was the sentiment behind Dobson v. Commissioner of Internal Revenue, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248, written by Mr. Justice Jackson and enthusiastically promoted by Mr. Justice Black, Mr. Justice Frankfurter, and myself. Dobson, save for egregious error and constitutional questions, would have left picayune cases such as the present one largely to the Tax Court, whose expertise is well recognized. But Dobson was short-lived, as Congress made clear its purpose that we were to continue on our leaden-footed pursuit of law and justice in this field. Internal Revenue Code of 1939, § 1141, as amended, 62 Stat. 991.
35
Now that we are on our own I disagree with the Court in disallowing the present claim for depreciation. A company truck has, let us say, a life of 10 years. If it cost $10,000, one would expect that 'a reasonable allowance for the exhaustion, wear and tear' of the truck would be $1,000 a year within the meaning of 26 U.S.C. § 167(a). That was the provision in the House Report of the 1954 Code when it said that it provided for 'a liberalization of depreciation with respect to both the estimate of useful life of property and the method of allocating the depreciable cost over the years of service.'1 H.R.Rep.No.1337, 83d Cong., 2d Sess., 22.
36
Not so, says the Government. Since the truck was used to build a plant for the taxpayer and the plant has a useful life of 40 years, a lower rate of depreciation must be used—a rate that would spread out the life of the truck for 40 years even though it would not last more than 10. Section 167 provides for a depreciation deduction with respect to property 'used in the (taxpayer's) trade or business' or 'held for the production of income' by the taxpayer. There is no intimation that § 167(a) is not satisfied. The argument is rested upon § 161 which allows the deductions specified in § 167(a) 'subject to the exceptions' in § 263(a) which provides:
37
'No deduction shall be allowed for—
38
'(1) Any amount paid out for new buildings or for permanent improvements or for betterments made to increase the value of any property or estate . . ..'
39
I agree with the Court of Appeals that depreciation claimed on a truck whose useful life is 10 years is not an amount 'paid out' within the meaning of § 263(a)(1). If 'payment' in the setting of § 263(a)(1) is to be read as including depreciation, Congress—not the courts—should make the decision.
40
I suspect that if the life of the vehicle were 40 years and the life of the building were 10 years the Internal Revenue Service would be here arguing persuasively that depreciation of the vehicle should be taken over a 40-year period. That is not to impugn the integrity of the IRS. It is only an illustration of the capricious character of how law is construed to get from the taxpayer the greatest possible return that is permissible under the Code.
41
The opinion of the Court of Appeals written by Judge Trask and concurred in by Judges Choy and McGovern states my view of the law.
42
Depreciation on an automobile is not allowed as a charitable deduction, Orr v. United States, 343 F.2d 553; Mitchell v. Commissioner, 42 T.C. 953, 973—974, since it is not a 'payment' within the meaning of § 170(a)(1). Likewise depreciation on an automobile used to transport the taxpayer's son to a doctor is not deductible as a medical expense under § 213 because it is not an expense 'paid' within the meaning of the section. Gordon v. Commissioner, 37 T.C. 986; Calafut v. Commissioner, 23 T.C.M. 1431.2
43
The IRS, however, has ruled that depreciation on construction equipment owned by a taxpayer and used in its construction work must be capitalized.3 That Revenue Ruling, as the Court of Appeals held, is a legal opinion within the agency, not a Regulation or Treasury decision. It is without force when it conflicts with an Act of Congress.4 See Bartels v. Birmingham, 332 U.S. 126, 132, 67 S.Ct. 1547, 91 L.Ed. 1947.
44
If the test under § 263(a)(1) were the cost of capital improvements, the result would be different. But, as noted, the test is 'any amount paid out,' which certainly does not describe depreciation deductions unless words are to acquire esoteric meanings merely to accommodate the IRS. Congress is the lawmaker; and taking the law from it, we should affirm the Court of Appeals.
1
'§ 167. Depreciation.
'(a) General rule.
'There shall be 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, or
'(2) of property held for the production of income.'
2
'§ 263. Capital expenditures.
'(a) General rule.
'No deduction shall be allowed for—
'(1) Any amount paid out for new buildings or for permanent improvements or betterments made to increase the value of any property or estate.'
3
For a period near the end of World War II, the taxpayer constructed all its capital improvements. At other times, outside contractors have performed part of this work. At the time of the trial of this tax case, the taxpayer had 140 employees engaged in new construction; it has had as many as 300 employees so engaged.
4
For 1962 and 1963 the taxpayer's gross construction additions were $8,235,440.22 and $5,988,139.56, respectively. Of these amounts, the taxpayer itself constructed $7,139,940.72 and $5,642,342.79. The self-construction portion, therefore, obviously was a substantial part of the gross. The equipment depreciation for those years, to the extent allocated to use in construction and capitalized on the taxpayer's books, amounted to $150,047.42 and $130,523.99, respectively. These were the depreciation amounts deducted for income tax purposes, the major portions of which are presently at issue.
5
For purposes of the issue here presented, the key phrase of § 167(a)(1) is 'property used in the trade or business.' Construction of this phrase in the present context has been infrequent and not consistent. In Great Northern R. Co. v. Commissioner of Internal Revenue, 40 F.2d 372 (CA8), cert. denied, 282 U.S. 855, 51 S.Ct. 31, 75 L.Ed. 757 (1930), the court held that where a railroad transported men and equipment to a construction site, the depreciation of the train attributable to the construction work was to
be capitalized. No consideration was given to whether the claimed deduction was available for property used in the taxpayer's trade or business. See also Gulf, M. & N.R. Co. v. Commissioner, 22 B.T.A. 233, 245—247 (1931), aff'd as to other issues, 63 App.D.C. 244, 71 F.2d 953 (1934), aff'd, 293 U.S. 295, 55 S.Ct. 161, 79 L.Ed. 372 (1934); Missouri Pacific R. Co. v. Commissioner, 22 B.T.A. 267, 286—287 (1931); Northern Pacific R. Co. v. Helvering, 83 F.2d 508, 513 (CA8 1936).
In a subsequent case, Great Northern R. Co. v. Commissioner, 30 B.T.A. 691 (1934), the Board of Tax Appeals reached the contrary result on identical facts. The Board held that the train equipment, even though used in part for construction of branch lines of the railroad, was used in a trade or business, and that this satisfied the requirements of the statute. The depreciation, therefore, was held deductible. Id., at 708. This appears to have been the prevailing view until the issuance of Rev.Rul. 59—380, 1959—2 Cum.Bull. 87, where it was stated:
'In the instant case the capital improvements constructed constitute property to be used in the trade or business or property held for the production of income. However, the building equipment used in the construction cannot be considered as property used in the regular trade or business of the taxpayer.' Id. at 88.
'Rev.Rul. 59—380 was in part the basis for the holding of the Court of Claims in Southern Natural Gas Co. v. United States, 412 F.2d 1222, 1268, 188 Ct.Cl. 302, 378—379 (1969). The Court of Claims rejected the "a trade or business" approach in favor of the rule that, to be deductible from current income, depreciation must be of property used in the trade or business of the taxpayer. Equipment, to the extent used by the taxpayer in construction of additional facilities, was not used in the trade or business of the natural gas company. Thus, no depreciation deduction was allowable and the contested amount of depreciation was to be capitalized.
In the instant case, the Court of Appeals concluded that transportation equipment used by the taxpayer to construct its own capital improvements was used in the trade or business of the taxpayer:
'The continuity and regularity of taxpayer's construction activities, the number of employees engaged in construction and the amounts
expended on construction all point to the conclusion that construction of facilities is a major aspect of the taxpayer's trade or business. These activities are auxiliary operations incident to the taxpayer's principal trade or business of producing, transmitting, distributing and selling electrical energy within the meaning of section 167.' 477 F.2d, at 696.
Since the Commissioner appears to have conceded the literal application of § 167(a) to Idaho Power's equipment depreciation, we need not reach the issue whether the Court of Appeals has given the phrase 'used in the trade or business' a proper construction. For purposes of this case, we assume, without deciding, that § 167(a) does have a literal application to the depreciation of the taxpayer's transportation equipment used in the construction of its capital improvements.
6
'§ 161. Allowance of deductions.
'In computing taxable income under section 63(a), there shall be allowed as deductions the items specified in this part, subject to the exceptions provided in part IX (sec. 261 and following, relating to items not deductible).'
7
The Committee on Terminology of the American Institute of Certified Public Accountants has discussed various definitions of depreciation and concluded that:
'These definitions view depreciation, broadly speaking, as describing not downward changes of value regardless of their causes but a money cost incident to exhaustion of usefulness. The term is sometimes applied to the exhaustion itself, but the committee considers it desirable to emphasize the cost concept as the primary if not the sole accounting meaning of the term: thus, depreciation means the cost of such exhaustion, as wages means the cost of labor.' 2 APB Accounting Principles, Accounting Terminology Bulletin No. 1—Review and Resume 48, p. 9512 (1973) (emphasis in original).
8
The general proposition that good accounting practice requires capitalization of the cost of acquiring a capital asset is not seriously open to question. The Commissioner urges, however, that accounting methods as a rule require the treatment of construction-related depreciation of equipment as a capital cost of the facility constructed. Indeed, there is accounting authority for this. See, e.g., W. Paton, Asset Accounting 188, 192 193 (1952); H. Finney & H. Miller, Principles of Accounting Introductory 246—247 (6th ed. 1963) (depreciation as an expense should be matched with the production of income); W. Paton, Accountants' Handbook 652 (3d ed. 1943); Note, 1973 Duke L.J. 1377, 1384; Note, 52 N.C.L.Rev. 684, 692 (1974).
9
Except for the Court of Appeals in the present case, the courts consistently have upheld the position of the Commissioner that construction-related depreciation is to be capitalized. Great Northern R. Co. v. Commissioner, 30 B.T.A. 691 (1934), upon which the Court of Appeals relied, is not to the contrary. In that case the Board concluded that construction-related depreciation was deductible under the Revenue Act of 1928, § 23(k), 45 Stat. 800 (the provision corresponding to § 167(a)(1) of the 1954 Code). The Commissioner in that case, however, had not argued for the capitalization of construction-related depreciation. 30 B.T.A., at 708.
10
Section 446 of the Code, 26 U.S.C. § 446, reads in part as follows:
§ 446. General rule for methods of accounting.
'(a) General rule.
'Taxable income shall be computed under the method of accounting on the basis of which the taxpayer regularly computes his income in keeping his books.
'(b) Exceptions.
'If no method of accounting has been regularly used by the taxpayer, or if the method used does not clearly reflect income, the computation of taxable income shall be made under such method as, in the opinion of the Secretary or his delegate, does clearly reflect income.'
11
The taxpayer contends that depreciation has been held not to be an expenditure or payment for purposes of a charitable contribution under § 170 of the Code, 26 U.S.C. § 170, e.g., Orr v. United States, 343 F.2d 553 (CA5 1965); Mitchell v. Commissioner, 42 T.C. 953, 973—974 (1964), or for purposes of a medical-expense deduction under § 213, 26 U.S.C. § 213, e.g., Gordon v. Commissioner, 37 T.C. 986 (1962). Section 263 is concerned, however, with the capital nature of an expenditure and not with its timing, as are the phrases 'payment . . . within the taxable year' or 'paid during the taxable year.' respectively used in §§ 170 and 213. The treatment of depreciation under those sections has no relevance to the issue of capitalization here. See, e.g., Producers Chemical Co. v. Commissioner, 50 T.C. 940, 959 (1968)
12
'§ 261. General rule for disallowance of deductions.
'In computing taxable income no deduction shall in any case be allowed in respect of the items specified in this part.'
13
The Court of Appeals relied on All-Steel Equipment, Inc. v. Commissioner, 54 T.C. 1749 (1970), rev'd in part, 467 F.2d 1184 (CA7 1972), in holding that § 263 was inapplicable to deductions specifically allowed by the Code. 477 F.2d, at 693. In All-Steel, the Tax Court faced the question whether taxes, losses, and research and experimental expenses incurred in manufacturing inventory items were currently deductible and did not have to be capitalized. The Tax Court held that these items were deductible, and that the these items were deductible, and that clearly reflect income. The Court of Appeals, in contrast, held that certain repair expenses incurred in producing inventory could be deducted 'only in the taxable year in which the manufactured goods to which the repairs relate are sold.' 467 F.2d, at 1186. We need not decide this issue, but we note that § 263(a)(1)(B) excepts research and experimental expenditures from capitalization treatment, see Snow v. Commissioner of Internal Revenue, 416 U.S. 500, 94 S.Ct. 1876, 40 L.Ed.2d 336 (1974), and that § 266 of the Code, 26 U.S.C. § 266, creates a further exception by providing taxpayers with an election between capitalization and deduction of certain taxes and carrying charges. The Tax Court, in discussing deductions for taxes, losses, and research and experimental expenditures, observed that 'deductions expressly granted by statute are not to be deferred even though they relate to inventory or capital items.' 54 T.C., at 1759. This statement, when out of context, is subject to overbroad interpretation and, as is evident from our holding in the present case, has decided limitations in application.
1
The Committee indicated that 'reasonable' depreciation allowances include the straightline method, the declining-balance method, or any other method that on an annual basis does not exceed the allowances on the declining-balance method. H.R.Rep.No.1337, 83d Cong., 2d Sess., 22—23.
The purpose of providing more liberal depreciation allowances was explicitly stated:
'More liberal depreciation allowances are anticipated to have far-reaching economic effects. The incentives resulting from the changes are well timed to help maintain the present high level of investment in plant and equipment. The acceleration in the speed of the tax-free recovery of costs is of critical importance in the decision of management to incur risk. The faster tax writeoff would increase available working capital and materially aid growing businesses in the financing of their expansion. For all segments of the American economy, liberalized depreciation policies should assist modernization and expansion of industrial capacity, with resulting economic growth, increased production and a higher standard of living.
'Small business and farmers particularly have a vital stake in a more liberal and constructive depreciation policy. They are especially dependent on their current earnings or short-term loans to obtain funds for expansion. The faster recovery of capital investment provided by this bill will permit them to secure short-term loans which would otherwise not be available.' Id., at 24, 1954 U.S.Code Cong. & Admin.News, p. 4048.
2
Where Congress has intended that depreciation be treated as an expenditure it has stated so explicitly, e.g., § 615(a) of the Internal Revenue Code.
3
Rev.Rul. 59—380, 1959—2 Cum.Bull. 87, 88: '(D)epreciation sustained on construction equipment owned by a taxpayer and used in the erection of capital improvements for its own use is not an allowable deduction, but shall be added to and made a part of the cost of the capital improvements. So much thereof as is applicable to the cost of depreciable capital improvements is recoverable through deductions for depreciation over the useful life of such capital improvements.
'In the instant case the capital improvements constructed constitute property to be used in the trade or business or property held for the production of income. However, the building equipment used in the construction cannot be considered as property used in the regular trade or business of the taxpayer.'
4
'(D)epartmental rulings not promulgated by the Secretary are of little aid in interpreting a tax statute . . .,' Biddle v. Commissioner of Internal Revenue, 302 U.S. 573, 582, 58 S.Ct. 379, 383, 82 L.Ed. 431. Indeed, each issue of the Internal Revenue Bulletin warns that 'Revenue Rulings reported in the Bulletin do not have the force and effect of Treasury Department Regulations. . . .'
| 1112
|
417 U.S. 790
94 S.Ct. 2737
41 L.Ed.2d 477
FLORIDA POWER & LIGHT CO., Petitioner,v.INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 641, et al. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, et al.
Nos. 73—556, 73—795.
Argued April 24, 1974.
Decided June 24, 1974.
Syllabus
A union does not commit an unfair labor practice under § 8(b)(1)(B) of the National Labor Relations Act (NLRA) when it disciplines supervisor-members for crossing a picket line and performing rank-and-file struck work during a lawful economic strike against the employer. Pp. 798—813.
(a) Both the language and legislative history of § 8(b)(1)(B) reflect a clear congressional concern with protecting employers in the selection of representatives to engage in two particular and explicitly stated activities, viz., collective bargaining and adjustment of grievances. Therefore, a union's discipline of supervisor-members can violate § 8(b)(1)(B) only when it may adversely affect the supervisors' conduct in performing the duties of, and acting in the capacity of, grievance adjusters or collective bargainers, in neither of which capacities the supervisors involved in these cases were acting when they crossed the picket lines to perform rank-and-file work. Pp. 802—805.
(b) The concern that to permit a union to discipline supervisor-members for performing rank-and-file work during an economic strike will deprive the employer of those supervisors' full loyalty is a problem that Congress addressed, not through § 8(b)(1)(B), but through §§ 2(3), 2(11), and 14(a) of the NLRA, which, while permitting supervisors to become union members, assure the employer of his supervisors' loyalty by reserving in him the rights to refuse to hire union members as supervisors, to discharge supervisors for involvement in union activities or union membership, and to refuse to engage in collective bargaining with supervisors. Pp. 805—813.
159 U.S.App.D.C. 272, 487 F.2d 1143, affirmed.
Norton J. Come, Washington, D.C., for NLRB.
Ray C. Muller, Miami, Fla., for Fla. Power & Light Co.
Laurence J. Cohen, Washington, D.C., for respondents.
Laurence Gold, Washington, D.C., for AFL—CIO, as amicus curiae, by special leave of Court.
Mr. Justice STEWART delivered the opinion of the Court.
1
Section 8(b)(1)(B) of the National Labor Relations Act, 61 Stat. 141, 29 U.S.C. § 158(b)(1)(B), makes it an unfair labor practice for a union 'to restrain or coerce . . . an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances.' The respondent unions in these consolidated cases called economic strikes against the employer companies. During the strikes, supervisory employees of the companies, some of whom were members of bargaining units and some of whom were not, but all of whom were union members, crossed the picket lines and performed rank-and-file struck work, i.e., work normally performed by the nonsupervisory employees then on strike. The unions later disciplined these supervisors for so doing. The question to be decided is whether the unions committed unfair labor practices under § 8(b)(1)(B) when they disciplined their supervisor-members for crossing the picket lines and performing rank-and-file struck work during lawful economic strikes against the companies.
2
* Since 1909, Local 134, International Brotherhood of Electrical Workers, AFL—CIO, one of the respondents in No. 73—795, has been recognized by the Illinois Bell Telephone Co. (Illinois Bell) and its predecessors as the exclusive bargaining representative for both rank-and-file and certain supervisory personnel, including general foremen, P.B.X. installation foremen, and building cable foremen. Rather than exercise its right to refuse to hire union members as supervisors, the company agreed to the inclusion of a union security clause in the collective-bargaining agreement which required that these supervisors, like the rank-and-file employees, maintain membership in Local 134. In addition, the bargaining agreement in effect at the time of this dispute contained provisions for the conditions of employment and certain wages of these foremen.
3
Other higher ranking supervisors, however, were neither represented by the union for collective-bargaining purposes not covered by the agreement, although they were permitted to maintain their union membership.1 By virtue of that membership, these supervisors, like those within the bargaining units, received substantial benefits, including participation in the International's pension and death-benefit plans and in group insurance and old-age-benefit plans sponsored by Local 134.
4
Under the International's constitution, all union members could be penalized for committing any of 23 enumerated offenses, including '(w)orking in the interest of any organization or cause which is detrimental to, or opposed to, the I.B.E.W.,' App. 76, and '(w)orking for any individual or company declared in difficulty with a (local union) or the I.B.E.W.' Id., at 77.
5
Between May 8, 1968, and September 20, 1968, Local 134 engaged in an economic strike against the company. At the inception of the strike, Illinois Bell informed its supervisory personnel that it would like to have them come to work during the stoppage but that the decision whether or not to do so would be left to each individual, and that those who chose not to work would not be penalized. Local 134, on the other hand, warned its supervisor-members that they would be subject to disciplinary action if they performed rank-and-file work during the strike. Some of the supervisor-members crossed the union picket lines to perform rank-and-file struck work. Local 134 thereupon initiated disciplinary proceedings against these supervisors, and those found guilty were fined $500 each.2 Charges were then filed with the NLRB by the Bell Supervisors Protective Association, an association formed by five supervisors to obtain counsel for and otherwise protect the supervisors who worked during the strike. The Board, one member dissenting held that in thus disciplining the supervisory personnel, the union had violated § 8(b)(1)(B) of the Act,3 in accord with its decision of the same day in Local 2150, IBEW (Wisconsin Electric Power Co.), 192 N.L.R.B. 77 (1971), enforced, 486 F.2d 602 (CA7 1973), cert. pending No. 73—877, holding:
6
Accordingly, the Board ordered the unions to rescind the fines, to expunge all records thereof, and to reimburse the supervisors for any portions of the fines paid.
7
The Florida Power & Light Co., (Florida Power), the petitioner in No. 73—556, has maintained a collective-bargaining agreement with the International
8
'The Union's fining of the supervisors who were acting in the Employer's interest in performing the struck work severely jeopardized the relationship between the Employer and its supervisors.
9
'The purpose of Section 8(b)(1)(B) is to assure to the employer that its selected collective-bargaining representatives will be completely faithful to its desires. This cannot be achieved if the union has an effective method, union disciplinary action, by which it can pressure such representatives to deviate from the interests of the employer. . . .' 192 N.L.R.B., at 78. Brotherhood of Electrical Workers, AFL—CIO and Locals 641, 622, 759, 820, and 1263, represented by the System Council U—4,4 since 1953. That agreement does not require employees to become union members as a condition of employment, but many of its supervisory personnel have in fact joined the union. The company has elected to recognize the union as the exclusive bargaining representative of these supervisors, and certain aspects of their wages and conditions of employment are provided for in the agreement.5 In addition, othr higher supervisory personnel not covered by the agreement were allowed to maintain union membership,6 and, although not represented by the union for collective-bargaining purposes, received substantial benefits as a result of their union membership, including pension, disability, and death benefits under the terms of the International's constitution.
10
Since the same International union was involved in both No. 73—556 and No. 73—795, the union members of Florida Power bore the same obligations under the International's constitution as did the union members of Illinois Bell. See supra, at 793. With respect to union discipline of supervisor members, however, the Florida Power collective-bargaining agreement itself provided:
11
'It is further agreed that employees in (supervisory) classifications have definite management responsibilities and are the direct representatives of the Company at their level of work. Employees in these classifications and any others in a supervisory capacity are not to be jacked up or disciplined through Union machinery for the acts they may have performed as supervisors in the Company's interest. The Union and the Company do not expect or intend for Union members to interfere with the proper and legitimate performance of the Foreman's management responsibilities appropriate to their classification. . . .' App. 47.
12
From October 22, 1969, through December 28, 1969, the International union and its locals engaged in an economic strike against Florida Power. During the strike, many of the supervisors who were union members crossed the picket lines maintained at nearly all the company's operation facilities, and performed rank-and-file work normally performed by the striking nonsupervisory employees. Following the strike, the union brought charges against those supervisors covered by the bargaining agreement as well as those not covered, alleging violations of the International union constitution. Those found guilty of crossing the picket lines to perform rank-and-file work, as opposed to their usual supervisory functions, received fines ranging from $100 to $6,000 and most were expelled from the union, thereby terminating their right to pension, disability, and death benefits. Upon charges filed by Florida Power, the Board, in reliance upon its prior decisions in Wisconsin Electric and Illinois Bell, held that the penalties imposed 'struck at the loyalty an employer should be able to expect from its representatives for the adjustment of grievances and therefore restrained and coerced employers in their selection of such representatives,' in violation of § 8(b)(1)(B) of the Act. Accordingly, the Board ordered the union to cease and desist, to rescind and refund all fines, to expunge all records of the disciplinary proceedings, and to restore those disciplined to full union membership and benefits.7
13
The Illinois Bell case was first heard by a panel of the Court of Appeals for the District of Columbia Circuit, 159 U.S.App.D.C. 242, 487 F.2d 1113 (1973), and then on rehearing was consolidated with Florida Power and considered en banc. In a 5—4 decision, the court held that '(s)ection 8(b)(1)(B) cannot reasonably be read to prohibit discipline of union members supervisors though they be—for performance of rank-and-file struck work,' 159 U.S.App.D.C. 272, 300, 487 F.2d 1143, 1171 (1973), and accordingly refused to enforce the Board's orders.8 Section 8(b)(1)(B), the court held, was intended to proscribe only union efforts to discipline supervisors for their actions in representing management in collective bargaining and the adjustment of grievances. It was the court's views that when a supervisor forsakes his supervisory role to do work normally performed by nonsupervisory employees, he no longer acts as a managerial representative and hence 'no longer merits any immunity from discipline.' Id., at 286, 487 F.2d, at 1157. We granted certiorari, 414 U.S. 1156, 94 S.Ct. 913, 39 L.Ed.2d 108, to consider an important and novel question of federal labor law.
II
14
Section 8(b) of the National Labor Relations Act provides in pertinent part:
15
'It shall be an unfair labor practice for a labor organization or its agents—(1) to restrain or coerce . . . (B) an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances.'
16
The basic import of this provision was explained in the Senate Report as follows:
17
'(A) union or its responsible agents could not, without violating the law, coerce an employer into joining or resigning from an employer association which negotiates labor contracts on behalf of its members; also, this subsection would not permit a union to dictate who shall represent an employer in the settlement of employee grievances, or to compel the removal of a personnel director or supervisor who has been delegated the function of settling grievances.'9
18
For more than 20 years after § 8(b)(1)(B) was enacted in 1947, the Board confined its application to situations clearly falling within the metes and bounds of the statutory language. Thus, in Los Angeles Cloak Joint Board ILGWU (Helen Rose Co.), 127 N.L.R.B. 1543 (1960), the Board held that § 8(b)(1)(B) barred a union from picketing a company in an attempt to force the employer to dismiss an industrial relations consultant thought to be hostile to the union. See also Local 986, Miscellaneous Warehousemen, Drivers & Helpers (Tak-Trak, Inc.), 145 N.L.R.B. 1511 (1964); Southern California Pipe Trades District Council No. 16 (Paddock Pools of California, Inc.), 120 N.L.R.B. 249 (1958). Similarly, the Board held that § 8(b)(1)(B) was violated by union attempts to force employers to join or resign from multi-employer bargaining associations, United Slate, Tile & Composition Roofers, Local 36 (Roofing Contractors Assn. of Southern California), 172 N.L.R.B. 2248 (1968); Orange Belt District Council of Painters No. 48 (Painting & Decorating Contractors of America, Inc.), 152 N.L.R.B. 1136 (1965); General Teamsters Local Union No. 324 (Cascade Employers Assn., Inc.), 127 N.L.R.B. 488 (1960), as well as by attempts to compel employers to select foremen from the ranks of union members, International Typographical Union & Baltimore Typographical Union No. 12 (Graphic Arts League), 87 N.L.R.B. 1215 (1949); International Typographical Union (American Newspaper Publishers Assn.), 86 N.L.R.B. 951 (1949), enforced, 193 F.2d 782 (CA7 1951); International Typographical Union (Haverhill Gazette Co.), 123 N.L.R.B. 806 (1959), enforced, 278 F.2d 6 (CA1 1960), aff'd by an equally divided Court, 365 U.S. 705, 81 S.Ct. 855, 6 L.Ed.2d 36 (1961).10
19
In 1968, however, the Board significantly expanded the reach of § 8(b)(1)(B), with its decision in San Francisco-Oakland Mailers' Union No. 18 (Northwest Publications, Inc.), 172 N.L.R.B. 2173. In that case, three union-member foremen were expelled from the union for allegedly assigning bargaining unit work in violation of the collective-bargaining agreement. Despite the absence of union pressure or coercion aimed at securing the replacement of the foremen, the Board held that the union had violated § 8(b)(1)(B) by seeking to influence the manner in which the foremen interpreted the contract:
20
'That Respondent may have sought the substitution of attitudes rather than persons, and may have exerted its pressures upon the Charging Party by indirect rather than direct means, cannot alter the ultimate fact that pressure was exerted here for the purpose of interfering with the Charging Party's control over its representatives. Realistically, the Employer would have to replace its foremen or face de facto nonrepresentation by them.' 172 N.L.R.B. 2173.
21
Subsequent Board decisions extended § 8(b)(1)(B) to proscribe union discipline of management representatives both for the manner in which they performed their collective-bargaining and grievance-adjusting functions, and for the manner in which they performed other supervisory functions if those representatives also in fact possessed authority to bargain collectively or to adjust grievances. See Detroit Newspaper Printing Pressmen's Union 13, 192 N.L.R.B. 106 (1971); Meat Cutters Union Local 81, 185 N.L.R.B. 884 (1970), enforced, 147 U.S.App.D.C. 375, 458 F.2d 794 (1972); Houston Typographical Union 87, 182 N.L.R.B. 592 (1970); Dallas Mailers Union Local 143 (Dow Jones Co., Inc.), 181 N.L.R.B. 286 (1970), enforced, 144 U.S.App.D.C. 254, 445 F.2d 730 (1971); Sheet Metal Workers' International Assn., Local Union 49 (General Metal Products, Inc.), 178 N.L.R.B. 139 (1969), enforced, 430 F.2d 1348 (C.A.10 1970); New Mexico District Council of Carpenters & Joiners of America (A. S. Horner, Inc.), 178 N.L.R.B. 797 and 177 N.L.R.B. 500 (1969), both enforced, 454 F.2d 1116 (CA10 1972); Toledo Locals Nos. 15—P & 272, Lithographers & Photoengravers International (Toledo Blade Co., Inc.), 175 N.L.R.B. 1072 (1969), enforced, 437 F.2d 55 (CA6 1971).11
22
These decisions reflected a further evolution of the Oakland Mailers doctrine. In Oakland Mailers, the union had disciplined its supervisor-members for an alleged misinterpretation or misapplication of the collective-bargaining agreement, and the Board had reasoned that the natural and foreseeable effect of such discipline was that in interpreting the agreement in the future, the supervisor would be reluctant to take a position adverse to that of the union. In the subsequent cases, however, the Board held that the same coercive effect was likely to arise from the disciplining of a supervisor whenever he was engaged in management or supervisory activities, even though his collective-bargaining or grievance-adjustment duties were not involved. Through the course of these decisions, § 8(b)(1)(B) thus began to evolve in the view of the Board and the courts 'as a general prohibition of a union's disciplining supervisor-members for their conduct in the course of representing the interests of their employers.' Toledo Locals Nos. 15—P & 272, Lithographers & Photoengravers International, 175 N.L.R.B., at 1080, or for acts 'performed in the course of (their) management duties,' Meat Cutters Union Local 81 v. NLRB, 147 U.S.App.D.C., at 377, 458 F.2d, at 796.12
23
In the present cases, the Board has extended that doctrine to hold that § 8(b) (1)(B) forbids union discipline of supervisors for performance of rank-and-file work on the theory that the performance of such work during a strike is an activity furthering management's interests.13 We agree with the Court of Appeals that § 8(b)(1)(B) cannot be so broadly read. Both the language and the legislative history of § 8(b)(1)(B) reflect a clearly focused congressional concern with the protection of employers in the selection of representatives to engage in two particular and explicitly stated activities, namely collective bargaining and the adjustment of grievances. By its terms, the statute proscribes only union restraint or coercion of an employer 'in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances,' and the legislative history makes clear that in enacting the provision Congress was exclusively concerned with union attempts to dictate to employers who would represent them in collective bargaining and grievance adjustment.
24
The specific concern of Congress was to prevent unions from trying to force employers into or out of multi-employer bargaining units.14 As Senator Taft, cosponsor of the legislation, explained:
25
'Under this provision it would be impossible for a union to say to a company, 'We will not bargain with you unless you appoint your national employers' association as your agent so that we can bargain nationally.' Under the bill the employer has a right to say, 'No, I will not join in national bargaining. Here is my representative, and this is the man you have to deal with.' I believe the provision is a necessary one, and one which will accomplish substantially wise purposes.' 93 Cong.Rec. 3837.
26
That the legislative creation of this unfair labor practice was in no sense intended to cut the broad swath attributed to it by the Board in the present cases is pointed up by the further observation of Senator Taft:
27
'This unfair labor practice referred to is not perhaps of tremendous importance, but employees cannot say to their employer, 'we do not like Mr. X, we will not meet Mr. X. You have to send us Mr. Y.' That has been done. It would prevent their saying to the employer, 'You have to fire Foreman Jones. We do not like Foreman Jones, and therefore you will have to fire him, or we will not go to work." 93 Cong.Rec. 3837.15
28
Nowhere in the legislative history is there to be found any implication that Congress sought to extend protection to the employer from union restraint or coercion when engaged in any activity other than the selection of its representatives for the purposes of collective bargaining and grievance adjustment. The conclusion is thus inescapable that a union's discipline of one of its members who is a supervisory employee can constitute a violation of § 8(b)(1)(B) only when that discipline may adversely affect the supervisor's conduct in performing the duties of, and acting in his capacity as, grievance adjuster or collective bargainer on behalf of the employer.
29
We may assume without deciding that the Board's Oakland Mailers decision fell within the outer limits of this test, but its decisions in the present cases clearly do not. For it is certain that these supervisors were not engaged in collective bargaining or grievance adjustment, or in any activities related thereto, when they crossed union picket lines during an economic strike to engage in rank-and-file struck work.16
III
30
It is strenuously asserted, however, that to permit a union to discipline supervisor-members for performing rank-and-file work during an economic strike will deprive the employer of the full loyalty of those supervisors. Indeed, it is precisely that concern that is reflected in these and other recent decisions of the Board holding that the statutory language 'restrain or coerce . . . an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances' is not confined to situations in which the union's object is to force a change in the identity of the employer's representatives, but may properly be read to encompass any situation in which the union's actions are likely to deprive the employer of the undivided loyalty of his supervisory employees. As the Board stated in Wisconsin Electric:
31
'During the strike of the Union, the Employer clearly considered its supervisors among those it could depend on during this period. The Union's finding of the supervisors who were acting in the Employer's interest in performing the struck work severely jeopardized the relationship between the Employer and its supervisors. Thus, the fines, if found to be lawful, would now permit the Union to drive a wedge between a supervisor and the Employer, thus interfering with the performance of the duties the Employer had a right to expect the supervisor to perform. The Employer could no longer count on the complete and undivided loyalty of those it had selected to act as its collective-bargaining agents or to act for it in adjusting grievances. Moreover, such fines clearly interfere with the Employer's control over its own representatives.
32
'The purpose of Section 8(b)(1)(B) is to assure to the employer that its selected collective-bargaining representatives will be completely faithful to its desires. This cannot be achieved if the union has an effective method, union disciplinary action, by which it can pressure such representatives to deviate from the interests of the employer.' 192 N.L.R.B., at 78.
33
The Board in the present cases echoes this view in arguing that 'where a supervisor is disciplined by the union for performing other supervisory of management functions, the likely effect of such discipline is to make him subservient to the union's wishes when he performs those functions in the future. Thus, even if the effect of this discipline did not carry over to the performance of the supervisor's grievance adjustment or collective bargaining functions, the result would be to deprive the employer of the full allegiance of, and control over, a representative he has selected for grievance adjustment or collective bargaining purposes.' Brief for Petitioner in No. 73 795, p. 34.
34
The concern expressed in this argument is a very real one, but the problem is one that Congress addressed, not through § 8(b)(1)(B), but through a completely different legislative route. Specifically, Congress in 1947 amended the definition of 'employee' in § 2(3), 29 U.S.C. § 152(3), to exclude those denominated supervisors under § 2(11), 29 U.S.C. § 152(11), thereby excluding them from the coverage of the Act.17 See NLRB v. Bell Aerospace Co., 416 U.S. 267, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974). Further, Congress enacted § 14(a), 29 U.S.C. § 164(a), explicitly providing:
35
'Nothing herein shall prohibit any individual employed as a supervisor from becoming or remaining a member of a labor organization, but no employer subject to this subchapter shall be compelled to deem individuals defined herein as supervisors as employees for the purpose of any law, either national or local, relating to collective bargaining.'
36
Thus, while supervisors are permitted to become union members, Congress sought to assure the employer of the loyalty of his supervisors by reserving in him the right to refuse to hire union members as supervisors, see Carpenters District Council of Milwaukee County v. NLRB, 107 U.S.App.D.C. 55, 274 F.2d 564 (1959); A. H. Bull S.S. Co. v. National Marine Engineers' Beneficial Assn., 250 F.2d 332 (CA2 1957), the right to discharge such supervisors because of their involvement in union activities or union membership, see Beasley v. Food Fair of North Carolina, Inc., 416 U.S. 653, 94 S.Ct. 2023, 40 L.Ed.2d 443 (1974); see also Oil City Brass Works v. NLRB, 357 F.2d 466 (CA5 1966); NLRB v. Fullerton Publishing Co., 283 F.2d 545 (CA9 1960); NLRB v. Griggs Equipment, Inc., 307 F.2d 275 (CA5 1962); NLRB v. Edward G. Budd Mfg. Co., 169 F.2d 571 (CA6 1948), cert. denied, 335 U.S. 908, 69 S.Ct. 411, 93 L.Ed. 441 (1949),18 and the right to refuse to engage in collective bargaining with them, see L. A. Young Spring & Wire Corp. v. NLRB, 82 U.S.App.D.C. 327, 163 F.2d 905 (1947), cert. denied, 333 U.S. 837, 68 S.Ct. 607, 92 L.Ed. 1121 (1948).
37
The legislative history of §§ 2(3) and 14(a) of the Act clearly indicates that those provisions were enacted in response to the decision in Packard Motor Car Co. v. NLRB, 330 U.S. 485, 67 S.Ct. 789, 91 L.Ed. 1040 (1947), in which this Court upheld the Board's finding that the statutory definition of 'employee' included foremen, and that they were therefore entitled to the coverage of the Act in the absence of a decision by Congress to exclude them.19 In recommending passage of this legislation, the Senate Report noted:
38
'It is natural to expect that unless this Congress takes action, management will be deprived of the undivided loyalty of its foremen. There is an inherent tendency to subordinate their interests wherever they conflict with those of the rank and file.' Senate Report 5. (Emphasis supplied.)
39
A similar concern with this conflict-of-loyalties problem was reflected in the House Report:
40
'The evidence before the committee shows clearly that unionizing supervisors under the Labor Act is inconsistent with . . . our policy to protect the rights of employers; they, as well as workers, are entitled to loyal representatives in the plants, but when the foremen unionize, even in a union that claims to be 'independent' of the union of the rank and file, they are subject to influence and control by the rank and file union, and, instead of their bossing the rank and file, the rank and file bosses them.
41
'The bill does not forbid anyone to organize. It does not forbid any employer to recognize a union of foremen. Employers who, in the past, have bargained collectively with supervisors may continue to do so. What the bill does is to say what the law always has said until the Labor Board, in the exercise of what it modestly calls its 'expertness', changed the law: That no one, whether employer or employee, need have as his agent one who is obligated to those on the other side, or one whom, for any reason, he does not trust.' House Report 14—17.20 (Emphasis supplied.)
42
It is clear that the conflict-of-loyalties problem that the Board has sought to reach under § 8(b)(1)(B) was intended by Congress to be dealt with in a very different manner.21 As we concluded in Beasley v. Food Fair of North Carolina, Inc., 416 U.S., at 661—662, 94 S.Ct., at 2028:
43
'This history compels the conclusion that Congress' dominant purpose in amending §§ 2(3) and 2(11), and enacting § 14(a) was to redress a perceived imbalance in labor-management relationships that was found to arise from putting supervisors in the position of serving two masters with opposed interests.'
44
While we recognize that the legislative accommodation adopted in 1947 is fraught with difficulties of its own, '(i)t is not necessary for us to justify the policy of Congress. It is enough that we find it in the statute.' Colgate-Palmolive Peet Co. v. NLRB, 338 U.S. 355, 363, 70 S.Ct. 166, 171, 94 L.Ed. 161 (1949).22
45
Congress' solution was essentially one of providing the employer with an option. On the one hand, he is at liberty to demand absolute loyalty from his supervisory personnel by insisting, on pain of discharge, that they neither participate in, nor retain membership in, a labor union, see Beasley v. Food Fair of North Carolina, Inc., supra. Alternatively, an employer who wishes to do so can permit his supervisors to join or retain their membership in labor unions, resolving such conflicts as arise through the traditional procedures of collective bargaining.23 But it is quite apparent, given the statutory language and the particular concerns that the legislative history shows were what motivated Congress to enact § 8(b)(1)(B), that it did not intend to make that provision any part of the solution to the generalized problem of supervisor-member conflict of loyalties.
46
For these reasons, we hold that the respondent unions did not violate § 8(b) (1)(B) of the Act when they disciplined their supervisor-members for performing rank-and-file struck work. Accordingly, the judgment is affirmed.
47
Affirmed.
48
Mr. Justice WHITE, with whom THE CHIEF JUSTICE, Mr. Justice BLACKMUN, and Mr. Justice REHNQUIST join, dissenting.
49
Believing that the majority has improperly substituted its judgment for a fair and reasonable interpretation by the Board of § 8(b)(1)(B) in light of the statutory language and legislative history of that provision and other provisions dealing with supervisors, I must dissent substantially for the reason expressed by the dissent below.
50
While it might be unreasonable for the Board to interpret § 8(b)(1)(B) to permit an employer to require absolute loyalty from a supervisor-member in all circumstances, it is certainly apparent that during an economic strike, the supervisor's performance of rank-and-file struck work, which represents a classic 'use of economic pressure by the parties to a labor dispute . . .(,) is part and parcel of the process of collective bargaining.' NLRB v. Insurance Agents' International Union, 361 U.S. 477, 495, 80 S.Ct. 419, 430, 4 L.Ed.2d 454 (1960).1 'As management representatives, supervisory personnel may be requested by management to enhance the bargaining position of their employer during a dispute between it and the particular union involved.' 159 U.S.App.D.C. 272, 304, 487 F.2d 1143, 1175 (1973) (en banc) (dissenting opinion) (footnote omitted). Moreover, these union sanctions would unavoidably decrease a supervisor's loyalty to his employer and thereby materially interfere with the performance of those responsibilities which the employer quite properly demands of him. Local Union No. 2150, IBEW (Wisconsin Electric Power Co.), 192 N.L.R.B. 77, 78 (1971), enforced, 486 F.2d 602 (CA7 1973). Nothing in the language or legislative history of the statute contradicts the conclusion that
51
'(w)hen a union disciplines a supervisor for crossing a picket line to perform rank-and-file work at the request of his employer, that discipline equally interferes with the employer's control over his representative and equally deprives him of the undivided loyalty of that supervisor as in the case where the discipline was imposed because of the way the supervisor interpreted the collective bargaining agreement or performed his 'normal' supervisory duties.' 159 U.S.App.D.C., at 305, 487 F.2d, at 1176 (dissenting opinion).2
52
In a steady progression of decisions leading up to the instant cases, the Board concluded that § 8(b)(1)(B) interdicted not only direct union pressure on an employer to replace a supervisor with collective-bargaining or grievance-adjustment functions, but also indirect coercion of an employer by means of attempting, through the application of union discipline apparatus against supervisor-members, to dictate the manner in which they would exercise their supervisory responsibilities. Far from seeing the present cases as a radical extension of this principle, I view the Board's decisions as a reasoned and realistic application of § 8(b)(1)(B). For my part, the Board's findings are based upon substantial record evidence and enjoy 'a reasonable basis in law.' NLRB v. Hearst Publications, Inc., 322 U.S. 111, 131, 64 S.Ct. 851, 860, 88 L.Ed. 1170 (1944). It may be true that special concerns prompted § 8(b)(1)(B), but the provision, as is often the case, was written more broadly. Nor do I see anything in the legislative history foreclosing the Board from applying the section to prevent unions from imposing sanctions on supervisors in the circumstances present here. This Court is not a super-Board authorized to overrule an agency's choice between reasonable constructions of the controlling statute. We should not impose our views on the Board as long as it stays within the outer boundaries of the statute it is charged with administering. Respectfully, I dissent.
1
Under a Letter of Understanding signed by Illinois Bell and Local 134 in 1954 and reaffirmed in 1971, it was provided:
'As District Installation Superintendents and District Construction Supervisors their wages and conditions of employment will not be a matter of union-management negotiations but they will not be required to discontinue their membership in the union as it is recognized that they have accumulated a vested interest in pension and insurance benefits as a result of their membership in the union. However, any allegiance they owe to the union shall not affect their judgment in the disposition of their supervisory duties. Since they will have under their supervision employees who are members of unions other than Local 134 and perhaps some with no union affiliations whatever, the company will expect the same impartial judgment that it demands from all Supervisory personnel.' App. 113.
2
Local 134 also imposed fines of $1,000 upon each of the five supervisors who had formed the Bell Supervisors Protective Association.
3
International Brotherhood of Electrical Workers, AFL—CIO, and Local 134, 192 N.L.R.B. 85 (1971) (hereinafter Illinois Bell).
4
System Council U—4 was named as a respondent in the complaint, but the Board dismissed all charges against it and entered an order only against the local unions.
5
Supervisory employees thus included are district supervisors, assistant district supervisors, assistant supervisors, plant superintendents, plant supervisors, assistant plant superintendents, distribution assistants, results assistants, assistant plant engineers, and subsection supervisors.
6
In both Illinois Bell and this case, some of the supervisors involved, though union members, did not actively participate in union affairs and paid no dues. This was because they held 'honorary' withdrawal cards, permitting them to return to active membership without paying normal initiation fees in the event they returned to rank-and-file work. These cards also permitted their holders to continue participation in the International's death-benefit fund. Other supervisors held 'participating' withdrawal cards under which they continued to pay a fee equal to the monthly dues and remained eligible for pension, death, and disability benefits. The holders of these cards were also not permitted to participate in other union affairs.
7
International Brotherhood of Electrical Workers System Council U—4, 193 N.L.R.B. 30, 31 (1971) (hereinafter Florida Power).
8
159 U.S.App.D.C. 272, 487 F.2d 1143 (1973).
9
S.Rep.No.105, 80th Cong., 1st Sess. (hereinafter Senate Report), pt. 1, p. 21 (1947).
10
The Haverhill Gazette case was typical. There the union had demanded the inclusion of a 'foreman clause' providing that the composing room foreman, who had the power to hire, fire, and process grievances, must be a member of the union, although he would be exempted from union discipline in certain circumstances for activities on behalf of management. As the Court of Appeals pointed out: 'Not only would the clause . . . limit the employers' choice of foremen to union members, but it would also give the unions power to force the discharge or demotion of a foreman by expelling him from the union.' 278 F.2d, at 12.
11
In Toledo Blade, two supervisors were disciplined by the union for working in a crew smaller than the contractually prescribed minimum and for doing production work in excess of the contractually permitted maximum. These activities occurred during an economic strike. The Trial Examiner, in a holding which foreshadowed the cases now before us, noted that such discipline is an unwarranted interference with the employer's control over its own representatives and
'deprives the employer of the undivided loyalty of the supervisor to which it is entitled. If, therefore, the supervisor has actually been designated as the employer's bargaining or grievance representative . . . the Unions' discipline of the supervisor is unquestionably a restraint upon, and coercion of the employer's continuing its selection of, and reliance upon, the supervisor as its bargaining and grievance representative.' 175 N.L.R.B., at 1080—1081.
In enforcing the Board's order, the Court of Appeals noted: This conduct of the union would further operate to make the employees reluctant in the future to take a position adverse to the union, and their usefulness to their employer would thereby be impaired.' 437 F.2d, at 57.
12
Indeed, in its original panel decision in the instant Illinois Bell case, the Court of Appeals spoke of § 8(b)(1)(B) as prohibiting union discipline of supervisory employees 'for actions performed by them within the general scope of their supervisory or managerial responsibilities.' 159 U.S.App.D.C. 242, 248, 487 F.2d 1113, 1119.
13
As the Court of Appeals for the Seventh Circuit reasoned in enforcing the Board's order in Wisconsin Electric:
'What a supervisor's proper functions are when the full complement of employees is at work under the regime of a collective bargaining agreement then in force is not determinative of supervisory responsibility during a strike. Otherwise, with no employees to supervise, many supervisors would simply have no managerial responsibilities during a strike. . . . Insofar as the supervisors work to give the employer added economic leverage, they are acting as members of the management team are expected to act when the employer and union are at loggerheads in their most fundamental of disputes.' 486 F.2d 602, 608 (1973).
14
Section 8(b)(1)(B) was in fact a more restrained solution to the problem of multi-employer bargaining than originally proposed. Proposed § 9(f)(i) of the House bill, H.R. 3020, would have prohibited multi-employer bargaining altogether, see H.R.Rep.No.245, 80th Cong., 1st Sess. (hereinafter House Report), 8—9, 56 (1947).
15
In a similar vein, Senator Ellender observed:
'The bill prevents a union from dictating to an employer on the question of bargaining with union representatives through an employer association. The bill, in subsection 8(b)(1) on page 14, makes it an unfair labor practice for a union to attempt to coerce an employer either in the selection of his bargaining representative or in the selection of a personnel director or foreman, or other supervisory official. Senators who heard me discuss the issue early in the afternoon will recall that quite a few unions forced employers to change foremen. They have been taking it upon themselves to say that management should not appoint any representative who is too strict with the membership of the union. This amendment seeks to prescribe a remedy in order to prevent such interferences.' 93 Cong.Rec. 4143.
16
To hold that union discipline of supervisor-members for performing rank-and-file struck work is not proscribed by § 8(b)(1)(b) of the Act is not to hold that such discipline is expressly permitted by § 8(b)(1)(A) of the Act, as construed in NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967). The decision in that case is inapposite where the union seeks to fine not employee-members but supervisor-members, who are explicitly excluded from the definition of 'employee' by § 2(3), 29 U.S.C. § 152(3), and hence from the coverage of § 8(b)(1)(A). See Beasley v. Food Fair of North Carolina, Inc., 416 U.S. 653, 94 S.Ct. 2023, 40 L.Ed.2d 443 (1974). The Act, therefore, neither protects nor prohibits union discipline of supervisor-members for engaging in rank-and-file struck work. In light of the fact that 'Congress has been rather specific when it has come to outlaw particular economic weapons on the part of unions,' NLRB v. Drivers Local Union No. 639, 362 U.S. 274, 282—283, 80 S.Ct. 706, 711, 4 L.Ed.2d 710 (1960), the admonition against regulation of the choice of economic weapons that may be used as part of collective bargaining absent a particularized statutory mandate is particularly apt in this context. NLRB v. Insurance Agents, 361 U.S. 477, 490, 80 S.Ct. 419, 427, 4 L.Ed. 454 (1960). See Summers, Disciplinary Powers of Unions, 3 Ind. & Lab.Rel.Rev. 483 (1950); Summers, Legal Limitations on Union Discipline, 64 Harv.L.Rev. 1049 (1951); Wellington, Union Democracy and Fair Representation: Federal Responsibility in a Federal System, 67 Yale L.J. 1327 (1958); Cox, Internal Affairs of Labor Unions Under the Labor Reform Act of 1959, 58 Mich.L.Rev. 819 (1960).
17
Title 29 U.S.C. § 152(3) provides in pertinent part:
'The term 'employe' shall include any employee, . . . but shall not include . . . any individual employed as a supervisor . . ..'
Title 29 U.S.C. § 152(11) provides:
'The term 'supervisor' means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.'
18
It has been held that this right is limited to the extent that an employer cannot discharge supervisory personnel for participation in the union where the discharge is found to interfere with, restrain, or coerce employees in the exercise of their protected rights, see NLRB v. Talladega Cotton Factory, Inc., 213 F.2d 209 (CA5 1954), or where it is prompted by the supervisors' refusal to engage in unlawful activity, see NLRB v. Lowe, 406 F.2d 1033 (CA6 1969).
19
Prior to the passage of the National Labor Relations Act in 1935, foremen and rank-and-file workers were often members of the same bargaining unit, and such conflict-of-interest problems as arose were dealt with through the collective-bargaining process. After first holding that supervisors could organize in independent or affiliated unions in Union Collieries Coal Co., 41 N.L.R.B. 961 (1942) and Godchaux Sugars, Inc., 44 N.L.R.B. 874 (1942), the Board, concerned by the conflict of interests created thereby, reversed its position in Maryland Drydock Co., 49 N.L.R.B. 733 (1943), and held that except where foremen had been organized in 1935 when the Act was passed, supervisory units were not appropriate collective-bargaining units under the Wagner Act. The Board then reversed its position again in Packard Motor Co., 61 N.L.R.B. 4, enforced, 157 F.2d 80 (CA6), aff'd, 330 U.S. 485, 67 S.Ct. 789, 91 L.Ed. 1040 (1947), holding that supervisory employees as a class were entitled to the rights of self-organization and collective bargaining. See NLRB v. Bell Aerospace Co., 416 U.S. 267, 277, 94 S.Ct. 1757, 1763, 40 L.Ed.2d 134 (1974); Beasley v. Food Fair of North Carolina, Inc., 416 U.S., at 658 n. 4, 94 S.Ct., at 2026. See also House Report 13—14. In discussing the proposed legislation dealing with supervisory personnel, the Senate Report stated:
'It should be noted that all that the bill does is to leave foremen in the same position in which they were until the Labor Board reversed the position it had originally taken in 1943 in the Maryland Drydock case (49 N.L.R.B. 733). In other words, the bill does not prevent anyone from organizing nor does it prohibit any employer from recognizing a union of foremen. It merely relieves employers who are subject to the national act free from any compulsion by this National Board or any local agency to accord to the front line of management the anomalous status of employees.' Senate Report 5.
20
Instructive as well is the fact that §§ 2(3) and 14(a) were both slightly modified versions of §§ 9(a) and (c) of the Case bill, H.R. 4908, 79th Cong., 2d Sess. (1946), which was passed by Congress in 1946 but vetoed by President Truman. See Senate Report 5. That earlier bill, however, contained no provision bearing any resemblance to § 8(b)(1)(B), which first appeared in S. 1126, 80th Cong., 1st Sess. (1947).
21
Further support for the proposition that § 8(b)(1)(B) was addressed to a separate and far more limited problem than that of conflict of loyalties dealt with in §§ 2(3), 2(11), and 14(a) is found in the differing scope of the provisions themselves. Section 8(b)(1)(B) purports to cover only those selected as the employer's representative 'for the purposes of collective bargaining or the adjustment of grievances,' whereas the class of supervisors excluded from the definition of employees in § 2(3) is defined by § 2(11) to include individuals engaged in a substantially broader range of activities. See supra, n. 17; NLRB v. Bell Aerospace Co., supra. The two groups coincide only with respect to the function of grievance adjustment.
22
There can be no denying that the supervisors involved in the present cases found themselves in something of a dilemma, and were pulled by conflicting loyalties. But inherent in the option afforded the employer by Congress, must be the recognition that supervisors permitted by their employers to maintain union membership will necessarily incur obligations to the union. See Nassau & Suffolk Contractors' Assn., Inc., 118 N.L.R.B. 174, 182 (1957). See Summers, Legal Limitations on Union Discipline, 64 Harv.L.Rev. 1049 (1951). And, while both employer and the union may have conflicting but nonetheless legitimate expectations of loyalty from supervisor-members during a strike, the fact that the supervisor will in some measure be the beneficiary of any advantages secured by the union through the strike makes it inherently inequitable that he be allowed to function as a strikebreaker without incurring union sanctions.
The supervisor-member is, of course, not bound to retain his union membership absent a union security clause, and if, for whatever reason, he chooses to resign from the union, thereby relinquishing his union benefits, he could no longer be disciplined by the union for working during a strike. 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); Booster Lodge 405 v. NLRB, 412 U.S. 84, 93 S.Ct. 1961, 36 L.Ed.2d 764 (1973).
In these cases, the supervisors' dilemma has been somewhat exaggerated by the petitioners. in Illinois Bell, the company did not command its supervisors to work during the strike and expressly left the decision to each individual. Those who chose not to work were not penalized, and some were in fact promoted by their employer after the strike had ended. Those who did work during the strike but performed only their regular duties were not disciplined by the union. In Florida Power, the record does not disclose whether the supervisors crossed the picket lines at the company's request or not, but in any event, the union did not discipline those who did so only to perform their normal supervisory functions.
23
Thus, while a union violates § 8(b)(1)(B) by striking to force an employer to agree to hire only union members as foremen, International Typographical Union Local 38 v. NLRB, 278 F.2d 6 (CA1 1960), aff'd by an equally divided Court, 365 U.S. 705, 81 S.Ct. 855, 6 L.Ed.2d 36 (1961), see n. 7, supra, it can propose that supervisors be covered by the collective-bargaining agreement, Sakrete of Northern California, Inc. v. NLRB, 332 F.2d 902 (CA9 1964), cert. denied, 379 U.S. 961, 85 S.Ct. 649, 13 L.Ed.2d 556 (1965). Similarly, it is clear that an employer may request that supervisors be excluded from the bargaining unit, Federal Compress & Warehouse Co. v. NLRB, 398 F.2d 631 (CA6 1968); NLRB v. Corral Sportswear Co., 383 F.2d 961 (CA10 1967).
The parties in Florida Power in fact agreed to the inclusion in the collective-bargaining agreement of provisions governing the disciplining by the union of supervisory personnel, basically providing that such matters were to be dealt with through the grievance adjustment and arbitration provisions of the agreement. See supra, at 796.
1
The court below acknowledged the practical realities of the use of supervisors during a strike: 'in the highly automated public utility industries involved in these cases a small work force composed of strikebreakers and non-union management personnel can evidently provide sufficient manpower to continue vital services in a strike, thereby cutting into the strike's effectiveness.' 159 U.S.App.D.C. 272, 290 n. 21, 487 F.2d 1143, 1161 n. 21 (1973) (en banc).
2
I do not read the Court to say that § 8(b)(1)(B) would allow a union to discipline supervisor-members for performing supervisory or management functions, as opposed to customary rank-and-file work, during a labor dispute.
| 67
|
418 U.S. 24
94 S.Ct. 2655
41 L.Ed.2d 551
Viola N. RICHARDSON, as County Clerk, etc., Petitioner,v.Abran RAMIREZ et al.
No. 72—1589.
Argued Jan. 15, 1974.
Decided June 24, 1974.
Syllabus
After the three individual respondents, who had been convicted of felonies and had completed their sentences and paroles, were refused registration to vote in three different California counties respectively because of their felony convictions, they brought a class petition, on behalf of themselves and all other ex-felons similarly situated, for a writ of mandate in the California Supreme Court, naming as defendants the Secretary of State and the three county election officials who had denied them registration 'individually and as representatives of the class of all other' county election officials in the State, and challenging the constitutionality of respondents' disenfranchisement on the ground, inter alia, that provisions of the California Constitution and the implementing statutes that disenfranchised ex-felons denied them equal protection. The three county officials named as defendants decided not to contest the action and told the court they would henceforth register to vote ex-felons, including respondents, whose sentences and paroles had expired. Prior to the return date of the writ, the court added to the named defendants (instead of allowing her to intervene) another county election official (petitioner here) who was the defendant in a similar action by an ex-felon pending in the State Court of Appeal. After holding that the three first-named county officials' acquiescence did not render the case moot, the California Supreme Court went on to hold that the constitutional and statutory provisions in question, as applied to ex-felons whose sentences and paroles had expired, violated the Equal Protection Clause of the Fourteenth Amendment, but did not issue the peremptory writ. Held:
1. In view of its unusual procedural history in the Supreme Court of California, the case is not moot. Pp. 34—40.
(a) The State Supreme Court's action in adding petitioner as a named defendant after the other named county officials decided not to contest the action, and at a time when the Secretary of State (who did not join in the petition to this Court) was still a party defendant who had answered the complaint, indicates that the court considered the suit to be not only on behalf of the three named plaintiffs, but also on behalf of all ex-felons in California similarly situated, and also that the court regarded petitioner's opponent in the Court of Appeal suit, both as an unnamed member of the class of ex-felons referred to in the complaint and as one of a class actually seeking to register in petitioner's county, as a party to the Supreme Court action. Pp. 38—40.
(b) Being rendered in a class action in which relief in the nature of declaratory relief was granted, the decision below is not only binding on petitioner and thus dispositive of her other suit, but also decides the federal constitutional question presented for the unnamed members of the classes represented below by petitioner and respondents, whose continuing controversy in the State Supreme Court still continues in this Court. Brockington v. Rhodes, 396 U.S. 41, 90 S.Ct. 206, 24 L.Ed.2d 209, distinguished. P. 40.
2. California, in disenfranchising convicted felons who have completed their sentences and paroles, does not violate the Equal Protection Clause, Pp. 41—56.
(a) The understanding of the framers of the Fourteenth Amendment, as reflected in the express language of § 2 of the Amendment, which exempts from the sanction of reduced congressional representation resulting from the denial of citizens' right to vote, the denial of such right for 'participation in rebellion, or other crime,' and in the historical and judicial interpretation of the Amendment's applicability to state laws disenfranchising felons, is of controlling significance in distinguishing such laws from those other state limitations on the franchise that this Court has held invalid under the Equal Protection Clause. Pp. 54—55.
(b) Section 1 of the Fourteenth the Amendment "largely through the ac-Protection Clause, in dealing with voting rights as it does, could not have been meant to bar outright a form of disenfranchisement that was expressly exempted from the less drastic sanction of reduced representation that § 2 imposed for other forms of disenfranchisement. P. 55.
(c) Even if § 2 was made part of the Amendment "largely through the accident of political exigency rather than for the relation which it bore to the other sections of Amendment," as respondents contend, this does not preclude looking to it for guidance in interpreting § 1, since § 2 is as much a part of the Amendment as any of the other sections, and how it became part of the Amendment is less important than what it says and what it means. P. 55.
9 Cal.3d 199, 107 Cal.Rptr. 137, 507 P.2d 1345, reversed and remanded.
Duncan M. James, Dist. Atty. of Mendocino County, Ukiah, Cal., for petitioner.
George J. Roth, Los Angeles, Cal., for State of California, as amicus curiae, by special leave of Court.
Martin R. Glick, San Francisco, Cal., for respondents.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
The three individual respondents in this case were convicted of felonies and have completed the service of their respective sentences and paroles. They filed a petition for a writ of mandate in the Supreme Court of California to compel California county election officials to register them as voters.1 They claimed, on behalf of themselves and others similarly situated, that application to them of the provisions of the California Constitution and implementing statutes which disenfranchised persons convicted of an 'infamous crime' denied them the right to equal protection of the laws under the Federal Constitution. The Supreme Court of California held that 'as applied to all ex-felons whose terms of incarceration and parole have expired, the provisions of article II and article XX, section 11, of the California Constitution denying the right of suffrage to persons convicted of crime, together with the several sections of the Elections Code implementing that disqualification . . . violate the equal protection clause of the Fourteenth Amendment.' Ramirez v. Brown, 9 Cal.3d 199, 216—217, 107 Cal.Rptr. 137, 149, 507 P.2d 1345, 1357 (1973). We granted certiorari, 414 U.S. 816, 94 S.Ct. 45, 38 L.Ed.2d 49 (1973).
2
Article XX, § 11, of the California Constitution has provided since its adoption in 1879 that '(l)aws shall be made' to exclude from voting persons convicted of bribery, perjury, forgery, malfeasance in office, 'or other high crimes.' At the time respondents were refused registration, former Art, II, § 1, of the California Constitution provided in part that 'no alien ineligible to citizenship, no idiot, no insane person, no person convicted of any infamous crime, no person hereafter convicted of the embezzlement or misappropriation of public money, and no person who shall not be able to read the Constitution in the English language and write his or her name, shall ever exercise the privileges of an elector in this State.'2 Sections 310 and 321 of the California Elections Code provide that an affidavit of registration shall show whether the affiant has been convicted of 'a felony which disqualifies (him) from voting.'3 Sections 383, 389, and 390 direct the county clerk to cancel the registration of all voters who have been convicted of 'any infamous crime or of the embezzlement or misappropriation of any public money.'4 Sections 14240 and 14246 permit a voter's qualifications to be challenged on the ground that he has been convicted of 'a felony' or of 'the embezzlement or misappropriation of public money.'5 California provides by statute for restoration of the right to vote to persons convicted of crime either by court order after the completion of probation,6 or, if a prison term was served, by executive pardon after completion of rehabilitation proceedings.7 California also provides a procedure by which a person refused registration may obtain judicial review of his disqualification.8
3
Each of the individual respondents was convicted of one or more felonies, and served some time in jail or prison followed by a successfully terminated parole. Respondent Ramirez was convicted in Texas; respondents Lee and Gill were convicted in California. When Ramirez applied to register to vote in San Luis Obispo County, the County Clerk refused to allow him to register. The Monterey County Clerk refused registration to respondent Lee, and the Stanislaus County Registrar of Voters (hereafter also included in references to clerks) refused registration to respondent Gill.
4
All three respondents were refused registration because of their felony convictions.9
5
In May 1972 respondents filed a petition for a writ of mandate in the Supreme Court of California, invoking its original jurisdiction.10 They named as defendants11 below the three election officials of San Luis Obispo, Monterey, and Stanislaus Counties who had refused to allow them to register, 'individually and as representatives of the class of all other County Clerks and Registrars of Voters who have the duty of determining for their respective counties whether any ex-felon will be denied the right to vote.' The petition for a writ of mandate challenged the constitutionality of respondents' exclusion from the voting rolls on two grounds. First, it was contended that California's denial of the franchise to the class of ex-felons could no longer withstand scrutiny under the Equal Protection Clause of the Fourteenth Amendment. Relying on the Court's recent voting-rights cases, respondents argued that a compelling state interest must be found to justify exclusion of a class from the franchise, and that California could assert no such interest with respect to ex-felons. Second, respondents contended that application of the challenged California constitutional and statutory provisions by election officials of the State's 58 counties was so lacking in uniformity as to deny them due process and 'geographical . . . equal protection.' They appended a report by respondent California Secretary of State, and the questionnaries returned by county election officials on which it was based. The report concluded that there was wide variation in the county election officials' interpretation of the challenged voting exclusions.12 The Supreme Court of California upheld the first contention and therefore did not reach the second one.
6
* Before reaching respondents' constitutional challenge, the Supreme Court of California considered whether a decision reached by the three county clerks not to contest the action, together with their representation to the court that they would henceforth permit all ex-felons whose terms of incarceration and parole had expired to register and vote, rendered this case moot. That court decided that it did not. The acquiescence of the three officials was in no way binding on election officials of the other 55 California counties in which respondents might choose to reside, and it was undisputed that there were many ex-felons among the residents of those counties who had been or would be refused registration on the ground challenged. Because the case posed a question of broad public interest, which was likely to recur and which should receive a statewide resolution, the court exercised its 'inherent discretion to resolve the issue, 'even though an event occurring during its pendency would normally render the matter moot.' . . . This rule is particularly applicable to challenges to the validity of election laws.' 9 Cal.3d, at 203, 107 Cal.Rptr., at 139, 507 P.2d, at 1347. In addition to California cases, the court cited Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973) As a practical matter, there can be no doubt that there is a spirited dispute between the parties in this Court as to the constitutionality of the California provisions disenfranchising ex-felons. Even though the Supreme Court of California did not in fact issue a permanent writ of mandate, and therefore its judgment is in effect a declaratory judgment, an action for such relief may stem from a controversy that is 'definite and concrete, touching the legal relations of parties having adverse legal interests.' Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 240—241, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1937). By reason of the special relationship of the public officials in a State to the court of last resort of that State, the decision of the Supreme Court of California, if left standing, leaves them permanently bound by its conclusion on a matter of federal constitutional law. Cf. North Dakota State Board of Pharmacy v. Snyder's Drug Stores, Inc., 414 U.S. 156, 94 S.Ct. 407, 38 L.Ed.2d 379 (1973).
7
This case in some respects presents stronger arguments for concluding that a live case or controversy remains than in other election cases in which we have addressed the question of mootness. Unlike Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969), in which the particular candidacy was not apt to be revived in a future election, or Hall v. Beals, 396 U.S. 45, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969), in which the voters who had been disenfranchised because of a residence requirement would not have suffered the same fate under the amended statute, respondents here are indefinitely disenfranchised by the provisions of California law which they challenge. While the situation in Moore v. Ogilvie, supra, was described as "capable of repetition, yet evading review," 394 U.S., at 816, 89 S.Ct., at 1494, that involved here can best be described, in view of the Supreme Court of California's decision against the state officials and their obligation to follow the law as laid down by that court, as 'incapable of repetition,' and therefore evading review. There are thus the strongest sorts of practical arguments, as well as the language of Moore v. Ogilvie, supra, which militate against a conclusion of mootness in this case.
8
But purely practical considerations have never been thought to be controlling by themselves on the issue of mootness in this Court. While the Supreme Court of California may choose to adjudicate a controversy simply because of its public importance, and the desirability of a statewide decision, we are limited by the case-or-controversy requirement of Art. III to adjudication of actual disputes between adverse parties.
9
The mootness problem here arises because, as it noted, the Supreme Court of California was assured by the three county clerks who were named as defendants that the three named plaintiffs would be allowed to register and vote. The three named plaintiffs resided respectively in the California counties of San Luis Obispo, Monterey, and Stanislaus, and the county clerks of those counties who were named as defendants neither defended the action in the Supreme Court of California nor sought review here. Petitioner here is the County Clerk of Mendocino County, who though of course bound by the judgment of the Supreme Court of California, since she was made a party to that action, has no concrete dispute with voters who reside in other counties. Thus if the case were limited to the named parties alone, it could be persuasively argued that there was no present dispute on the issue of the right to register between the three named individual respondents in this Court and the one named petitioner here.
10
We think, however, that the unusual procedural history of the case in the Supreme Court of California leads to the conclusion that the litigation before us is not moot. The individual named plaintiffs brought their action in the Supreme Court of California on behalf of themselves and all other ex-felons similarly situated, and not simply those ex-felons residing in the counties in which the named plaintiffs resided. While only the county clerks of Stainslaus, Monterey and San Luis Obispo were named parties defendant, they were designated in the original complaint filed in the Supreme Court of California 'as representatives of the class of all other County Clerks.' The California Secretary of State was likewise named a party defendant. On the basis of this complaint, the Supreme Court of California issued an alternative writ of mandate directed to the three named county clerks 'individually and as representatives of the class of all other County Clerks and Registrars of Voters,' directing them to register to vote not simply the three named plaintiffs, but 'all exfelons whose term of incarceration and parole have expired and who upon application demonstrate that they are otherwise fully qualified to vote,' or in the alternative to show cause why they had not done so upon the return date of the writ. Thus, while the Supreme Court of California did not in so many words say that it was permitting respondents to proceed by way of a 'class action,' the fact that the court's process recited that the named clerks were subject to it 'individually and as representatives of the class of all other County Clerks and Registrars of Voters,' and the fact that the beneficiaries of that process were not merely the named plaintiffs but 'all ex-felons whose term of incarceration and parole (had) expired . . .' indicates that the court treated the action as one brought for the benefit of the class described in the petition for the writ of mandate.
11
Petitioner Viola Richardson, the County Clerk of Mendocino County, filed a complaint in intervention in the action in the Supreme Court of California, alleging that the suit as framed by the named plaintiffs was collusive, in that neither the three named county clerks nor the Secretary of State could be expected to contest the claims of plaintiffs. Petitioner Viola Richardson further alleged in her complaint of intervention that she was a party to a lawsuit brought against her by an ex-felon (also named Richardson) who had sought to register in Mendocino County, had been denied the right, and whose suit seeking to establish the right was then pending in the State Court of Appeal.
12
The county clerks actually named as defendants in the mandate action each obeyed the alternative writ issued by the Supreme Court of California, and did not contest the named plaintiffs' legal claim that they had a right to vote secured by the Equal Protection Clause of the Fourteenth Amendment which overrode the contrary provisions of the California Constitution. The Secretary of State appeared in the action and generally denied the named plaintiffs' essential claims.
13
The Supreme Court of California, prior to the return date of the writ, issued an order denying petitioner Richardson's motion to intervene, but instead ordered her added to the named defendants in the action along with the three other named county clerks and the Secretary of State. This action in the Supreme Court of California, coming as it did after the acquiescence of the named clerks in the counties in which the named plaintiffs resided, and yet at a time when the Secretary of State was still a party defendant who had answered the complaint, clearly indicates to us that that court considered the action to be not only on behalf of the three named plaintiffs, but also on behalf of all exfelons in California similarly situated. We are reinforced in this conclusion by the language quoted above from the alternative writ of mandate issued by the Supreme Court of California. Had the Supreme Court of California based its action on petitioner Richardson's claim that the suit was collusive, and that it might become a binding precedent in her litigation then pending in the State Court of Appeal, it would seem to have been sufficient to grant the motion to intervene. But the court's action adding petitioner Richardson as a named defendant would appear to have been based on its conclusion that at least some members of the class represented by the plaintiffs in fact resided in Mendocino County, and were there seeking to exercise their right to vote. In reaching such a conclusion, of course, the Supreme Court of California had before it petitioner Richardson's allegation that at least her opponent in the litigation pending in the Court of Appeal was not merely seeking to register to vote in Mendocino County, but had brought a lawsuit to enforce his claim.
14
At the time petitioner Richardson was added as a party defendant, the three named plaintiffs had obtained the relief which they sought, whereas the remaining members of the class, including petitioner Richardson's opponent in the court of appeal litigation, had not. We have held that in the federal system one may not represent a class of which he is not a part, Bailey v. Patterson, 369 U.S. 31, 32—33, 82 S.Ct. 549, 550—551, 7 L.Ed.2d 512 (1962), and if this action had arisen in the federal courts there would be serious doubt as to whether it could have proceeded as a class action on behalf of the class of ex-felons denied the right to register after the three named plaintiffs had been granted that right. Indiana Employment Security Division v. Burney, 409 U.S. 540, 93 S.Ct. 883, 35 L.Ed.2d 62 (1973). But California is at liberty to prescribe its own rules for class actions, subject only to whether limits may be imposed by the United States Constitution, and we interpret its action in adding petitioner Richardson as a defendant to mean that it regarded her opponent in the Court of Appeal litigation, both as an unnamed member of the class of ex-felons referred to in the mandate complaint, and as one of a class actually seeking to register in Mendocino County, as a party to the action in the Supreme Court of California, albeit an unnamed one.
15
In Brockington v. Rhodes, 396 U.S. 41, 90 S.Ct. 206, 24 L.Ed.2d 209 (1969), we emphasized in finding the case moot that appellant's 'suit did not purport to be a class action, and he sought no declaratory relief.' Id., at 42, 90 S.Ct., at 207. We said:
16
'(I)n view of the limited nature of the relief sought, we think the case is moot because the congressional election is over. The appellant did not allege that he intended to run for office in any future election. He did not attempt to maintain a class action on behalf of himself and other putative independent candidates, present or future. He did not sue for himself and others similarly situated as independent voters, as he might have under Ohio law. . . . He did not seek a declaratory judgment, although that avenue too was open to him. . . .' Id., at 43, 90 S.Ct., at 208.
17
Here, unlike Brockington, there was a class action, and relief in the nature of declaratory relief was granted. The decision below is not only binding on petitioner Richardson, and thus dispositive of her other Court of Appeal litigation, but also decides the federal constitutional question presented for the unnamed members of the classes represented below by petitioner and respondents, whose continuing controversy led the Supreme Court of California to conclude that this case was not moot.
18
The briefs of the parties before us indicate that the adverse alignment in the Supreme Court of California continues in this Court, and we therefore hold the case is not moot.13
II
19
Unlike most claims under the Equal Protection Clause, for the decision of which we have only the language of the Clause itself as it is embodied in the Fourteenth Amendment, respondents' claim implicates not merely the language of the Equal Protection Clause of § 1 of the Fourteenth Amendment, but also the provisions of the less familiar § 2 of the Amendment:
20
'Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.' (Emphasis supplied.)
21
Petitioner contends that the italicized language of § 2 expressly exempts from the sanction of that section disenfranchisement grounded on prior conviction of a felony. She goes on to argue that those who framed and adopted the Fourteenth Amendment could not have intended to prohibit outright in § 1 of that Amendment that which was expressly exempted from the lesser sanction of reduced representation imposed by § 2 of the Amendment. This argument seems to us a persuasive one unless it can be shown that the language of § 2, 'except for participation in rebellion, or other crime,' was intended to have a different meaning than would appear from its face.
22
The problem of interpreting the 'intention' of a constitutional provision is, as countless cases of this Court recognize, a difficult one. Not only are there deliberations of congressional committees and floor debates in the House and Senate, but an amendment must thereafter be ratified by the necessary number of States. The legislative history bearing on the meaning of the relevant language of § 2 is scant indeed; the framers of the Amendment were primarily concerned with the effect of reduced representation upon the States, rather than with the two forms of disenfranchisement which were exempted from that consequence by the language with which we are concerned here. Nonetheless, what legislative history there is indicates that this language was intended by Congress to mean what it says.
23
A predecessor of § 2 was contained in an earlier draft of the proposed amendment, which passed the House of Representatives, but was defeated in the Senate early in 1866. The Joint Committee of Fifteen of Reconstruction then reconvened, and for a short period in April 1866, revised and redrafted what ultimately became the Fourteenth Amendment. The Journal of that Committee's proceedings shows only what motions were made and how the various members of the Committee voted on the motions; it does not indicate the nature or content of any of the discussion in the Committee. While the Journal thus enables us to trace the evolution of the draft language in the Committee, it throws only indirect light on the intention or purpose of those who drafted § 2. See B. Kendrick, Journal of the Joint Committee of Fifteen on Reconstruction 104 120 (1914).
24
We do know that the particular language of § 2 upon which petitioner relies was first proposed by Senator Williams of Oregon to a meeting of the Joint Committee on April 28, 1866. Senator Williams moved to strike out what had been § 3 of the earlier version of the draft, and to insert in place thereof the following:
25
'Representatives shall be apportioned among the several states which may be included within this Union according to their respective numbers, counting the whole number of persons in each State excluding Indians not taxed. But whenever in any State the elective franchise shall be denied to any portion of its male citizens, not less than twenty-one years of age, or in any way abridged, except for participation in rebellion or other crime, the basis of representation in such State shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens not less than twenty-one years of age.' Id., at 102.
26
The Joint Committee approved this proposal by a lopsided margin, and the draft Amendment was reported to the House floor with no change in the language of § 2.
27
Throughout the floor debates in both the House and the Senate, in which numerous changes of language in § 2 were proposed, the language 'except for participation in rebellion, or other crime' was never altered. The language of § 2 attracted a good deal of interest during the debates, but most of the discussion was devoted to its foreseeable consequences in both the Northern and Southern States, and to arguments as to its necessity or wisdom. What little comment there was on the phrase in question here supports a plain reading of it.
28
Congressman Bingham of Ohio, who was one of the principal architects of the Fourteenth Amendment and an influential member of the Committee of Fifteen, commented with respect to § 2 as follows during the floor debates in the House:
29
'The second section of the amendment simply provides for the equalization of representation among all the States of the Union, North, South, East, and West. It makes no discrimination. New York has a colored population of fifty thousand. By this section, if that great State discriminates against her colored population as to the elective franchise, (except in cases of crime,) she loses to that extent her representative power in Congress. So also will it be with every other State.' Cong.Globe, 39th Cong., 1st Sess., 2543 (1866).
30
Two other Representatives who spoke to the question made similar comments. Representative Eliot of Massachusetts commented in support of the enactment of § 2 as follows:
31
'Manifestly no State should have its basis of national representation enlarged by reason of a portion of citizens within its borders to which the elective franchise is denied. If political power shall be lost because of such denial, not imposed because of participation in rebellion or other crime, it is to be hoped that political interests may work in the line of justice, and that the end will be the impartial enfranchisement of all citizens not disqualified by crime.' Id., at 2511.
32
Representative Eckley of Ohio made this observation:
33
'Under a congressional act persons convicted of a crime against the laws of the United States, the penalty for which is imprisonment in the penitentiary, are now and always have been disfranchised, and a pardon did not restore them unless the warrant of pardon so provided.
34
'. . . But suppose the mass of the people of a State are pirates, counterfeiters, or other criminals, would gentlemen be willing to repeal the laws now in force in order to give them an opportunity to land their piratical crafts and come on shore to assist in the election of a President or members of Congress because they are numerous? And let it be borne in mind that these latter offenses are only crimes committed against property; that of treason is against the nation, against the whole people—the highest known to the law.' Id., at 2535.
35
The debates in the Senate did not cover the subject as exhaustively as did the debates in the House, apparently because many of the critical decisions were made by the Republican Senators in an unreported series of caucuses off the floor. Senator Saulsbury of Delaware, a Democrat who was not included in the majority caucus, observed:
36
'It is very well known that the majority of the members of this body who favor a proposition of this character have been in very serious deliberation for several days in reference to these amendments, and have held some four or five caucuses on the subject.' Id., at 2869.
37
Nonetheless, the occasional comments of Senators on the language in question indicate an understanding similar to that of the House members. Senator Johnson of Maryland, one of the principal opponents of the Fourteenth Amendment, made this argument:
38
'Now it is proposed to deny the right to be represented of a part, simply because they are not permitted to exercise the right of voting. You do not put them upon the footing of aliens, upon the footing of rebels, upon the footing of minors, upon the footing of the females, upon the footing of those who may have committed crimes of the most heinous character. Murderers, robbers, houseburners, counterfeiters of the public securities of the United States, all who may have committed any crime, at any time, against the laws of the United States or the laws of a particular State, are to be included within the basis; but the poor black man, unless he is permitted to vote, is not to be represented, and is to have no interest in the Government.' Id., at 3029.
39
Senator Henderson of Missouri, speaking in favor of the version of § 2 which had been reported by the Joint Committee in April, as opposed to the earlier provision of the proposal which had been defeated in the Senate, said this:
40
'The States under the former proposition (the corresponding provision of the original Amendment reported by the Committee of Fifteen, which passed the House of Representatives but was defeated in the Senate) might have excluded the negroes under an educational test and yet retained their power in Congress. Under this they cannot. For all practical purposes, under the former proposition loss of representation followed the disfranchisement of the negro only; under this it follows the disfranchisement of white and black, unless excluded on account of 'rebellion or other crime." Id., at 3033.
41
Further light is shed on the understanding of those who framed and ratified the Fourteenth Amendment, and thus on the meaning of § 2, by the fact that at the time of the adoption of the Amendment, 29 States had provisions in their constitutions which prohibited, or authorized the legislature to prohibit, exercise of the franchise by persons convicted of felonies or infamous crimes.14
42
More impressive than the mere existence of the state constitutional provisions disenfranchising felons at the time of the adoption of the Fourteenth Amendment is the congressional treatment of States readmitted to the Union following the Civil War. For every State thus readmitted, affirmative congressional action in the form of an enabling act was taken, and as a part of the readmission process the State seeking readmission was required to submit for the approval of the Congress its proposed state constitution. In March 1867, before any State was readmitted, Congress passed 'An act to provide for the more efficient Government of the Rebel States,' the so-called Reconstruction Act. Act of Mar. 2, 1867, c. 153, 14 Stat. 428. Section 5 of the Reconstruction Act established conditions on which the former Confederate States would be readmitted to representation in Congress. It provided:
43
'That when the people of any one of said rebel States shall have formed a constitution of government in conformity with the Constitution of the United States in all respects, framed by a convention of delegates elected by the male citizens of said State, twenty-one years old and upward, of whatever race, color, or previous condition, who have been resident in said State for one year previous to the day of such election, except such as may be disenfranchised for participation in the rebellion or for felony at common law, and when such constitution shall provide that the elective franchise shall be enjoyed by all such persons as have the qualifications herein stated for electors of delegates, and when such constitution shall be ratified by a majority of the persons voting on the question of ratification who are qualified as electors for delegates, and when such constitution shall have been submitted to Congress for examination and approval, and Congress shall have approved the same, and when said State, by a vote of its legislature elected under said constitution, shall have adopted the amendment to the Constitution of the United States, proposed by the Thirty-ninth Congress, and known as article fourteen, and when said article shall have become a part of the Constitution of the United States, said State shall be declared entitled to representation in Congress, and senators and representatives shall be admitted therefrom on their taking the oath prescribed by law, and then and thereafter the preceding sections of this act shall be inoperative in said State . . ..' (Emphasis supplied.)
44
Section 5 was introduced as a Senate amendment to the House bill, which was concerned only with the establishment of military government in the former Confederate States. Cong.Globe, 39th Cong., 2d Sess., 1360—1361 (1867). The legislative history of the Reconstruction Act was recounted by Senator Henderson of Missouri, who ultimately voted for it:
45
'As the bill originally came from the House it was a bald and naked proposition to establish without limitation of power or the time of its duration a purely military government for the ten States now unrepresented. This, in my judgment, was a most dangerous experiment. . . .
46
'The Senate, being unwilling to embark on the experiment of pure military rule, modified the House bill by adopting what is known as the Blaine or Sherman amendment. This amendment conceded military rule, as asked by the House, but put some sort of limit to its duration. It provided that when the rebel States should adopt universal suffrage, regardless of color or race, excluding none, white or black, except for treason or such crimes as were felony at the common law, the regulation of exclusion to be left to the States themselves, and should adopt the constitutional amendment proposed at the last session of Congress . . . and so soon as a sufficient number of said States should adopt it to make it a part of the Constitution of the United States, then military law should cease and the States should be admitted, provided that Congress even then should see fit to receive them.' Id., at 1641.
47
A series of enabling acts in 1868 and 1870 admitted those States to representation in Congress. The Act admitting Arkansas, the first State to be so admitted, attached a condition to its admission. Act of June 22, 1868, c. 69, 15 Stat. 72. That Act provided:
48
'Whereas the people of Arkansas, in pursuance of the provisions of an act entitled 'An act for the more efficient government of the rebel States,' passed March second, eighteen hundred and sixty-seven, and the act supplementary thereto, have framed and adopted a constitution of State government, which is republican, and the legislature of said State has duly ratified the amendment to the Constitution of the United States proposed by the Thirty-ninth Congress, and known as article fourteen: Therefore,
49
'Be it enacted . . . That the State of Arkansas is entitled and admitted to representation in Congress as one of the States of the Union upon the following fundamental condition: That the constitution of Arkansas shall never be so amended or changed as to deprive any citizen or class of citizens of the United States of the right to vote who are entitled to vote by the constitution herein recognized, except as a punishment for such crimes as are now felonies at common law, whereof they shall have been duly convicted, under laws equally applicable to all the inhabitants of said State: Provided, That any alteration of said constitution prospective in its effect may be made in regard to the time and place of residence of voters.' The phrase 'under laws equally applicable to all the inhabitants of said State' was introduced as an amendment to the House bill by Senator Drake of Missouri. Cong.Globe, 40th Cong., 2d Sess., 2600 (1868). Senator Drake's explanation of his reason for introducing his amendment is illuminating. He expressed concern that without that restriction, Arkansas might misuse the exception for felons to disenfranchise Negroes:
50
'There is still another objection to the condition as expressed in the bill, and that is in the exception as to the punishment for crime. The bill authorizes men to be deprived of the right to vote 'as a punishment for such crimes as are now felonies at common law, whereof they shall have been duly convicted.' There is one fundamental defect in that, and that is that there is no requirement that the laws under which men shall be duly convicted of these crimes shall be equally applicable to all the inhabitants of the State. It is a very easy thing in a State to make one set of laws applicable to white men, and another set of laws applicable to colored men.' Ibid.
51
The same 'fundamental condition' as was imposed by the act readmitting Arkansas was also, with only slight variations in language, imposed by the Act readmitting North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida, enacted three days later. Act of June 25, 1868, c. 70, 15 Stat. 73. That condition was again imposed by the Acts readmitting Virginia, Mississippi, Texas, and Georgia early in 1870. Act of Jan. 26, 1970, c. 10, 16 Stat. 62; Act of Feb. 1, 1870, c. 12, 16 Stat. 63; Act of Feb. 23, 1870, c. 19, 16 Stat. 67; Act of Mar. 30, 1870, c. 39, 16 Stat. 80; Act of July 15, 1870, c. 299, 16 Stat. 363.
52
This convincing evidence of the historical understanding of the Fourteenth Amendment is confirmed by the decisions of this Court which have discussed the constitutionality of provisions disenfranchising felons. Although the Court has never given plenary consideration to the precise question of whether a State may constitutionally exclude some or all convicted felons from the franchise, we have indicated approval of such exclusions on a number of occasions. In two cases decided toward the end of the last century, the Court approved exclusions of bigamists and polygamists from the franchise under territorial laws of Utah and Idaho. Marphy v. Ramsey, 114 U.S. 15, 5 S.Ct. 747, 29 L.Ed. 47 (1885); Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890). Much more recently we have strongly suggested in dicta that exclusion of convicted felons from the franchise violates no constitutional provision. In Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959), where we upheld North Carolina's imposition of a literacy requirement for voting, the Court said, id., at 51, 79 S.Ct., at 990:
53
'Residence requirements, age, previous criminal record (Davis v. Beason, 133 U.S. 333, 345—347, 10 S.Ct. 299, 301—302, 33 L.Ed. 637) are obvious examples indicating factors which a State may take into consideration in determining the qualifications of voters.'
54
Still more recently, we have summarily affirmed two decisions of three-judge District Courts rejecting constitutional challenges to state laws disenfranchising convicted felons. Fincher v. Scott, 352 F.Supp. 117 (MDNC1972), aff'd, 411 U.S. 961, 93 S.Ct. 2151, 36 L.Ed.2d 681 (1973); Beacham v. Braterman, 300 F.Supp. 182 (S.D.Fla.), aff'd, 396 U.S. 12, 90 S.Ct. 153, 24 L.Ed.2d 11 (1969). Both District Courts relied on Green v. Board of Elections, 380 F.2d 445 (1967), cert. denied, 389 U.S. 1048, 88 S.Ct. 768, 19 L.Ed.2d 840 (1968), where the Court of Appeals for the Second Circuit held that a challenge to New York's exclusion of convicted felons from the vote did not require the convening of a three-judge district court.
55
Despite this settled historical and judicial understanding of the Fourteenth Amendment's effect on state laws disenfranchising convicted felons, respondents argue that our recent decisions invalidating other state-imposed restrictions on the franchise as violative of the Equal Protection Clause require us to invalidate the disenfranchisement of felons as well. They rely on such cases as Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972), Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969), and Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969), to support the conclusions of the Supreme Court of California that a State must show a 'compelling state interest' to justify exclusion of ex-felons from the franchise and that California has not done so here.
56
As we have seen, however, the exclusion of felons from the vote has an affirmative sanction in § 2 of the Fourteenth Amendment, a sanction which was not present in the case of the other restrictions on the franchise which were invalidated in the cases on which respondents rely. We hold that the understanding of those who adopted the Fourteenth Amendment, as reflected in the express language of § 2 and in the historical and judicial interpretation of the Amendment's applicability to state laws disenfranchising felons, is of controlling significance in distinguishing such laws from those other state limitations on the franchise which have been held invalid under the Equal Protection Clause by this Court. We do not think that the Court's refusal to accept Mr. Justice Harlan's position in his dissents in Reynolds v. Sims, 377 U.S. 533, 589, 84 S.Ct. 1362, 1395, 12 L.Ed.2d 506 (1964), and Carrington v. Rash, 380 U.S. 89, 97, 85 S.Ct. 775, 780, 13 L.Ed.2d 675 (1965), that § 2 is the only part of the Amendment dealing with voting rights, dictates an opposite result. We need not go nearly so far as Mr. Justice Harlan would to reach our conclusion, for we may rest on the demonstrably sound proposition that § 1, in dealing with voting rights as it does, could not have been meant to bar outright a form of disenfranchisement which was expressly exempted from the less drastic sanction of reduced representation which § 2 imposed for other forms of disenfranchisement. Nor can we accept respondents' argument that because § 2 was made part of the Amendment "largely through the accident of political exigency rather than through the relation which it bore to the other sections of the Amendment," we must not look to it for guidance in interpreting § 1. It is as much a part of the Amendment as any of the other sections, and how it became a part of the Amendment is less important than what it says and what it means.
57
Pressed upon us by the respondents, and by amici curia, are contentions that these notions are outmoded, and that the more modern view is that it is essential to the process of rehabilitating the exfelon that he be returned to his role in society as a fully participating citizen when he has completed the serving of his term. We would by no means discount these arguments if addressed to the legislative forum which may properly weigh and balance them against those advanced in support of California's present constitutional provisions. But it is not for us to choose one set of values over the other. If respondents are correct, and the view which they advocate is indeed the more enlightened and sensible one, presumably the people of the State of California will ultimately come around to that view. And if they do not do so, their failure is some evidence, at least, of the fact that there are two sides to the argument.
58
We therefore hold that the Supreme Court of California erred in concluding that California may no longer, consistent with the Equal Protection Clause of the Fourteenth Amendment, exclude from the franchise convicted felons who have completed their sentences and paroles. The California court did not reach respondents' alternative contention that there was such a total lack of uniformity in county election officials' enforcement of the challenged state laws as to work a separate denial of equal protection, and we believe that it should have an opportunity to consider the claim before we address ourselves to it. Accordingly, we reverse and remand for further proceedings not inconsistent with this opinion.
59
It is so ordered.
60
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
61
The Court today holds that a State may strip ex-felons who have fully paid their debt to society of their fundamental right to vote without running afoul of the Fourteenth Amendment. This result is, in my view, based on an unsound historical analysis which already has been rejected by this Court. In straining to reach that result, I believe that the Court has also disregarded important limitations on its jurisdiction. For these reasons, I respectfully dissent.
62
* A brief retracing of the procedural history of this case is necessary to a full understanding of my views. Each of the respondents, the plaintiffs below,1 had been convicted of a felony unrelated to voting and had fully served his term of incarceration and parole. Each applied to register to vote in his respective county—Ramirez in San Luis Obispo County, Lee in Monterey County, and Gill in Stanislaus County. All three were refused registration because, under applicable provisions of the California Constitution, 'no person convicted of any infamous crime . . . shall ever exercise the privileges of an elector.'2
63
The three named plaintiffs filed a petition for a writ of mandate in the California Supreme Court, invoking its original jurisdiction. Plaintiffs challenged the State's disenfranchisement of exfelons as being violative of the Equal Protection Clause of the Fourteenth Amendment and sought issuance of a peremptory writ of mandate to compel their registration. The complaint labeled the suit as brought 'individually and on behalf of all other persons who are ineligible to register to vote in California solely by reason of a conviction of a felony other than an election code felony' and who had fully served their terms of incarceration and parole. The complaint named, as defendants, the election officials who had refused to register them, 'individually and as representatives of the class of all other County Clerks and Registrars of Voters who have the duty of determining for their respective counties whether any ex-felon will be denied the right to vote.' The three named election officials did not contest the action and represented to the state court that they would permit the named plaintiffs and all similarly situated ex-felons in their counties to register and to vote. The representative of the Secretary of State of California, also named as a defendant, has similarly agreed not to contest the suit.3 At this point in the litigation all of the named plaintiffs had been voluntarily afforded the relief they were seeking by the election officials in their respective counties.
64
Subsequently, the petitioner in this Court, Viola Richardson, as County Clerk of Mendocino County, filed a motion to intervene in the proceedings before the California Supreme Court. She indicated to the court that she was being sued in a separate action in a lower state court by an ex-felon seeking to register in her county and that the decision in this case would be dispositive of the legal issue in that controversy. The State Supreme Court ordered Richardson added as a named defendant in the instant action, but did not name the exfelon suing her as a plaintiff or named class representative herein.
65
In its opinion, the California Supreme Court found the case not to be moot and took the opportunity to address the merits of the Fourteenth Amendment issue. It indicated that, in its view, the ex-felon disenfranchisement provision of the California Constitution and its implementing statutes violated the Equal Protection Clause. The state court did not, however, afford the plaintiffs the relief they sought. The court denied the peremptory writ of mandate.
66
Although the California Supreme Court did not issue a writ ordering Richardson to register either the ex-felon suing her or any other potential elector in her county, she sought review of the state court's decisions by way of writ of certiorari in this Court. The election officials in the named plaintiffs' counties did not seek review and the Secretary of State filed a memorandum opposing review by this Court.
A.
67
There are a number of reasons why I do not believe this case is properly before us at this time. First, I am persuaded that the judgment of the California Supreme Court rests on an adequate and independent state ground.
68
'This Court from the time of its foundation has adhered to the principle that it will not review judgments of state courts that rest on adequate and independent state grounds. . . . Our only power over state judgments is to correct them to the extent that they incorrectly adjudge federal rights. And our power is to correct wrong judgments, not to review opinions. We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion.' Herb v. Pitcairn, 324 U.S. 117, 125—126, 65 S.Ct. 459, 463, 89 L.Ed. 789 (1945).
69
Plaintiffs sought, from the California Supreme Court, a writ of mandate compelling their registration. The state court denied that relief. The entirety of the judgment of that court is as follows:
70
'The alternative writ, having served its purpose, is discharged, and the petition for peremptory writ is denied.' Ramirez v. Brown, 9 Cal.3d 199, 217, 107 Cal.Rptr. 137, 149, 507 P.2d 1345, 1357 (1973).4
71
The accompanying opinion indicates that the California court did not consider the case before it to be moot and that, in its view, the plaintiffs' assertion that the disenfranchisement provisions were unconstitutional was well taken. Since the court nonetheless denied plaintiffs the relief they sought, we can only conclude that it did so on independent state law grounds. Cf. Brockington v. Rhodes, 396 U.S. 41, 44, 90 S.Ct. 206, 208, 24 L.Ed.2d 209 (1969). For example, a writ of mandate, being discretionary, the state court may have declined its issuance simply because the named plaintiffs had already been registered and mandate relief seemed unnecessary.5 There is certainly no indication that the decision to deny the writ was based on the state court's view on any federal question.
72
This Court creates an interesting anomaly by purporting to reverse the judgment of the California court. Since that court denied a writ of mandate to compel the registration of ex-felons, the only disposition consistent with this Court's view that the California disenfranchisement provisions are constitutional would be to affirm the judgment below. By reversing, the Court apparently directs the issuance of the peremptory writ. This anomaly demonstrates that this is a classic example of a case where 'the same judgment would be rendered by the state court after we corrected its views of federal laws,' Herb v. Pitcairn, supra, 324 U.S., at 126, 65 S.Ct., at 463; hence we can but offer an advisory opinion here. Whether we agree or disagree with the state court's view of the constitutionality of the challenged provisions, the judgment of the state court will necessarily remain to deny the writ of mandate.
73
The Court is aware of this problem and purports to resolve it by speculating that the California court may have afforded plaintiffs declaratory relief. Such speculation is totally unfounded. Neither the opinion nor the judgment of the court below even mentions declaratory relief. The plaintiffs did not seek a declaratory judgment. The California Constitution on its face appears to bar the State Supreme Court from issuing a declaratory judgment in an original proceeding such as the one before us, since it limits that court's original jurisdiction to 'proceedings for extraordinary relief in the nature of mandamus, certiorari, and prohibition.' Calif.Const., Art. 6, § 10 (Supp.1974). Exclusive jurisdiction for suits seeking declaratory relief is vested, by statute, in the State Superior Courts.6
74
This Court's basis for construing the judgment of the court below as affording declaratory relief is its argument that because the California Supreme Court is the highest court of the State, its observations on the constitutionality of the challenged disenfranchisement provisions are apt to be heeded by state officials. It is true that the opinion of the California court did indicate a view on the merits of the plaintiffs' constitutional claim. But this Court's power 'is to correct wrong judgments, not to revise opinions.' Herb v. Pitcairn, supra, at 126, 65 S.Ct., at 463. One could always argue that where a state court had commented on a matter of federal law, state officials would heed those comments. To say that such comments are a 'declaration of federal law' reviewable by this Court is a rationale that would reach every case in which the state court decision rests on adequate state grounds, rendering that doctrine a virtual nullity. The Court also cites two cases for the proposition that the California Supreme Court can issue a declaratory judgment in an original proceeding. But, on closer inspection, the cases cited by the Court, ante, at 41 n. 13, merely demonstrate that California courts, whose jurisdiction is not limited by any equivalent to Art. III, are free to render advisory opinions.7 There is little doubt that many public officials would heed such an advisory opinion from the California Supreme Court and they would also heed an advisory opinion issued by this Court, but that does not free us from the constitutional limitations on our jurisdiction.
75
Because I believe that the judgment of the California court was based on adequate and independent state grounds, I do not think we have jurisdiction to consider any other issues presented by this case.
B
76
Assuming, arguendo, that the California Supreme Court did grant a declaratory judgment, I still believe that we are without jurisdiction because no case or controversy is presented. The Court seems willing to concede that the claims of the named plaintiffs may well be moot. Ante, at 36. The Court, however, premises its jurisdiction on the assumption that there is a live controversy between the named petitioner in this Court and the unnamed plaintiff class members in her own county. To reach this conclusion, it is essential for the Court to conclude that this case is, in fact, a class action and that, in the circumstances of this case, it is appropriate to look to unnamed class members to determine whether there is a live controversy.
77
I am forced to point out that one of the crucial premises upon which the Court bases its assumption of jurisdiction—the existence of a class action—is highly speculative. I am persuaded that the California court never treated this case as a class action. As the majority notes, the case was titled a class action by its originators and the show-cause order merely tracked the language of the complaint. But the California court was, of course, not bound by that designation. In the entirety of its lengthy opinion, the California court does not once refer to this suit as a class action, to respondents as class representatives, to the existence of unnamed parties or to any other indicia of class-action status. Rather, the state court describes the case as simply 'a proceeding for writ of mandate brought by three ex-felons to compel respondent election officials to register them as voters.' 9 Cal.3d, at 201, 107 Cal.Rptr., at 138, 507 P.2d, at 1346. The opinion proceeds to list the three plaintiffs and, in a footnote, to explain that the only other plaintiffs were the League of Women Voters and three nonprofit organizations which support the interests of ex-felons. The opinion describes the defendants as the election officials of San Luis Obispo, Monterey, and Stanislaus Counties and the Secretary of State 'in his capacity (as) chief elections officer of California,' and notes that '(u)pon application we ordered the Mendocino County clerk (the petitioner here) joined as an additional party (defendant).' Id., at 202 n. 1, 107 Cal.Rptr., at 138, 507 P.2d, at 1346. This description of the parties plainly indicates that this suit was not treated as a class action by the state court. I think it highly inappropriate that on the basis of nothing but speculation, this case be fashioned into a class action, for the first time, in this Court.
C
78
Even assuming that this case is a class action, I still would not agree that it is properly before us. I do not believe that we can look beyond the named class members to find a case or controversy in the circumstances of this case. The Court seems to hold that review is not foreclosed by the possible mootness of the named plaintiffs' claim because, but for the California Supreme Court's decision, unnamed class members would still be subject to the challenged disenfranchisement, hence the case presents, as to unnamed class members, an issue capable of repetition, yet evading review. I disagree.
79
As the Court properly notes, a general rule of justificability is not one may not represent a class of which he is not a part. Thus, as a general proposition, a federal court will not look to unnamed class members to establish the case-orcontroversy requirement of Art. III.8 But, the 'evading review' doctrine of Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911), as recently applied in Dunn v. Blumstein, 405 U.S. 330, 333 n. 2, 92 S.Ct. 995, 998, 31 L.Ed.2d 274 (1972), provides a limited exception to the general rule—an exception necessary to insure that judicial review is not foreclosed in cases where intervening events threaten invariably to moot the named plaintiff's claim for relief.
80
The necessity for looking beyond the named class members in this limited category of cases is evidenced by our decision in Dunn v. Blumstein, supra, in which the Court struck down a durational residence requirement for voting. The suit had been brought to compel the registration of the named plaintiff and the members of the class he represented in order that they might participate in an election scheduled for August 6, 1970. The Federal District Court did not order preliminary relief in time for the August election and, by the time the District Court decided the case, the next election was scheduled for November 1970. By then, the named plaintiff would have met the challenged three-month requirement. The District Court, nonetheless, rejected the State's argument that the controversy over the validity of the three-month requirement was therefore moot.
81
By the time the appeal reached this Court, the only named plaintiff had also satisfied the one-year state residence requirement. We nonetheless reached the merits, observing that '(a)lthough appellee (the only named plaintiff) can now vote, the problem to voters posed by the Tennessee residence requirements is "capable of repetition, yet evading review." Moore v. Ogilvie, 394 U.S. 814, 816 (89 S.Ct. 1493, 1494, 23 L.Ed.2d 1) (1969).' 405 U.S., at 333 n. 2, 92 S.Ct., at 998. Both this Court and the District Court found that, although the named plaintiff had satisfied the challenged residence requirements and would no longer be disenfranchised thereby, the case was not moot. The challenged requirement remained applicable to unnamed class members,9 and the issue presented was likely to evade review. Obviously the mere passage of a few months would invariably have rendered a challenge to the residence requirements by individual named plaintiffs moot threatening virtually to foreclose judicial review.
82
A similar situation was presented in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), relied on by the California court. We there held that although a woman who was not pregnant at the time the suit was filed did not have standing to challenge the constitutionality of the Texas abortion laws, a continuing controversy over the constitutionality of those laws existed as to a named plaintiff who was pregnant when the suit was filed, even though she may not have been pregnant at later stages of the appeal. We concluded that this case provided a classic example of an issue capable of repetition, yet evading review, hence the termination of the plaintiff's pregnancy while the case was on appeal did not render the case moot—even though a woman whose pregnancy has ended is no more effected by the abortion laws than one who was not pregnant at the time the suit was filed. '(T)he . . . human gestation period is so short that . . . pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, . . . appellate review will be effectively denied.' Id., at 125, 93 S.Ct., at 713.
83
There are two common threads running through these cases—in each the challenged statute would continue to be applied, but the named plaintiff's claim would inevitably mature into mootness rending resolution of the lawsuit. In Roe, the termination of pregnancy, in Dunn, the passage of the residence requirement period, and in other voting cases, the occurrence of an election,10 deprived the named plaintiff of a continuing controversy over the application of the challenged statute. In each instance, the mere passage of time threatened to insulate a constitutional deprivation from judicial review, and it is that danger which served as the rationale for rejecting suggestions of mootness. Where an invalid statute would thus continue to be applied simply because judicial review of a live controversy involving the named plaintiff was inveriably foreclosed—the issue would be capable of repetition yet evading review.
84
Accordingly, the Southern Pacific doctrine requires the satisfaction of two tests in order to provide an answer to a suggestion of mootness. First, the claimed deprivation must, in fact, be 'capable of repetition.' This element is satisfied where, even though the named plaintiff's immediate controversy has been mooted by intervening events, either he or unnamed class members may continue to suffer the alleged constitutional deprivation in the future. The case before us clearly satisfies this first element of the Southern Pacific doctrine test. Since the California court declined to order any county clerk to register ex-felons, presumably the challenged disenfranchisement provisions could continue to be applied to unnamed class members in counties other than those in which the named plaintiffs reside.11
85
Second, the issue presented must be likely to evade review, but for invocation of the Southern Pacific doctrine. It is on the 'evading review' element that the Court's analysis fails. Because the claim raised in this case concerns not a time-related but rather a status-based deprivation, there is no issue evading review and no reason to look beyond the named plaintiffs.12 This is not a situation where, by the time a case reaches this Court, it will always be too late to grant the named plaintiff relief. If and when an ex-felon is refused access to the voting rolls because of his past criminal record, an intervening election will not moot his claim for relief and the status giving rise to his disenfranchisement will not inevitably terminate pending review.
86
There are clearly ways in which a challenge to the California disenfranchisement provisions could reach this Court. The California Supreme Court has not issued a writ of mandate compelling the registration of any ex-felon.13 If such a potential voter is, in fact, refused registration, a controversy suitable for resolution by this Court will be presented. The suit brought against petitioner Richardson, by an ex-felon resident of her own county, raising the same issues as those presented by this case, is presently pending in a California intermediate appellate court.14 In that case, petitioner Richardson did, in fact, deny the plaintiff registration because he was an ex-felon. Once that case completes its passage through the state courts, it could well serve as a vehicle for our review of the California disenfranchisement provisions. That is, of course, but one example of how the issue presented here could properly reach this Court. This case does not therefore benefit from the Southern Pacific doctrine's authority to look to unnamed class members to establish a case of controversy.
87
That the California Supreme Court appears to have found the plaintiffs' claims not to be moot does not detract from this conclusion since '(e)ven in cases arising in the state courts, the question of mootness is a federal one which a federal court must resolve before it assumes jurisdiction.' North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 U.S.2d 413 (1971). Thus, unlike the Court, I am persuaded that we can look only to the named plaintiffs to satisfy the case-or-controversy requirement of Art. III.
D
88
The named plaintiffs here were registered only because the clerks in their counties had voluntarily abandoned an allegedly illegal practice of disenfranchising ex-felons, and we have said that '(m)ere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave '(t)he defendant . . . free to return to his old ways.' . . . (But a) case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.' United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 (1968); accord, United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953). Accordingly, whether the named plaintiffs have a live controversy with the clerks in their own counties would depend on the likelihood of future disenfranchisement.15 But we need not consider that question here because none of the election officials in the named plaintiffs' counties sought review in this Court and none is now before us.
89
The sole petitioner before this Court is Viola Richardson. None of the named plaintiffs are residents of her county. While those named plaintiffs may or may not have a live controversy with the clerks in their own counties, they surely do not have one with petitioner Richardson. While Richardson may well have a live controversy with ex-felons in her own county over the validity of the disenfranchisement laws, those ex-felons are not before this Court, and she has no dispute with the named plaintiffs. In sum, there is no controversy between the parties before this Court. Petitioner Richardson seeks to use the named plaintiffs' controversy with their own county clerks as a vehicle for this Court to issue an advisory opinion on the issue presented by the suit brought against her by an ex-felon in her own county. Such a decision would violate the "oldest and most consistent thread in the federal law of justiciability . . . that the federal courts will not give advisory opinions." Flast v. Cohen, 392 U.S. 83, 96, 88 S.Ct. 1942, 1950, 20 L.Ed.2d 947 (1968).
II
90
Since the Court nevertheless reaches the merits of the constitutionality of California's disenfranchisement of exfelons, I find it necessary to register my dissent on the merits as well. The Court construes § 2 of the Fourteenth Amendment as an express authorization for the States to disenfranchise former felons. Section 2 does except disenfranchisement for 'participation in rebellion, or other crime' from the operation of its penalty provision. As the Court notes, however, there is little independent legislative history as to the crucial words 'or other crime'; the proposed § 2 went to a joint committee containing only the phrase 'participation in rebellion' and emerged with 'or other crime' inexplicably tacked on.16 In its exhaustive review of the lengthy legislative history of the Fourteenth Amendment, the Court has come upon only one explanatory reference for the 'other crimes' provision—a reference which is unilluminating at best.17
91
The historical purpose for § 2 itself is, however, relatively clear and, in my view, dispositive of this case. The Republicans who controlled the 39th Congress were concerned that the additional congressional representation of the Southern States which would result from the abolition of slavery might weaken their own political dominance.18 There were two alternatives available—either to limit southern representation, which was unacceptable on a long-term basis,19 or to insure that southern Negroes, sympathetic to the Republican cause, would be enfranchised; but an explicit grant of sufferage to Negroes was thought politically unpalatable at the time.20 Section 2 of the Fourteenth Amendment was the resultant compromise. It put Southern States to a choice—enfranchise Negro voters or lose congressional representation.21
92
The political motivation behind § 2 was a limited one. It had little to do with the purposes of the rest of the Fourteenth Amendment. As one noted commentator explained:
93
"It became a part of the Fourteenth Amendment largely through the accident of political exigency rather than through the relation which it bore to the other sections of the Amendment. . . ."22 '(I)t seems quite impossible to conclude that there was a clear and deliberate understanding in the House that § 2 was the sole source of national authority to protect voting rights, or that it expressly recognized the states' power to deny or abridge the right to vote.'23
94
It is clear that § 2 was not intended and should not be construed to be a limitation on the other sections of the Fourteenth Amendment. Section 2 provides a special remedy—reduced representation—to cure a particular form of electoral abuse—the disenfranchisement of Negroes. There is no indication that the framers of the provisions intended that special penalty to be the exclusive remedy for all forms of electoral discrimination. This Court has repeatedly rejected that rationale. See Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965).
95
Rather, a discrimination to which the penalty provision of § 2 is inapplicable must still be judged against the Equal Protection Clause of § 1 to determine whether judicial or congressional remedies should be invoked. That conclusion is compelled by this Court's holding in Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970). Although § 2 excepts from its terms denial of the franchise not only to ex-felons but also to persons under 21 years of age, we held that the Congress, under § 5, had the power to implement the Equal Protection Clause by lowering the voting age to 18 in federal elections. As Mr. Justice Brennan, joined by Mr. Justice White, as well as myself, there observed, § 2 was intended as no more 'than a remedy supplementary, and in some conceivable circumstances indispensable, to other congressional and judicial remedies available under §§ 1 and 5.' 400 U.S., at 278, 91 S.Ct., at 341.
96
The Court's references to congressional enactments contemporaneous to the adoption of the Fourteenth Amendment, such as the Reconstruction Act and the readmission statutes, are inapposite. They do not explain the purpose for the adoption of § 2 of the Fourteenth Amendment. They merely indicate that disenfranchisement for participation in crime was not uncommon in the States at the time of the adoption of the Amendment. Hence, not surprisingly, that form of disenfranchisement was excepted from the application of the special penalty provision of § 2. But because Congress chose to exempt one form of electoral discrimination from the reduction-of-representation remedy provided by § 2 does not necessarily imply congressional approval of this disenfranchisement.24 By providing a special remedy for disenfranchisement of a particular class of voters in § 2, Congress did not approve all election discriminations to which the § 2 remedy was inapplicable, and such discrimination thus are not forever immunized from evolving standards of equal protection scrutiny. Cf. Shapiro v. Thompson, 394 U.S. 618, 638—639, 89 S.Ct. 1322, 1333—1334, 22 L.Ed.2d 600 (1969). There is no basis for concluding that Congress intended by § 2 to freeze the meaning of other clauses of the Fourteenth Amendment to the conception of voting rights prevalent at the time of the adoption of the Amendment. In fact, one form of disenfranchisement—one-year durational residence requirements—specifically authorized by the Reconstruction Act, one of the contemporaneous enactments upon which the Court relies to show the intendment of the framers of the Fourteenth Amendment, has already been declared unconstitutional by this Court in Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972).
97
Disenfranchisement for participation in crime, like durational residence requirements, was common at the time of the adoption of the Fourteenth Amendment. But 'constitutional concepts of equal protection are not immutably frozen like insects trapped in Devonian amber.' Dillenburg v. Kramer, 469 F.2d 1222, 1226 (CA9 1972). We have repeatedly observed:
98
'(T)he Equal Protection Clause is not shackled to the political theory of a particular era. In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed to be the limits of fundamental rights.' Harper v. Virginia Board of Elections, 383 U.S. 663, 669, 86 S.Ct. 1079, 1083, 16 L.Ed.2d 169 (1966).
99
Accordingly, neither the fact that several States had ex-felon disenfranchisement laws at the time of the adoption of the Fourteenth Amendment, nor that such disenfranchisement was specifically excepted from the special remedy of § 2, can serve to insulate such disenfranchisement from equal protection scrutiny.
III
100
In my view, the disenfranchisement of ex-felons must be measured against the requirements of the Equal Protection Clause of § 1 of the Fourteenth Amendment. That analysis properly begins with the observation that because the right to vote 'is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government,' Reynolds v. Sims, 377 U.S., at 555, 84 S.Ct., at 1378, voting is a 'fundamental' right. As we observed in Dunn v. Blumstein, supra, 405 U.S., at 336, 92 S.Ct., at 999:
101
'There is no need to repeat now the labors undertaken in earlier cases to analyze (the) right to vote and to explain in detail the judicial role in reviewing state statutes that selectively distribute the franchise. In decision after decision, this Court has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction. See e.g., Evans v. Cornman, 398 U.S. 419, 421—422, 426, 90 S.Ct. 1752, 1754—1755, 1756, 26 L.Ed.2d 370 (1970); Kramer v. Union Free School District, 395 U.S. 621, 626—628, 89 S.Ct. 1886, 1889—1890, 23 L.Ed.2d 583 (1969); Cipriano v. City of Houma, 395 U.S. 701, 706, 89 S.Ct. 1897, 1900, 23 L.Ed.2d 647 (1969); Harper v. Virginia Board of Elections, 383 U.S. 663, 667, 86 S.Ct. 1079, 1081, 16 L.Ed.2d 169 (1966); Carrington v. Rash, 380 U.S. 89, 93—94, 85 S.Ct. 775, 778, 779, 13 L.Ed.2d 675 (1965); Reynolds v. Sims, supra.' We concluded: '(I)f a challenge 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." 405 U.S., at 337, 92 S.Ct., at 1000. (Emphasis in original.)
102
To determine that the compelling-state-interest test applies to the challenged classification is, however, to settle only a threshold question. 'Compelling state interest' is merely a shorthand description of the difficult process of balancing individual and state interests that the Court must embark upon when faced with a classification touching on fundamental rights. Our other equal protection cases give content to the nature of that balance. The State has the heavy burden of showing, first, that the challenged disenfranchisement is necessary to a legitimate and substantial state interest; second, that the classification is drawn with precision—that it does not exclude too many people who should not and need not be excluded; and, third, that there are no other reasonable ways to achieve the State's goal with a lesser burden on the constitutionally protected interest. E.g., Dunn v. Blumstein, supra, at 343, 360, 92 S.Ct., at 1003, 1012; Kramer v. Union Free School District, 395 U.S. 621, 632, 89 S.Ct. 1886, 1892, 23 L.Ed.2d 583 (1969); see Rosario v. Rockefeller, 410 U.S. 752, 770, 93 S.Ct. 1245, 1256, 36 L.Ed.2d 1 (1973) (Powell, J., dissenting); cf. Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974); NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963); Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960).
103
I think it clear that the State has not met its burden of justifying the blanket disenfranchisement of former felons presented by this case. There is certainly no basis for asserting that ex-felons have any less interest in the democratic process than any other citizen. Like everyone else, their daily lives are deeply affected and changed by the decisions of government. See Kramer, supra, 395 U.S., at 627, 89 S.Ct., at 1889. As the Secretary of State of California observed in his memorandum to the Court in support of respondents in this case:
104
'It is doubtful . . . whether the state can demonstrate either a compelling or rational policy interest in denying former felons the right to vote. The individuals involved in the present case are persons who have fully paid their debt to society. They are as much affected by the actions of government as any other citizens, and have as much of a right to participate in governmental decision-making. Furthermore, the denial of the right to vote to such persons is a hindrance to the efforts of society to rehabilitate former felons and convert them into law-abiding and productive citizens.'25
105
It is argued that disenfranhisement is necessary to prevent vote frauds. Although the State has a legitimate and, in fact, compelling interest in preventing election fraud, the challenged provision is not sustainable on that ground. First, the disenfranchisement provisions are patently both overinclusive and underinclusive. The provision is not limited to those who have demonstrated a marked propensity for abusing the ballot by violating election laws. Rather, it encompasses all former felons and there has been no showing that ex-felons generally are any more likely to abuse the ballot than the remainder of the population. See Dillenburg v. Kramer, 469 F.2d, at 1225. In contrast, many of those convicted of violating election laws are treated as misdemeanants and are not barred from voting at all. It seems clear that the classification here is not tailored to achieve its articulated goal, since it crudely excludes large numbers of otherwise qualified voters. See Kramer v. Union Free School District, supra, 395 U.S., at 632, 89 S.Ct., at 1892; Cipriano v. City of Houma, 395 U.S. 701, 706, 89 S.Ct. 1897, 1900, 23 L.Ed.2d 647 (1969).
106
Moreover, there are means available for the State to prevent voting fraud which are far less burdensome on the constitutionally protected right to vote. As we said in Dunn, supra, 405 U.S., at 353, 92 S.Ct., at 1008, the State 'has at its disposal a variety of criminal laws that are more than adequate to detect and deter whatever fraud may be feared.' Cf. Harman v. Forssenius, 380 U.S. 528, 543, 85 S.Ct. 1177, 1186, 14 L.Ed.2d 50 (1965); Schneider v. State, 308 U.S. 147, 164, 60 S.Ct. 146, 152, 84 L.Ed. 155 (1939). The California court's catalogue of that State's penal sanctions for election fraud surely demonstrates that there are adequate alternatives to disenfranchisement.
107
'Today . . . the Elections Code punishes at least 76 different acts as felonies, in 33 separate sections; at least 60 additional acts are punished as misdemeanors, in 40 separate sections; and 14 more acts are declared to be felony-misdemeanors. Among this plethora of offenses we take particular note, in the present connection, of the felony sanctions against fraudulent registrations (§ 220), buying and selling of votes (§§ 12000—12008), intimidating voters by threat or bribery (§§ 29130—29135), voting twice, or fraudulently voting without being entitled to do so, or impersonating another voter (§§ 14403, 29430—29431), fraud or forgery in casting absentee ballots (§§ 14690—14692), tampering with voting machines (§ 15280) or ballot boxes (§§ 17090—17092), forging or altering election returns (§§ 29100 29103), and so interfering 'with the officers holding an election or conducting a canvass, or with the voters lawfully exercising their rights of voting at an election, as to prevent the election or canvass from being fairly held and lawfully conducted' (§ 17093).' 9 Cal.3d, at 215—216, 107 Cal.Rptr., at 147—148, 507 P.2d, at 1355—1356 (1973) (footnotes omitted).
108
Given the panoply of criminal offenses available to deter and to punish electoral misconduct, as well as the statutory reforms and technological changes which have transformed the electoral process in the last century, election fraud may no longer be a serious danger.26
109
Another asserted purpose is to keep former felons from voting because their likely voting pattern might be subversive of the interests of an orderly society. See Green v. Board of Elections, 380 F.2d 445, 451 (CA2 1967). Support for the argument that electors can be kept from the ballot box for fear they might vote to repeal or emasculate provisions of the criminal code, is drawn primarily from this Court's decisions in Murphy v. Ramsey, 114 U.S. 15, 5 S.Ct. 747, 29 L.Ed. 47 (1885), and Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890). In Murphy, the Court upheld the disenfranchisement of anyone who had ever entered into a bigamous or polygamous marriage and in Davis, the Court sanctioned, as a condition to the exercise of franchise, the requirement of an oath that the elector did not 'teach, advise, counsel, or encourage any person to commit the crime of bigamy or polygamy.' The Court's intent was clear—'to withdraw all political influence from those who are practically hostile to' the goals of certain criminal laws. Murphy, supra, 114 U.S. at 45, 5 S.Ct., at 764; Davis, supra, 133 U.S., at 334, 10 S.Ct., at 299.
110
To the extent Murphy and Davis approve the doctrine that citizens can be barred from the ballot box because they would vote to change the existing criminal law, those decisions are surely of minimal continuing precedential value. We have since explicitly held that such 'differences of opinion cannot justify for excluding (any) group from . . . 'the franchise," Cipriano v. City of Houma, 395 U.S. at 705—706, 89 S.Ct., at 1900—1901; see Communist Party of Indiana v. Whitcomb, 414 U.S. 441, 94 S.Ct. 656, 38 L.Ed.2d 635 (1974); Evans v. Cornman, 398 U.S. 419, 423, 90 S.Ct. 1752, 1755, 26 L.Ed.2d 370 (1970).
111
'(I)f they are . . . residents, . . . they, as all other qualified residents, have a right to an equal opportunity for political representation. . . . 'Fencing out' from the franchise a sector of the population because of the way they way vote is constitutionally impermissible.' Carrington v. Rash, 380 U.S., at 94, 85 S.Ct., at 779. See Dunn, 405 U.S., at 355, 92 S.Ct. at 1009.
112
Although, in the last century, this Court may have justified the exclusion of voters from the electoral process for fear that they would vote to change laws considered important by a temporal majority, I have little doubt that we would not countenance such a purpose today. The process of democracy is one of change. Our laws are not frozen into immutable form, they are constantly in the process of revision in response to the needs of a changing society. The public interest, as conceived by a majority of the voting public, is constantly undergoing reexamination. This Court's holding in Davis, supra, and Murphy, supra, that a State may disenfranchise a class of voters to 'withdraw all political influence from those who are practically hostile' to the existing order, strikes at the very heart of the democratic process. A temporal majority could use such a power to preserve inviolate its view of the social order simply by disenfranchising those with different views. Voters who opposed the repeal of prohibition could have disenfranchised those who advocated repeal 'to prevent persons from being enabled by their votes to defeat the criminal laws of the country.' Davis, supra, 133 U.S., at 348, 10 S.Ct., at 302. Today, presumably those who support the legalization of marihuana could be barred from the ballot box for much the same reason. The ballot is the democratic system's coin of the realm. To condition its exercise on support of the established order is to debase that currency beyond recognition. Rather than resurrect Davis and Murphy, I would expressly disavow any continued adherence to the dangerous notions therein expressed.27
113
The public purposes asserted to be served by disenfrahchisement have been found wanting in many quarters. When this suit was filed, 23 States allowed ex-felons full access to the ballot. Since that time, four more States have joined their ranks.28 Shortly after lower federal courts sustained New York's and Florida's disenfranchisement provisions, the legislatures repealed those laws. Congress has recently provided for the restoration of felons' voting rights at the end of sentence or parole in the District of Columbia. D.C.Code § 1—1102(7) (1973). The National Conference on Uniform State Laws,29 the American Law Institute,30 the National Probation and Parole Association,31 the National Advisory Commission on Criminal Justice Standards and Goals,32 the President's Commission on Law Enforcement and the Administration of Justice,33 the California League of Women Voters,34 the National Democratic Party,35 and the Secretary of State of California36 have all strongly endorsed full suffrage rights for former felons.
114
The disenfranchisement of ex-felons had 'its origin in the fogs and fictions of feudal jurisprudence and doubtless has been brought forward into modern statutes without fully realizing either the effect of its literal significance or the extent of its infringement upon the spirit of our system of government.' Byers v. Sun Savings Bank, 41 Okl. 728, 731, 139 P. 948, 949 (1914). I think it clear that measured against the standards of this Court's modern equal protection jurisprudence, the blanket disenfranchisement of ex-felons cannot stand.
115
I respectfully dissent.
116
Mr. Justice DOUGLAS, agreeing with Part I—A of this opinion, dissents from a reversal of the judgment below as he cannot say that it does not rest on an independent state ground. See Hayakawa v. Brown, 415 U.S. 1304, 94 S.Ct. 1145, 39 L.Ed.2d 457 (Douglas, J., in chambers).
1
The petition for a writ of mandate in the Supreme Court of California also named the California Secretary of State as a respondent in his capacity of chief elections officer of the State of California. He did not join the petition for a writ of certiorari to this Court, and has filed a brief as a party respondent. Respondents here (petitioners below) also include, in addition to the three individual respondents, the League of Women Voters and three nonprofit organizations which support the interests of ex-convicts—Los Pintos, 7th Step Foundations, Inc. (California Affiliates), and Prisoners' Union.
2
Proposition 7, passed at the November 7, 1972, general election, repealed former Art. II, § 1, of the California Constitution and added new Art. II, § 3:
'The Legislature shall prohibit improper practices that affect elections and shall provide that no severely mentally deficient person, insane person, person convicted of an infamous crime, nor person convicted of embezzlement or misappropriation of public money, shall exercise the privileges of an elector in this state.'
The Supreme Court of California concluded that the new constitutional provision was no different in substance from the former one, and that it did not implicitly repeal the implementing sections of the California Elections Code challenged here.
3
Section 310 of the California Elections Code provides in relevant part that '(t)he affidavit of registration shall show:
(h) That the affiant is not disqualified to vote by reason of a felony conviction.'
Section 321 sets the form of the registration affidavit, which includes the following: '10. I am not disqualified to vote by reason of a felony conviction.'
4
Section 383 of the California Elections Code provides:
'The county clerk shall cancel the registration in the following cases:
'(c) Upon the production of a certified copy of a subsisting judgment of the conviction of the person registered of any infamous crime or of the embezzlement or misappropriation of any public money. . . .'
Section 389 provides:
'The county clerk shall, in the first week of September in each year, examine the records of the courts having jurisdiction in case of infamous crimes and the embezzlement or misappropriation of public money, and shall cancel the affidavits of registration of all voters who have been finally convicted of an infamous crime or of the embezzlement or misappropriation of public money. . . .'
Section 390 provides:
'The county clerk, on the basis of the records of courts in the county having jurisdiction of such offenses, shall furnish to the registrar of voters in a county where there is a registrar of voters, before the first day of September of each year, a statement showing the names of all persons convicted of infamous crimes or of the embezzlement or misappropriation of public money during the year prior to that first day of September, whose convictions have become final. The registrar of voters shall, during the first week of September in each year, cancel the affidavits of registration of such persons. The county clerk shall certify the statement under the seal of his office. . .'
5
Section 14240 of the California Elections Code (Supp.1974) provides:
'A person offering to vote may be orally challenged within the polling place only by a member of the precinct board upon any or all of the following grounds:
'(g) That he has been convicted of a felony.
'On the day of the election no person, other than a member of a precinct board or other official responsible for the conduct of the election, shall challenge any voter or question him concerning his qualifications to vote. . . .'
Section 14246 (Supp.1974) provides:
'If the challenge is on the ground that the person challenged has been convicted of a felony or that he has been convicted of the embezzlement or misappropriation of public money, he shall not be questioned, but the fact may be proved by the production of an authenticated copy of the record or by the sworn oral testimony of two witnesses.'
6
Section 1203.4 of the California Penal Code (Supp.1974) provides:
'(a) In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and he shall thereafter be released from all penalties and disabilities resulting from the offense of which he has been convicted. The probationer shall be informed of this right and privilege in his probation papers. . . .'
7
Section 4852.01 of the California Penal Code (1970) provides that a person convicted of a felony who was incarcerated may file, any time after his release from custody, a notice of intention to apply for a certificate of rehabilitation and pardon. It further provides, however:
'This chapter shall not apply to persons convicted of misdemeanors; to persons who have served time in county jails only; to persons serving a mandatory life parole; to persons committed under death sentences; or to persons in the military service.'
Section 4852.13 of the California Penal Code (1970) provides:
'If, after hearing, the court finds that the petitioner has demonstrated by his course of conduct his rehabilitation and his fitness to exercise all of the civil and political rights of citizenship, the court shall make an order declaring that the petitioner has been rehabilitated, and recommending that the Governor grant a full pardon to the petitioner. Such order shall be filed with the clerk of the court, and shall be known as a certificate of rehabilitation. The certificate shall show the date on which the original notice of intention to apply for a certificate was filed.'
Section 4852.16 provides:
'The certified copy of a certificate of rehabilitation transmitted to the Governor shall constitute an application for a full pardon upon receipt of which the Governor may, without any further investigation, issue a pardon to the person named therein, except that, pursuant to Section 1 of Article VII of the Constitution, the Governor shall not grant a pardon to any person twice convicted of felony, except upon the written recommendation of a majority of the judges of the Supreme Court.'
Section 4852.17 (Supp.1974) provides:
'Whenever a person is granted a full and unconditional pardon by the Governor, based upon a certificate of rehabilitation, the pardon shall entitle the person to exercise thereafter all civil and political rights of citizenship, including but not limited to: (1) the right to vote . . ..'
8
Section 350 of the California Elections Code (1961) provides:
'If the county clerk refuses to register any qualified elector in the county, the elector may proceed by action in the superior court to compel his registration. In an action under this section, as many persons may join as plaintiffs as have causes of action.'
Respondents contended that pardon was not an effective device for obtaining the franchise, noting that during 1968—1971, 34,262 persons were released from state prisons but only 282 pardons were granted.
9
Respondent Ramirez was convicted in Texas of the felony of 'robbery by assault' in 1952. He served three months in jail and successfully terminated his parole in 1962. In February 1972 the San Luis Obispo County Clerk refused to allow Ramirez to register to vote on the ground that he had been convicted of a felony and spent time in incarceration. Respondent Lee was convicted of the felony of heroin possession in California in 1955, served two years in prison, and successfully terminated his parole in 1959. In March 1972 the Monterey County Clerk refused to allow Lee to register to vote on the sole ground that he had been convicted of a felony and had not been pardoned by the Governor. Respondent Gill was convicted in 1952 and 1967 of second-degree burglary in California, and in 1957 of forgery. He served some time in prison on each conviction, followed by a successful parole. In April 1972 the Stanislaus County Registrar of Voters refused to allow Gill to register to vote on the sole ground of his prior felony convictions.
10
Paragraph VI of respondents' petition for mandamus states that the named 'Petitioners bring this action individually and on behalf of all other persons who are ineligible to register to vote in California solely by reason of a conviction of a felony other than an election code felony.' The remainder of the petition makes it clear that the class was further restricted to ex-felons, and the Supreme Court of California so treated it.
11
We refer to the named 'defendants' in the action in the Supreme Court of California, even though in that court they were actually denominated respondents according to California practice, and we refer to named 'plaintiffs' in that court, even though they were actually there denominated as petitioners. We do this for convenience of reference, in order to avoid as much as possible confusion between reference to the position of the parties in the Supreme Court of California and their position here.
12
The parties agree that the lack of uniformity is the result of differing interpretations of the 1966 Supreme Court of California decision in Otsuka v. Hite, 64 Cal.2d 596, 51 Cal.Rptr. 284, 414 P.2d 412, which defined 'infamous crime' as used in the California constitutional provisions.
The California Secretary of State's report noted that '(m)ost' of the 49 responding counties 'have attempted to develop consistent criteria for determining which ex-felons shall be entitled to register. In some counties these policies have been formalized in writing, but in most instances a case-by-case method has been used.' The report concluded:
'2. Although the policy within most counties may be consistent, the fact that some counties have adopted different policies has created a situation in which there is a lack of uniformity across the state. It appears from the survey that a person convicted of almost any given felony would find that he is eligible to vote in some California counties and ineligible to vote in others.
'3. In order to remedy this lack of uniformity, authoritative guidelines from either the legislature or the courts are urgently needed.'
13
Our Brother MARSHALL argues in dissent that since the Supreme Court of California did not issue the peremptory writ of mandate, its opinion in this case is an advisory one which does not come within the 'case or controversy' requirement of Art. III of the Constitution. He also contends that that court's refusal to issue the
peremptory writ must rest on some unarticulated state ground, which he concludes should bar review of the federal constitutional question by this Court.
The Supreme Court of California has only recently noted its policy of avoiding advisory opinions on abstract questions of law, In re M., 3 Cal.3d 16, 89 Cal.Rptr. 33, 473 P.2d 737 (1970), while in the same opinion adverting to its 'declaratory use of habeas corpus in a number of cases' such as In re Gonsalves, 48 Cal.2d 638, 311 P.2d 483 (1957). In support of its determination in the case before us that exercise of its original jurisdiction would be appropriate, the Supreme Court of California cited Young v. Gnoss, 7 Cal.3d 18, 101 Cal.Rptr. 533, 496 P.2d 445 (1972). There it had exercised its original mandamus jurisdiction to conclude that the durational residence requirements for voting imposed by California law violated the Equal Protection Clause of the Fourteenth Amendment. Saying that its 'function at this time is simply to declare the minimum that must be done to implement Dunn v. Blumstein (405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972)),' 7 Cal.2d, at 27, 101 Cal.Rptr., at 539, 496 P.2d, at 451, the court refused to issue a peremptory writ of mandate in that case, just as it did here, saying that '(s)ince there is no reason to believe that any of the parties to this proceeding will not accede to our holdings herein, no purpose would be served by issuing a writ of mandate to compel such compliance with respect to the November 1972 general election. . . .' Id., at 29, 101 Cal.Rptr., at 541, 496 P.2d, at 453. United States courts of appeals, which are barred by the case-or-controversy requirement of Art. III from issuing advisory opinions, have nonetheless declined to issue peremptory writs against district judges on the assumption that the latter would abide by the opinion of the court of appeals without the compulsion of such a writ. In re United States, 257 F.2d 844 (CA5 1958); In re United States, 207 F.2d 567 (CA5 1953).
We think that the reliance of the Supreme Court of California on its earlier decision recognizing and approving the use of its original jurisdiction to grant declaratory relief, as well as its reliance on precedent in an original mandamus proceeding in which it reached the merits but declined to issue the peremptory writ where there
was no question of mootness, supports our conclusion that that court's judgment in this case is for all practical purposes at least a declaratory judgment. And it is well settled that, where there is 'an actual and acute controversy,' an appeal from a declaratory judgment of a state court presents a 'case or controversy' within this Court's jurisdiction. Nashville, C. & St. L.R. Co. v. Wallace, 288 U.S. 249, 53 S.Ct. 345, 77 L.Ed. 730 (1933). Indeed, any other conclusion would unnecessarily permit a state court of last resort, quite contrary to the intention of Congress in enacting 28 U.S.C. § 1257, to invalidate state legislation on federal constitutional grounds without any possibility of state officials who were adversely affected by the decision seeking review in this Court.
We are equally unable to accept the view of the dissenters that the California court's failure here to issue the peremptory writ must rest on that court's resolution of some unspecified state law question against petitioner. The mere failure of a state court to award peremptory relief in a proceeding which it treats as one for a declaratory judgment is not an 'adequate state ground' which precludes our review of its federal constitutional holding.
14
Ala.Const., Art. 6, § 5 (1819); Calif.Const., Art. 2, § 5 (1849); Conn.Const., Art. 6, § 3 (1818); Del.Const., Art. 4, § 1 (1831); Fla.Const., Art. 6, § 4 (1838); Ga.Const., Art. 2, § 6 (1868); Ill.Const., Art. 2, § 30 (1818); Ind.Const., Art. 6, § 4 (1816); Iowa Const., Art. 2, § 5 (1846); Kan.Const., Art. 5, § 2 (1859); Ky.Const., Art. 6, § 4 (1799); La.Const., Art. 6, § 4 (1812); Md.Const., Art. 1, § 5 (1851); Minn.Const., Art. 7, § 2 (1857); Miss.Const., Art. 6, § 5 (1817); Mo.,Const., Art. 3, § 14 (1820); Nev.Const., Art. 2, § 1 (1864); N.J.Const., Art. 2, § 1 (1844); N.Y.Const., Art. 2, § 2 (1821); N.C.Const., Art. 6, § 5 (1868); Ohio Const., Art. 4, § 4 (1802); Ore.Const., Art. 2, § 3 (1857); R.I.Const., Art. 2, § 4 (1842); S.C.Const., Art. 4 (1865); Tenn.Const., Art. 4, § 2 (1834); Tex.Const., Art. 7, § 4 (1845); Va.Const., Art. 3, § 14 (1830); W.Va.Const., Art. 3, § 1 (1863); Wis.Const., Art. 3, § 2 (1848).
1
The proceeding below was a petition for a writ of mandate in the California Supreme Court, hence the moving parties should properly be described as petitioners rather than plaintiffs. However, to avoid confusion, since the petitioners below are the respondents here and vice versa, the parties in the California court will be referred to herein simply as plaintiffs and defendants.
2
California Const., Art. II, § 1, provided, in part, that 'no person convicted of any infamous crime . . . shall ever exercise the privileges of an elector in this State.' Article II, § 1, was repealed by referendum at the November 7, 1972, general election and was replaced by a new Art. II, § 3, containing the same prohibition. The state implementing statutes include California Elections Code §§ 310, 321, 383, 389, 390, and 14240.
3
The Attorney General filed a separate petition for certiorari, No. 73—324, to review the judgment of the California Supreme Court. The Secretary of State filed a memorandum opposing that petition for certiorari. The petition was denied today, 418 U.S. 904, 94 S.Ct. 3194, 41 L.Ed.2d 1152.
4
The judgment of the California Supreme Court is by custom the final paragraph of its opinion. The alternative writ referred to is merely a show-cause order, requiring the respondent to comply with the petitioner's demand or show cause why it should not be ordered to do so.
5
See 5 B. Witkin, Cal.Proc.2d, Extraordinary Writs § 22, pp. 3796—3797, and § 123, p. 3899 (1971).
6
Calif.Code Civ.Proc. § 1060; see 15 Cal.Jur.2d, Declaratory Relief § 13; 3 B. Witkin Cal.Proc.2d, Pleading § 705(c), p. 2329 (1971); see, e.g., Dills v. Delira Corp., 145 Cal.App.2d 124, 129, 302 P.2d 397, 400 (1956).
The difference between 'mandamus and declaratory relief (is) that appellate courts cannot give the latter.' 5 B. Witkin, Cal.Proc.2d, Extraordinary Writs § 21, p. 3796 (1971).
7
In the first case relied on by the majority, In re M., 3 Cal.3d 16, 89 Cal.Rptr. 33, 473 P.2d 737 (1970), the California Supreme Court had previously granted a writ of habeas corpus which effectively mooted the petitioner's claim for relief. The court, nonetheless, later issued an opinion on the issue posed by the case while denying further relief. In a footnote, the court observed that as a general proposition, courts should avoid advisory opinions, but, in the very next sentence, reaffirmed its inherent discretion to issue such opinions. In the accompanying text, the court noted that it could render a decision in a moot case which would not be binding on a party before it, where the case involved issues of particular public importance. Although the court referred to its 'declaratory use of habeas corpus in a number of cases,' citing B. Witkin, Cal.Crim.Proc. § 790 (1963), and In re Fluery, 67 Cal.2d 600, 63 Cal.Rptr. 298, 432 P.2d 986 (1967), the Witkin treatise refers to the court's 'declaratory use of habeas corpus' and In re Fluery, supra, in particular, as examples of the 'use of the writ to render a purely advisory opinion unnecessary to the determination of the particular controversy.' B. Witkin, Cal.Crim.Proc., Habeas Corpus and Other Extraordinary Writs § 790, p. 247 (Supp. 1967).
The second case relied on by the majority is Young v. Gnoss, 7 Cal.3d 18, 101 Cal.Rptr. 533, 496 P.2d 445 (1972), cited by the court below solely for the proposition that mandamus is an appropriate remedy to seek in an original proceeding. In that case, the petitioners had sought mandamus relief from the application of a state durational residence requirement for voting in order that they might vote in a June primary. The California Supreme Court, in a lengthy opinion, indicated that the challenged requirement was unconstitutional on the authority of our decision in Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), but exercised its equitable discretion not to order a change in the residence requirements for the June primary because too little time remained for such a change to be implemented in an orderly fashion. Accordingly, mandamus relief was denied. The court recommended that the necessary changes in residence requirements be effected before the November election but did not so order to give the 'Legislature the opportunity to address itself to the problem . . ..' 7 Cal.3d, at 28, 101 Cal.Rptr., at 540—541, 496 P.2d, at 452—453. The court relied on its earlier decision in Legislature v. Reinecke, 6 Cal.3d 595, 99 Cal.Rptr. 481, 492 P.2d 385 (1972), where the court had expressed its views on a legislative reapportionment problem, denied a writ of mandate, and retained jurisdiction to allow the legislature an opportunity to act before providing any judicial relief.
Each of these cases involves examples of advisory opinions rather than declaratory relief. In the latter, what the California Supreme Court did was to provide some guidance to the legislature while staying its hand and not affording judicial relief for the claimed deprivation. It seems well settled that California courts have 'inherent discretion' to issue such advisory opinions. See 2 B. Witkin, Cal.Proc.2d, Actions § 44, p. 920 (1970); id., § 42, p. 916; 5 B. Witkin, Cal.Proc.2d, Extraordinary Writs § 117, p. 3894; cf. Kirstowsky v. Superior Court, 143 Cal.App.2d 745, 749, 300 P.2d 163, 166 (1956).
8
The Court has held, for example, that Art. III restricts standing to bring a class action to the actual members of the class. O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). The named plaintiffs here had been disenfranchised at the time they filed suit, and there is thus no question concerning their standing to challenge the California disenfranchisement provisions.
9
The Court distinguished its decision in Hall v. Beals, 396 U.S. 45, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969), finding a challenge to Colorado's durational residence requirement moot, on the grounds that, in Hall, there had been an intervening change in law reducing the residence requirements from six months to two while the case was on appeal. Accordingly, application of the six-month requirement was incapable of repetition as to the named plaintiff or any other member of his class, and, having never been disenfranchised thereby, the named plaintiff had no standing to challenge the two-month requirement.
10
The Court has found a live controversy in other voting cases in which intervening circumstances seemed to have mooted the named plaintiff's claim for relief. Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969), for example, was an appeal from a decision denying relief to appellants who had unsuccessfully sought to be certified, as required by state law, as independent candidates for Presidential elector on the 1968 ballot. Appellants asserted that the Illinois certification requirement violated the State's constitutional obligation not to discriminate against voters in less populous counties. By the time their appeal reached this Court, the 1968 election had already taken place, but we held the case was not moot because 'while the 1968 election is over, (the challenged burden) remains and controls future elections . . .,' id., at 816, 89 S.Ct., at 1494; see Hall v. Beals, supra, 396 U.S., at 49, 90 S.Ct., at 202, and the short span of time between the denial of certification for candidacy and actual balloting threatens to moot all future attacks on the questioned candidacy requirements. 394 U.S., at 816, 89 S.Ct., at 1494. See also Storer v. Brown, 415 U.S. 724, 737 n. 8, 94 S.Ct. 1274, 1282, 39 L.Ed.2d 714 (1974); Rosario v. Rockefeller, 410 U.S. 752, 756 n. 5, 93 S.Ct. 1245, 1249, 36 L.Ed.2d 1 (1973).
11
The extent of continuing disenfranchisement is apt to be minimal. A survey conducted by the Secretary of State of California indicated that the election officials of 52 of the 58 counties in California, representing counties which contain 97.39% of the registered voters in the State, agreed with the clerks in the named plaintiffs' counties that ex-felons should not be barred from voting in their counties. Brief for Respondents 30.
12
The Court's opinion cites our decision in Indiana Employment Security Div. v. Burney, 409 U.S. 540, 93 S.Ct. 883, 35 L.Ed.2d 62 (1973), for the proposition that unnamed class members may not be looked to in cases arising from the federal system, but the case does not support that proposition. Burney concerned a constitutional challenge to the termination of unemployment insurance benefits without a prior hearing. The only named class representative received a post-termination hearing at which she obtained a reversal of the initial determination of ineligibility and full retroactive benefits. The Court remanded for consideration of mootness. The jurisdictional issue in this Court revolved around whether the case presented issues 'capable of repetition, yet evading review.' The Court did not have to find the alleged constitutional deprivation incapable of repetition, hence was not concerned with the problem of whether a future application to the named class representative was required. Rather, it appeared that the prior-hearing issue was not one which would evade review. But see id., at 542—546, 93 S.Ct., at 884—886 (dissenting opinion). The Court reasoned that a post-termination hearing, afforded as a matter of course, would not invariably moot all claims for relief from members of the class. If the post-termination hearing did not result in an award of retroactive payments, as it had in the named plaintiff's case, a live and continuing controversy would be presented as to the insured's claim to the benefits allegedly wrongfully withheld pending the hearing. A case had already come to this Court in just such a posture, and the Court had summarily affirmed the judgment of the three-judge court. Torres v. New York State Department of Labor, 405 U.S. 949, 92 S.Ct. 1185, 31 L.Ed.2d 228 (1972), but see 410 U.S. 971, 93 S.Ct. 1446, 35 L.Ed.2d 707 (1973) (dissenting opinion to denial of rehearing). It was a failure to satisfy the 'evading review' element of the test that led the Court to remand Burney for consideration of mootness.
13
In the absence of such an order, petitioner Richardson is under no compulsion to register ex-felons in her county nor subject to any penalty for failing to do so. See Cal.Code Civ.Proc. § 1097 (1955).
14
The suit against petitioner, Richardson v. James, 1 Civ. 32283, is presently pending in Division 3 of the Court of Appeal for the First Appellate District of California.
15
If claims of the named plaintiffs are moot, the proper disposition of this case would seem to be to vacate the judgment of the California Supreme Court and remand for such proceedings as that court deems appropriate. Brockington v. Rhodes, 396 U.S. 41, 44, 90 S.Ct. 206, 208, 24 L.Ed.2d 209 (1969).
16
See, e.g., Note, Restoring the Ex-offender's Right to Vote: Background and Developments, 11 Am.Crim.L.Rev. 721, 746—747, n. 158 (1973).
17
Statement of Rep. Eckley, quoted, ante, at 46.
18
Bonfield, The Right to Vote and Judicial Enforcement of Section Two of the Fourteenth Amendment, 46 Cornell L.Q. 108, 109 (1960); H. Flack, The Adoption of the Fourteenth Amendment 98, 126 (1908); B. Kendrick, Journal of the Joint Committee of Fifteen on Reconstruction 290—291 (1914); J. James, The Framing of the Fourteenth Amendment 185 (1956); Van Alstyne, The Fourteenth Amendment, the 'Right' to Vote, and the Understanding of the Thirty-ninth Congress, 1965 Sup.Ct.Rev. 33, 44 (1965).
19
James, n. 18, supra, at 138—139.
20
Kendrick, n. 18, supra, at 291; cf. Flack, n. 18, supra, at 111, 118.
21
Bonfield, n. 18, supra, at 111; James, n. 18, supra, at 185; Van Alstyne, n. 18, supra, at 43—44, 58, 65.
22
Id., at 43—44 (quoting from Mathews, Legislative and Judicial History of the Fifteenth Amendment (1909)).
23
Id., at 65.
24
To say that § 2 of the Fourteenth Amendment is a direct limitation on the protection afforded voting rights by § 1 leads to absurd results. If one accepts the premise that § 2 authorizes disenfranchisement for any crime, the challenged California provision could, as the California Supreme Court has observed, require disenfranchisement for seduction under promise of marriage, or conspiracy to operate a motor vehicle without a muffler. Otsuka v. Hite, 64 Cal.2d 596, 51 Cal.Rptr. 284, 414 P.2d 412 (1966). Disenfranchisement extends to convictions for vagrancy in Alabama or breaking a water pipe in North Dakota, to note but two examples. Note, Disenfranchisement of Ex-felons: A Reassessment, 25 Stan.L.Rev. 845, 846 (1973). Even a jaywalking or traffic conviction could conceivably lead to disenfranchisement, since § 2 does not differentiate between felonies and misdemeanors.
25
Memorandum of the Secretary of State of California in Opposition to Certiorari, in Class of County Clerks and Registrars of Voters of California v. Ramirez, No. 73—324.
26
Ramirez v. Brown, 9 Cal.3d 199, 215—216, 107 Cal.Rptr. 137, 147—148, 507 P.2d 1345, 1355—1356 (1973).
27
The Court also notes that the disenfranchisement of ex-felons has received support in the dicta of this Court and that we have only recently affirmed without opinion the decisions of two three-judge District Courts upholding disenfranchisement provisions. Fincher v. Scott, 352 F.Supp. 117 (MDNC 1972), aff'd per curiam, 411 U.S. 961, 94 S.Ct. 2151, 36 L.Ed.2d 681 (1973); Beacham v. Braterman, 300 F.Supp. 182 (SD Fla.), aff'd mem., 396 U.S. 12, 90 S.Ct. 153, 24 L.Ed.2d 11 (1969). But, dictum is not precedent and as Mr. Justice Rehnquist has only recently reminded us, summary affirmances are obviously not of the same precedential value as would be an opinion of this Court treating the question on the merits. Edelman v. Jordan, 415 U.S. 651, 671, 94 S.Ct. 1347, 1359, 39 L.Ed.2d 662 (1974). See F. Frankfurter & J. Landis, The Business of the Supreme Court at October Term, 1929, 44 Harv.L.Rev. 1, 14 (1930).
28
The following States do not disenfranchise all former felons: Arkansas, Ark.Stat.Ann. § 3—707 (Supp.1973); Colorado, Colo.Const., Art. VII, § 10, and Colo.Rev.Stat.Ann. § 49—3—2 (Perm.Cum.Supp.1971); Florida, Fla.Stat.Ann. § 940.05 (1973); Hawaii, Hawaii Rev.Stat. § 716—5 (Supp.1972); Illinois, Ill.Rev.Stat., c. 46, § 3—5 (1973); Indiana, IC 1971, 3—1—21—4, Ind.Ann.Stat. § 29—4804 (1969); Kansas, Kan.Stat.Ann. § 22—3722 (Supp.1973); Maine, Me.Rev.Stat.Ann., Tit. 21, § 245 (1964); Massachusetts, Mass.Gen.Laws Ann., c. 51, § 1 (Supp.1974—
1975) (except election code offenders); Michigan, Mich.Const., Art. II, § 2 and Mich.Comp.Laws Ann. § 168.10 (1970); Minnesota, Minn.Stat. § 609.165 (1971); Nebraska, Neb.Rev.Stat. § 29—2264 (Supp.1972) and Neb.Rev.Stat. § 83—1118 (1971); New Hampshire, N.H.Rev.Stat.Ann. § 607—A:2 (Supp.1973); New Jersey, N.J.Stat.Ann. § 19:4—1 (Supp.1974—1975) (except election code offenders); Ohio Rev.Code Ann. § 2967.16 (Supp.1972); Oregon, Ore.Rev.Stat. §§ 137.240 and 137.250 (1973); Pennsylvania, Pa.Const., Art. VII, § 1, Pa.Stat.Ann. Tit. 19, § 893 (1964), and Tit. 25, § 3552 (1963) (except election code offenders for four years); South Dakota, S.D.Comp.Laws Ann. §§ 24—5—2 and 23—57—7 (1969); Utah, Utah Const., Art. IV, § 6 (except those convicted of treason or election code offenses); Vermont, Vt.Const., c. II, § 51 (except election code offenders); Washington, Wash.Rev.Code Ann. § 9.96.050 (Supp.1972); West Virginia, 51 Op.W.Va.Atty.Gen. No. 42, p. 182 (1965) (construing W.Va.Const., Art. IV, § 1); Wisconsin, Wis.Stat.Ann. § 57—078 (Supp.1974—1975); Wyoming, Wyo.Stat.Ann. § 7—311 (1957).
In 1972 Montana amended its constitution to disenfranchise potential electors only while 'serving a sentence for a felony.' Mont.Const., Art. IV, § 2; Mont.Rev.Codes Ann. § 23—2701 (Supp.1973). In 1973, New York amended its laws to allow former felons whose sentence had expired or who were released from parole to vote. N.Y. Election Law § 152 (Supp.1973—1974). Also in 1973, North Carolina amended its laws to restore all civil rights including the franchise to former felons discharged from prison or parole. N.C.Gen.Stat. § 13—1 (Supp.1973). And, in the same year, the Tennessee Legislature amended its ex-felon disen-Franchisement statutes. See Tenn.Code Ann. § 2—202 (Supp.1973).
The New York ex-felon disenfranchisement provision was upheld in Green v. Board of Elections, 380 F.2d 445 (CA2 1967), and shortly thereafter the New York Legislature repealed that law. N.Y. Election Law § 152 (Supp.1973—1974). Similarly the Florida disenfranchisement provisions were upheld in Beacham v. Braterman, 300 F.Supp. 182 (SD Fla.), aff'd per curiam, 396 U.S. 12, 90 S.Ct. 153, 24 L.Ed.2d 11 (1969). Subsequently, Florida statutes were amended to provide for the automatic restoration of all civil rights, including the franchise, upon the completion of sentence or release from parole or probation. Fla.Stat.Ann. § 940.05 (1973).
29
National Conference of Commissioners on Uniform State Laws, Uniform Act on Status of Convicted Persons §§ 2—3 (1964).
30
American Law Institute, Model Penal Code § 306.3 (Proposed Official Draft 1962).
31
National Probation and Parole Association, Standard Probation and Parole Act §§ 12 and 27 (1955).
32
National Advisory Commission on Criminal Justice Standards and Goals, Corrections, Standard 16.17, p. 592 (1973). The Report observed:
'Loss of citizenship rights—(including) the right to vote . . .—inhibits reformative efforts. If correction is to reintegrate an offender into free society, the offender must retain all attributes of citizenship. In addition, his respect for law and the legal system may well depend, in some measure, on his ability to participate in that system. Mandatory denials of that participation serve no legitimate public interest.' Id., at 593.
33
President's Commission on Law Enforcement and the Administration of Justice, Task Force Report: Corrections 89—90 (1967): '(T)here seems no justification for permanently depriving all convicted felons of the vote . . .. (T)o be deprived of the right to representation in a democratic society is an important symbol. Moreover, rehabilitation might be furthered by encouraging convicted persons to participate in society by exercising the vote.'
34
California League of Women Voters, Policy Statement, Feb. 16, 1972.
35
National Democratic Party, Party Platform 1972.
36
Memorandum of the Secretary of State of California in Opposition to Certiorari in Class of County Clerks and Registrars of Voters of California v. Ramirez, No. 73—324.
| 12
|
418 U.S. 323
94 S.Ct. 2997
41 L.Ed.2d 789
Elmer GERTZ, Petitioner,v.ROBERT WELCH, INC.
No. 72—617.
Argued Nov. 14, 1973.
Decided June 25, 1974.
Syllabus
A Chicago policeman named Nuccio was convicted of murder. The victim's family retained petitioner, a reputable attorney, to represent them in civil litigation against Nuccio. An article appearing in respondent's magazine alleged that Nuccio's murder trial was part of a Communist conspiracy to discredit the local police, and it falsely stated that petitioner had arranged Nuccio's 'frameup,' implied that petitioner had a criminal record, and labeled him a 'Communist-fronter.' Petitioner brought this diversity libel action against respondent. After the jury returned a verdict for petitioner, the District Court decided that the standard enunciated in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, which bars media liability for defamation of a public official absent proof that the defamatory statements were published with knowledge of their falsity or in reckless disregard of the truth, should apply to this suit. The court concluded that that standard protects media discussion of a public issue without regard to whether the person defamed is a public official as in New York Times Co. v. Sullivan, supra, or a public figure, as in Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094. The court found that petitioner had failed to prove knowledge of falsity or reckless disregard for the truth and therefore entered judgment n.o.v. for respondent. The Court of Appeals affirmed. Held:
1. A publisher or broadcaster of defamatory falsehoods about an individual who is neither a public official nor a public figure may not claim the New York Times protection against liability for defamation on the ground that the defamatory statements concern an issue of public or general interest. Pp. 339—348.
(a) Because private individuals characteristically have less effective opportunities for rebuttal than do public officials and public figures, they are more vulnerable to injury from defamation. Because they have not voluntarily exposed themselves to increased risk of injury from defamatory falsehoods, they are also more deserving of recovery. The state interest in compensating injury to the reputation of private individuals is therefore greater than for public officials and public figures. Pp. 343—345.
(b) To extend the New York Times standard to media defamation of private persons whenever an issue of general or public interest is involved would abridge to an unacceptable degree the legitimate state interest in compensating private individuals for injury to reputation and would occasion the additional difficulty of forcing courts to decide on an ad hoc basis which publications and broadcasts address issues of general or public interest and which do not. Pp. 345—346.
(c) So long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood which injures a private individual and whose substance makes substantial danger to reputation apparent. Pp. 347—348.
2. The States, however, may not permit recovery of presumed or punitive damages when liability is not based on knowledge of falsity or reckless disregard for the truth, and the private defamation plaintiff who establishes liability under a less demanding standard than the New York Times test may recover compensation only for actual injury. Pp. 348—350.
3. Petitioner was neither a public official nor a public figure. Pp. 351—352.
(a) Neither petitioner's past service on certain city committees nor his appearance as an attorney at the coroner's inquest into the death of the murder victim made him a public official. P. 351.
(b) Petitioner was also not a public figure. Absent clear evidence of general fame or notoriety in the community and pervasive involvement in ordering the affairs of society, an individual should not be deemed a public figure for all aspects of his life. Rather, the public-figure question should be determined by reference to the individual's participation in the particular controversy giving rise to the defamation. Petitioner's role in the Nuccio affair did not make him a public figure. Pp. 351—352.
7 Cir., 471 F.2d 801, reversed and remanded.
Wayne B. Giampietro, Chicago, Ill., for petitioner.
Clyde J. Watts, Oklahoma City, Okl., for respondent.
Mr. Justice POWELL delivered the opinion of the Court.
1
This Court has struggled for nearly a decade to define the proper accommodation between the law of defamation and the freedoms of speech and press protected by the First Amendment. With this decision we return to that effort. We granted certiorari to reconsider the extent of a publisher's constitutional privilege against liability for defamation of a private citizen. 410 U.S. 925, 93 S.Ct. 1355, 35 L.Ed.2d 585 (1973).
2
* In 1968 a Chicago policeman named Nuccio shot and killed a youth named Nelson. The state authorities prosecuted Nuccio for the homicide and ultimately obtained a conviction for murder in the second degree. The Nelson family retained petitioner Elmer Gertz, a reputable attorney, to represent them in civil litigation against Nuccio.
3
Respondent publishes American Opinion, a monthly outlet for the views of the John Birch Society. Early in the 1960's the magazine began to warn of a nationwide conspiracy to discredit local law enforcement agencies and create in their stead a national police force capable of supporting a Communist dictatorship. As part of the continuing effort to alert the public to this assumed danger, the managing editor of American Opinion commissioned an article on the murder trial of Officer Nuccio. For this purpose he engaged a regular contributor to the magazine. In March 1969 respondent published the resulting article under the title 'FRAME-UP: Richard Nuccio And The War On Police.' The article purports to demonstrate that the testimony against Nuccio at his criminal trial was false and that his prosecution was part of the Communist campaign against the police.
4
In his capacity as counsel for the Nelson family in the civil litigation, petitioner attended the coroner's inquest into the boy's death and initiated actions for damages, but he neither discussed Officer Nuccio with the press nor played any part in the criminal proceeding. Notwithstanding petitioner's remote connection with the prosecution of Nuccio, respondent's magazine portrayed him as an architect of the 'frame-up.' According to the article, the police file on petitioner took 'a big, Irish cop to lift.' The article stated that petitioner had been an official of the 'Marxist League for Industrial Democracy, originally known as the Intercollegiate Socialist Society, which has advocated the violent seizure of our government.' It labeled Gertz a 'Leninist' and a 'Communist-fronter.' It also stated that Gertz had been an officer of the National Lawyers Guild, described as a Communist organization that 'probably did more than any other outfit to plan the Communist attack on the Chicago police during the 1968 Democratic Convention.'
5
These statements contained serious inaccuracies. The implication that petitioner had a criminal record was false. Petitioner had been a member and officer of the National Lawyers Guild some 15 years earlier, but there was no evidence that he or that organization had taken any part in planning the 1968 demonstrations in Chicago. There was also no basis for the charge that petitioner was a 'leninist' or a 'Communist-fronter.' And he had never been a member of the 'Marxist League for Industrial Democracy' or the 'Intercollegiate Socialist Society.' The managing editor of American Opinion made no effort to verify or substantiate the charges against petitioner. Instead, he appended an editorial introduction stating that the author had 'conducted extensive research into the Richard Nuccio Case.' And he included in the article a photograph of petitioner and wrote the caption that appeared under it: 'Elmer Gertz of Red Guild harasses Nuccio.' mespondent placed the issue of American Opinion containing the article on sale at newsstands throughout the country and distributed reprints of the article on the streets of Chicago.
6
Petitioner filed a diversity action for libel in the United States District Court for the Northern District of Illinois. He claimed that the falsehoods published by respondent injured his reputation as a lawyer and a citizen. Before filing an answer, respondent moved to dismiss the complaint for failure to state a claim upon which relief could be granted, apparently on the ground that petitioner failed to allege special damages. But the court ruled that statements contained in the article constituted libel per se under Illinois law and that consequently petitioner need not plead special damages. 306 F.Supp. 310 (1969).
7
After answering the complaint, respondent filed a pretrial motion for summary judgment, claiming a constitutional privilege against liability for defamation.1 It asserted that petitioner was a public official or a public figure and that the article concerned an issue of public interest and concern. For these reasons, respondent argued, it was entitled to invoke the privilege enunciated in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Under this rule respondent would escape liability unless petitioner could prove publication of defamatory falsehood 'with 'actual malice'—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.' Id., at 279 280, 84 S.Ct., at 726. Respondent claimed that petitioner could not make such a showing and submitted a supporting affidavit by the magazine's managing editor. The editor denied any knowledge of the falsity of the statements concerning petitioner and stated that he had relied on the author's reputation and on his prior experience with the accuracy and authenticity of the author's contributions to American Opinion.
8
The District Court denied respondent's motion for summary judgment in a memorandum opinion of September 16, 1970. The court did not dispute respondent's claim to the protection of the New York Times standard. Rather, it concluded that petitioner might overcome the constitutional privilege by making a factual showing sufficient to prove publication of defamatory falsehood in reckless disregard of the truth. During the course of the trial, however, it became clear that the trial court had not acceped all of respondent's asserted grounds for applying the New York Times rule to this case. It thought that respondent's claim to the protection of the constitutional privilege depended on the contention that petitioner was either a public official under the New York Times decision or a public figure under Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), apparently discounting the argument that a privilege would arise from the presence of a public issue. After all the evidence had been presented but before submission of the case to the jury, the court ruled in effect that petitioner was neither a public official nor a public figure. It added that, if he were, the resulting application of the New York Times standard would require a directed verdict for respondent. Because some statements in the article constituted libel per se under Illinois law, the court submitted the case to the jury under instructions that withdrew from its consideration all issues save the measure of damages. The jury awarded $50,000 to petitioner.
9
Following the jury verdict and on further reflection, the District Court concluded that the New York Times standard should govern this case even though petitioner was not a public official or public figure. It accepted respondent's contention that that privilege protected discussion of any public issue without regard to the status of a person defamed therein. Accordingly, the court entered judgment for respondent notwithstanding the jury's verdict.2 This conclusion anticipated the reasoning of a plurality of this Court in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971).
10
Petitioner appealed to contest the applicability of the New York Times standard to this case. Although the Court of Appeals for the Seventh Circuit doubted the correctness of the District Court's determination that petitioner was not a public figure, it did not overturn that finding.3 It agreed with the District Court that respondent could assert the constitutional privilege because the article concerned a matter of public interest, citing this Court's intervening decision in Rosenbloom v. Metromedia, Inc., supra. The Court of Appeals read Rosenbloom to require application of the New York Times standard to any publication or broadcast about an issue of significant public interest, without regard to the position, fame, or anonymity of the person defamed, and it concluded that respondent's statements concerned such an issue.4 After reviewing the record, the Court of Appeals endorsed the District Court's conclusion that petitioner had failed to show by clear and convincing evidence that respondent had acted with 'actual malice' as defined by New York Times. There was no evidence that the managing editor of American Opinion knew of the falsity of the accusations made in the article. In fact, he knew nothing about petitioner except what he learned from the article. The court correctly noted that mere proof of failure to investigate, without more, cannot establish reckless disregard for the truth. Rather, the publisher must act with a "high degree of awareness of . . . probable falsity." St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968); accord, Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 84—85, 88 S.Ct. 197, 199 200, 19 L.Ed.2d 248 (1967); Garrison v. Louisiana, 379 U.S. 64, 75 76, 85 S.Ct. 209, 212, 216—217, 13 L.Ed.2d 125 (1964). The evidence in this case did not reveal that respondent had cause for such an awareness. The Court of Appeals therefore affirmed, 471 F.2d 801 (1972). For the reasons stated below, we reverse.
II
11
The principal issue in this case is whether a newspaper or broadcaster that publishes defamatory falsehoods about an individual who is neither a public official nor a public figure may claim a constitutional provilege against liability for the injury inflicted by those statements. The Court considered this question on the rather different set of facts presented in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971). Rosenbloom, a distributor of nudist magazines, was arrested for selling allegedly obscene material while making a delivery to a retail dealer. The police obtained a warrant and seized his entire inventory of 3,000 books and magazines. He sought and obtained an injunction prohibiting further police interference with his business. He then sued a locl radio station for failing to note in two of its newscasts that the 3,000 items seized were only 'reportedly' or 'allegedly' obscene and for broadcasting references to 'the smut literature racket' and to 'girlie-book peddlers' in its coverage of the court proceeding for injunctive relief. He obtained a judgment against the radio station, but the Court of Appeals for the Third Circuit held the New York Times privilege applicable to the broadcast and reversed. 415 F.2d 892 (1969).
12
This Court affirmed the decision below, but no majority could agree on a controlling rationale. The eight Justices5 who participated in Rosenbloom announced their views in five separate opinions, none of which commanded more than three votes. The several statements not only reveal disagreement about the appropriate result in that case, they also reflect divergent traditions of thought about the general problem of reconciling the law of defamation with the First Amendment. One approach has been to extend the New York Times test to an expanding variety of situations. Another has been to vary the level of constitutional privilege for defamatory falsehood with the status of the person defamed. And a third view would grant to the press and broadcast media absolute immunity from liability for defamation. To place our holding in the proper context, we preface our discussion of this case with a review of the several Rosenbloom opinions and their antecedents.
13
In affirming the trial court's judgment in the instant case, the Court of Appeals relied on Mr. Justice Brennan's conclusion for the Rosenbloom plurality that 'all discussion and communication involving matters of public or general concern,' 403 U.S., at 44, 91 S.Ct., at 1820, warrant the protection from liability for defamation accorded by the rule originally enunciated in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). There this Court defined a constitutional privilege intended to free criticism of public officials from the restraints imposed by the common law of defamation. The Times ran a political advertisement endorsing civil rights demonstrations by black students in Alabama and impliedly condemning the performance of local law-enforcement officials. A police commissioner established in state court that certain misstatements in the advertisement referred to him and that they constituted libel per se under Alabama law. This showing left the Times with the single defense of truth, for under Alabama law neither good faith nor reasonable care would protect the newspaper from liability. This Court concluded that a 'rule compelling the critic of official conduct to guarantee the truth of all his factual assertions' would deter protected speech, id., at 279, 84 S.Ct., at 725, and announced the constitutional privilege designed to counter that effect:
14
'The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.' Id., at 279—280, 84 S.Ct. at 726.6
15
Three years after New York Times, a majority of the Court agreed to extend the constitutional privilege to defamatory criticism of 'public figures.' This extension was announced in Curtis Publishing Co. v. Butts and its companion, Associated Press v. Walker, 388 U.S. 130, 162, 87 S.Ct. 1975, 1995, 18 L.Ed.2d 1094 (1967). The first case involved the Saturday Evening Post's charge that Coach Wally Butts of the University of Georgia had conspired with Coach 'Bear' Bryant of the University of Alabama to fix a football game between their respective schools. Walker involved an erroneous Associated Press account of former Major General Edwin Walker's participation in a University of Mississippi campus riot. Because Butts was paid by a private alumni association and Walker had resigned from the Army, neither could be classified as a 'public official' under New York Times. Although Mr. Justice Harlan announced the result in both cases, a majority of the Court agreed with Mr. Chief Justice Warren's conclusion that the New York Times test should apply to criticism of 'public figures' as well as 'public officials.'7 The Court extended the constitutional privilege announced in that case to protect defamatory criticism of nonpublic persons who 'are nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.' Id., at 164, 87 S.Ct., at 1996 (Warren, C.J., concurring in result).
16
In his opinion for the plurality in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), Mr. Justice Brennan took the New York Times privilege one step further. He concluded that its protection should extend to defamatory falsehoods relating to private persons if the statements concerned matters of general or public interest. He abjured the suggested distinction between public officials and public figures on the one hand and private individuals on the other. He focused instead on society's interest in learning about certain issues: 'If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not 'voluntarily' choose to become involved.' Id., at 43, 91 S.Ct., at 1819. Thus, under the plurality opinion, a private citizen involuntarily associated with a matter of general interest has no recourse for injury to his reputation unless he can satisfy the demanding requirements of the New York Times test.
17
Two members of the Court concurred in the result in Rosenbloom but departed from the reasoning of the plurality. Mr. Justice Black restated his view, long shared by Mr. Justice Douglas, that the First Amendment cloaks the news media with an absolute and indefeasible immunity from liability for defamation. Id., at 57, 91 S.Ct., at 1826. Mr. Justice White concurred on a narrower ground. Ibid. He concluded that 'the First Amendment gives the press and the broadcast media a privilege to report and comment upon the official actions of public servants in full detail, with no requirement that the reputation or the privacy of an individual involved in or affected by the official action be spared from public view.' Id., at 62, 91 S.Ct., at 1829. He therefore declined to reach the broader questions addressed by the other Justices.
18
Mr. Justice Harlan dissented. Although he had joined the opinion of the Court in New York Times, in Curtis Publishing Co. he had contested the extension of the privilege to public figures. There he had argued that a public figure who held no governmental office should be allowed to recover damages for defamation 'on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.' 388 U.S., at 155, 87 S.Ct., at 1991. In his Curtis Publishing Co. opinion Mr. Justice Harlan had distinguished New York Times primarily on the ground that defamation actions by public officials 'lay close to seditious libel . . .' Id., at 153, 87 S.Ct., at 1990. Recovery of damages by one who held no public office, however, could not 'be viewed as a vindication of governmental policy.' Id., at 154, 87 S.Ct., at 1991. Additionally, he had intimated that, because most public officials enjoyed absolute immunity from liability for their own defamatory utterances under Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), they lacked a strong claim to the protection of the courts.
19
In Rosenbloom Mr. Justice Harlan modified these views. He acquiesced in the application of the privilege to defamation of public figures but argued that a different rule should obtain where defamatory falsehood harmed a private individual. He noted that a private person has less likelihood 'of securing access to channels of communication sufficient to rebut falsehoods concerning him' than do public officials and public figures, 403 U.S., at 70, 91 S.Ct., at 1833 and has not voluntarily placed himself in the public spotlight. Mr. Justice Harlan concluded that the States could constitutionally allow private individuals to recover damages for defamation on the basis of any standard of care except liability without fault.
20
Mr. Justice Marshall dissented in Rosenbloom in an opinion joined by Mr. Justice Stewart. Id., at 78, 91 S.Ct., at 1836. He thought that the plurality's 'public or general interest' test for determining the applicability of the New York Times provilege would involve the courts in the dangerous business of deciding 'what information is relevant to self-government.' Id., at 79, 91 S.Ct., at 1837. He also contended that the plurality's position inadequately served 'society's interest in protecting private individuals from being thrust into the public eye by the distorting light of defamation.' Ibid. Mr. Justice Marshall therefore reached the conclusion, also reached by Mr. Justice Harlan, that the States should be 'essentially free to continue the evolution of the common law of defamation and to articulate whatever fault standard best suits the State's need,' so long as the States did not impose liability without fault. Id., at 86, 91 S.Ct., at 1841. The principal point of disagreement among the three dissenters concerned punitive damages. Whereas Mr. Justice Harlan thought that the States could allow punitive damages in amounts bearing 'a reasonable and purposeful relationship to the actual harm done . . .,' id., at 75, 91 S.Ct., at 1835, Mr. Justice Marshall concluded that the size and unpredictability of jury awards of exemplary damages unnecessarily exacerbated the problems of media self-censorship and that such damages should therefore be forbidden.
III
21
We begin with the common ground. Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.8 But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society's interest in 'uninhibited, robust, and wide-open' debate on public issues. New York Times Co. v. Sullivan, 376 U.S., at 270, 84 S.Ct., at 721. They belong to that category of utterances which '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.' Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942).
22
Although the erroneous statement of fact is not worthy of constitutional protection, it is nevertheless inevitable in free debate. As James Madison pointed out in the Report on the Virginia Resolutions of 1798: 'Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press.' 4 J. Elliot, Debates on the Federal Constitution of 1787, p. 571 (1876). And punishment of error runs the risk of inducing a cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and press. Our decisions recognize that a rule of strict liability that compels a publisher or broadcaster to guarantee the accuracy of his factual assertions may lead to intolerable self-censorship. Allowing the media to avoid liability only by proving the truth of all injurious statements does not accord adequate protection to First Amendment liberties. As the Court stated in New York Times Co. v. Sullivan, supra, 376 U.S., at 279, 84 S.Ct., at 725: 'Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred.' The First Amendment requires that we protect some falsehood in order to protect speech that matters.
23
The need to avoid self-censorship by the news media is, however, not the only societal value at issue. If it were, this Court would have embraced long ago the view that publishers and broadcasters enjoy an unconditional and indefeasible immunity from liability for defamation. See New York Times Co. v. Sullivan, supra, at 293, 84 S.Ct., at 733 (Black, J., concurring); Garrison v. Louisiana, 379 U.S., at 80, 85 S.Ct., at 218 (1964) (Douglas, J., concurring); Curtis Publishing Co. v. Butts, 388 U.S., at 170, 87 S.Ct., at 1999 (opinion of Black, J.). Such a rule would, indeed, obviate the fear that the prospect of civil liability for injurious falsehood might dissuade a timorous press from the effective exercise of First Amendment freedoms. Yet absolute protection for the communications media requires a total sacrifice of the competing value served by the law of defamation.
24
The legitimate state interest underlying the law of libel is the compensation of individuals for the harm inflicted on them by defamatory falsehood. We would not lightly require the State to abandon this purpose, for, as Mr. Justice Stewart has reminded us, the individual's right to the protection of his own good name
25
'reflects no more than our basic concept of the essential dignity and worth of every human being—a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system.' Rosenblatt v. Baer, 383 U.S. 75, 92, 86 S.Ct. 669, 679, 15 L.Ed.2d 597 (1966) (concurring opinion).
26
Some tension necessarily exists between the need for a vigorous and uninhibited press and the legitimate interest in redressing wrongful injury. As Mr. Justice Harlan stated, 'some antithesis between freedom of speech and press and libel actions persists, for libel remains premised on the content of speech and limits the freedom of the publisher to express certain sentiments, at least without guaranteeing legal proof of their substantial accuracy.' Curtis Publishing Co. v. Butts, supra, 388 U.S., at 152, 87 S.Ct., at 1990. In our continuing effort to define the proper accommodation between these competing concerns, we have been especially anxious to assure to the freedoms of speech and press that 'breathing space' essential to their fruitful exercise. NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963). To that end this Court has extended a measure of strategic protection to defamatory falsehood.
27
The New York Times standard defines the level of constitutional protection appropriate to the context of defamation of a public person. Those who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public's attention, are properly classed as public figures and those who hold governmental office may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth. This standard administers an extremely powerful antidote to the inducement to media self-censorship of the common-law rule of strict liability for libel and slander. And it exacts a correspondingly high price from the victims of defamatory falsehood. Plainly many deserving plaintiffs, including some intentionally subjected to injury, will be unable to surmount the barrier of the New York Times test. Despite this substantial abridgment of the state law right to compensation for wrongful hurt to one's reputation, the Court has concluded that the protection of the New York Times privilege should be available to publishers and broadcasters of defamatory falsehood concerning public officials and public figures. New York Times Co. v. Sullivan, supra; Curtis Publishing Co. v. Butts, supra. We think that these decisions are correct, but we do not find their holdings justified solely by reference to the interest of the press and broadcast media in immunity from liability. Rather, we believe that the New York Times rule states an accommodation between this concern and the limited state interest present in the context of libel actions brought by public persons. For the reasons stated below, we conclude that the state interest in compensating injury to the reputation of private individuals requires that a different rule should obtain with respect to them.
28
Theoretically, of course, the balance between the needs of the press and the individual's claim to compensation for wrongful injury might be struck on a case-by-case basis. As Mr. Justice Harlan hypothesized, 'it might seem, purely as an abstract matter, that the most utilitarian approach would be to scrutinize carefully every jury verdict in every libel case, in order to ascertain whether the final judgment leaves fully protected whatever First Amendment values transcend the legitimate state interest in protecting the particular plaintiff who prevailed.' Rosenbloom v. Metromedia, Inc., 403 U.S., at 63, 91 S.Ct., at 1829 (footnote omitted). But this approach would lead to unpredictable results and uncertain expectations, and it could render our duty to supervise the lower courts unmanageable. Because an ad hoc resolution of the competing interests at stake in each particular case is not feasible, we must lay down broad rules of general application. Such rules necessarily treat alike various cases involving differences as well as similarities. Thus it is often true that not all of the considerations which justify adoption of a given rule will obtain in each particular case decided under its authority.
29
With that caveat we have no difficulty in distinguishing among defamation plaintiffs. The first remedy of any victime of defamation is self-help—using available opportunities to contradict the lie or correct the error and thereby to minimize its adverse impact on reputation. Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements then private individuals normally enjoy.9 Private individuals are therefore more vulnerable to injury, and the state interest in protecting them is correstpondingly greater.
30
More important than the likelihood that private individuals will lack effective opportunities for rebuttal, there is a compelling normative consideration underlying the distinction between public and private defamation plaintiffs. An individual who decides to seek governmental office must accept certain necessary consequences of that involvement in public affairs. He runs the risk of closer public scrutiny than might otherwise be the case. And society's interest in the officers of government is not strictly limited to the formal discharge of official duties. As the Court pointed out in Garrison v. Louisiana, 379 U.S., at 77, 85 S.Ct., at 217, the public's interest extends to 'anything which might touch on an official's fitness for office. . . . Few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the official's private character.'
31
Those classed as public figures stand in a similar position. Hypothetically, it may be possible for someone to become a public figure through no purposeful action of his own, but the instances of truly involuntary public figures must be exceedingly rare. For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment.
32
Even if the foregoing generalities do not obtain in every instance, the communications media are entitled to act on the assumption that public officials and public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them. No such assumption is justified with respect to a rpivate individual. He has not accepted public office or assumed an 'influential role in ordering society.' Curtis Publishing Co. v. Butts, 388 U.S., at 164, 87 S.Ct., at 1996 (Warren, C.J., concurring in result). He has relinquished no part of his interest in the protection of his own good name, and consequently he has a more compelling call on the courts for redress of injury inflicted by defamatory falsehood. Thus, private individuals are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery.
33
For these reasons we conclude that the States should retain substantial latitude in their efforts to enforce a legal remedy for defamatory falsehood injurious to the reputation of a private individual. The extension of the New York Times test proposed by the Rosenbloom plurality would abridge this legitimate state interest to a degree that we find unacceptable. And it would occasion the additional difficulty of forcing state and federal judges to decide on an ad hoc basis which publications address issues of 'general or public interest' and which do not—to determine, in the words of Mr. Justice Marshall, 'what information is relevant to self-government.' Rosenbloom v. Metromedia, Inc., 403 U.S., at 79, 91 S.Ct., at 1837. We doubt the wisdom of committing this task to the conscience of judges. Nor does the Constitution require us to draw so thin a line between the drastic alternatives of the New York Times privilege and the common law of strict liability for defamatory error. The 'public or general interest' test for determining the applicability of the New York Times standard to private defamation actions inadequately serves both of the competing values at stake. On the one hand, a private individual whose reputation is injured by defamatory falsehood that does concern an issue of public or general interest has no recourse unless he can meet the rigorous requirements of New York Times. This is true despite the factors that distinguish the state interest in compensating private individuals from the analogous interest involved in the context of public persons. On the other hand, a publisher or broadcaster of a defamatory error which a court deems unrelated to an issue of public or general interest may be held liable in damages even if it took every reasonable precaution to ensure the accuracy of its assertions. And liability may far exceed compensation for any actual injury to the plaintiff, for the jury may be permitted to presume damages without proof of loss and even to award punitive damages.
34
We hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.10 This approach provides a more equitable boundary between the competing concerns involved here. It recognizes the strength of the legitimate state interest in compensating private individuals for wrongful injury to reputation, yet shields the press and broadcast media from the rigors of strict liability for defamation. At least this conclusion obtains where, as here, the substance of the defamatory statement 'makes substantial danger to reputation apparent.'11 This phrase places in perspective the conclusion we announce today. Our inquiry would involve considerations somewhat different from those discussed above if a State purported to condition civil liability on a factual misstatement whose content did not warn a reasonably prudent editor or broadcaster of its defamatory potential. Cf. Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967). Such a case is not now before us, and we intimate no view as to its proper resolution.
IV
35
Our accommodation of the competing values at stake in defamation suits by private individuals allows the States to impose liability on the publisher or broadcaster of defamatory falsehood on a less demanding showing than that required by New York Times. This conclusion is not based on a belief that the considerations which prompted the adoption of the New York Times privilege for defamation of public officials and its extension to public figures are wholly inapplicable to the context of private individuals. Rather, we endorse this approach in recognition of the strong and legitimate state interest in compensating private individuals for injury to reputation. But this countervailing state interest extends no further than compensation for actual injury. For the reasons stated below, we hold that the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.
36
The common law of defamation is an oddity of tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss. Under the traditional rules pertaining to actions for libel, the existence of injury is presumed from the fact of publication. Juries may award substantial sums as compensation for supposed damage to reputation without any proof that such harm actually occurred. The largely uncontrolled discretion of juries to award damages where there is no loss unnecessarily compounds the potential of any system of liability for defamatory falsehood to inhibit the vigorous exercise of First Amendment freedoms. Additionally, the doctrine of presumed damages invites juries to punish unpopular opinion rather than to compensate individuals for injury sustained by the publication of a false fact. More to the point, the States have no substantial interest in securing for plaintiffs such as this petitioner gratuitous awards of money damages far in excess of any actual injury.
37
We would not, of course, invalidate state law simply because we doubt its wisdom, but here we are attempting to reconcile state law with a competing interest grounded in the constitutional command of the First Amendment. It is therefore appropriate to require that state remedies for defamatory falsehood reach no farther than is necessary to protect the legitimate interest involved. It is necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury. We need not define 'actual injury,' as trial courts have wide experience in framing appropriate jury instructions in tort actions. Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Of course, juries must be limited by appropriate instructions, and all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury.
38
We also find no justification for allowing awards of punitive damages against publishers and broadcasters held liable under state-defined standards of liability for defamation. In most jurisdictions jury discretion over the amounts awarded is limited only by the gentle rule that they not be excessive. Consequently, juries assess punitive damages in wholly unpredictable amounts bearing no necessary relation to the actual harm caused. And they remain free to use their discretion selectively to punish expressions of unpopular views. Like the doctrine of presumed damages, jury discretion to award punitive damages unnecessarily exacerbates the danger of media self-censorship, but, unlike the former rule, punitive damages are wholly irrelevant to the state interest that justifies a negligence standard for private defamation actions. They are not compensation for injury. Instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence. In short, the private defamation plaintiff who establishes liability under a less demanding standard than that stated by New York Times may recover only such damages as are sufficient to compensate him for actual injury.
V
39
Notwithstanding our refusal to extend the New York Times privilege to defamation of private individuals, respondent contends that we should affirm the judgment below on the ground that petitioner is either a public official or a public figure. There is little basis for the former assertion. Several years prior to the present incident, petitioner had served briefly on housing committees appointed by the mayor of Chicago, but at the time of publication he had never held any remunerative governmental position. Respondent admits this but argues that petitioner's appearance at the coroner's inquest rendered him a 'de facto public official.' Our cases recognized no such concept. Respondent's suggestion would sweep all lawyers under the New York Times rule as officers of the court and distort the plain meaning of the 'public official' category beyond all recognition. We decline to follow it.
40
Respondent's characterization of petitioner as a public figure raises a different question. That designation may rest on either of two alternative bases. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions.
41
Petitioner has long been active in community and professional affairs. He has served as an officer of local civic groups and of various professional organizations, and he has published several books and articles on legal subjects. Although petitioner was consequently well known in some circles, he had achieved no general fame or notoriety in the community. None of the prospective jurors called at the trial had ever heard of petitioner prior to this litigation, and respondent offered no proof that this response was atypical of the local population. We would not lightly assume that a citizen's participation in community and professional affairs rendered him a public figure for all purposes. Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life. It is preferable to reduce the public-figure question to a more meaningful context by looking to the nature and extent of an individual's participation in the particular controversy giving rise to the defamation.
42
In this context it is plain that petitioner was not a public figure. He played a minimal role at the coroner's inquest, and his participation related solely to his representation of a private client. He took no part in the criminal prosecution of Officer Nuccio. Moreover, he never discussed either the criminal or civil litigation with the press and was never quoted as having done so. He plainly did not thrust himself into the vortex of this public issue, nor did he engage the public's attention in an attempt to influence its outcome. We are persauded that the trial court did not err in refusing to characterize petitioner as a public figure for the purpose of this litigation.
43
We therefore conclude that the New York Times standard is inapplicable to this case and that the trial court erred in entering judgment for respondent. Because the jury was allowed to impose liability without fault and was permitted to presume damages without proof of injury, a new trial is necessary. We reverse and remand for further proceedings in accord with this opinion.
44
It is ordered.
45
Reversed and remanded.
46
Mr. Justice BLACKMUN, concurring.
47
I joined Mr. Justice Brennan's opinion for the plurality in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971). I did so because I concluded that, given New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and its progeny (noted by the Court, ante, at 334—336, n. 6), as well as Curtis Publishing Co. v. Butts, and Associated Press v. Walker, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), the step taken in Rosenbloom, extending the New York Times doctrine to an event of public or general interest, was logical and inevitable. A majority of the Court evidently thought otherwise, as is particularly evidenced by Mr. Justice White's separate concurring opinion there and by the respective dissenting opinions of Mr. Justice Harlan and of Mr. Justice Marshall joined by Mr. Justice Stewart.
48
The Court today refuses to apply New York Times to the private individual, as contrasted with the public official and the public figure. It thus withdraws to the factual limits of the pre-Rosenbloom cases. It thereby fixes the outer boundary of the New York Times doctrine and says that beyond that boundary, a State is free to define for itself the appropriate standard of media liability so long as it does not impose liability without fault. As my joinder in Rosenbloom's plurality opinion would intimate, I sense some illogic in this.
49
The Court, however, seeks today to strike a balance between competing values where necessarily uncertain assumptions about human behavior color the result. Although the Court's opinion in the present case departs from the rationale of the Rosenbloom plurality, in that the Court now conditions a libel action by a private person upon a showing of negligence, as contrasted with a showing of willful or reckless disregard, I am willing to join, and do join, the Court's opinion and its judgment for two reasons:
50
1. By removing the specters of presumed and punitive damages in the absence of New York Times malice, the Court eliminates significant and powerful motives for self-censorship that otherwise are present in the traditional libel action. By so doing, the Court leaves what should prove to be sufficient and adequate breathing space for a vigorous press. What the Court has done, I believe, will have little, if any, practical effect on the functioning of responsible journalism.
51
2. The Court was sadly fractionated in Rosenbloom. A result of that kind inevitably leads to uncertainty. I feel that it is of profound importance for the Court to come to rest in the defamation area and to have a clearly defined majority position that eliminates the unsureness engendered by Rosenbloom's diversity. If my vote were not needed to create a majority, I would adhere to my prior view. A definitive ruling, however, is paramount. See Curtis Publishing Co. v. Butts, 388 U.S., at 170, 87 S.Ct., at 1999 (Black, J., concurring); Time, Inc. v. Hill, 385 U.S. 374, 398, 87 S.Ct. 534, 547, 17 L.Ed.2d 456 (1967) (Black, J., concurring); United States v. Vuitch, 402 U.S. 62, 97, 91 S.Ct. 1294, 1311, 28 L.Ed.2d 601 (1971) (separate statement).
52
For these reasons, I join the opinion and the judgment of the Court.
53
Mr. Chief Justice BURGER, dissenting.
54
The doctrines of the law of defamation have had a gradual evolution primarily in the state courts. In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and its progeny this Court entered this field.
55
Agreement or disagreement with the law as it has evolved to this time does not alter the fact that it has been orderly development with a consistent basic rationale. In today's opinion the Court abandons the traditional thread so far as the ordinary private citizen is concerned and introduces the concept that the media will be liable for negligence in publishing defamatory statements with respect to such persons. Although I agree with much of what Mr. Justice WHITE states, I do not read the Court's new doctrinal approach in quite the way he does. I am frank to say I do not know the parameters of a 'negligence' doctrine as applied to the news media. Conceivably this new doctrine could inhibit some editors, as the dissents of Mr. Justice DOUGLAS and Mr. Justice BRENNAN suggest. But I would prefer to allow this area of law to continue to evolve as it has up to now with respect to private citizens rather than embark on a new doctrinal theory which has no jurisprudential ancestry.
56
The petitioner here was performing a professional representative role as an advocate in the highest tradition of the law, and under that tradition the advocate is not to be invidiously identified with his client. The important public policy which underlies this tradition—the right to counsel—would be gravely jeopardized if every lawyer who takes an 'unpopular' case, civil or criminal, would automatically become fair game for irresponsible reporters and editors who might, for example, describe the lawyer as a 'mob mouthpiece' for representing a client with a serious prior criminal record, or as an 'ambulance chaser' for representing a claimant in a personal injury action.
57
I would reverse the judgment of the Court of Appeals and remand for reinstatement of the verdict of the jury and the entry of an appropriate judgment on that verdict.
58
Mr. Justice DOUGLAS, dissenting.
59
The Court describes this case as a return to the struggle of 'defin(ing) the proper accommodation between the law of defamation and the freedoms of speech and press protected by the First Amendment.' It is indeed a struggle, once described by Mr. Justice Black as 'the same quagmire' in which the Court 'is now helplessly struggling in the field of obscenity.' Curtis Publishing Co. v. Butts, 388 U.S. 130, 171, 87 S.Ct. 1975, 2000, 18 L.Ed.2d 1094 (concurring opinion). I would suggest that the struggle is a quite hopeless one, for, in light of the command of the First Amendment, no 'accommodation' of its freedoms can be 'proper' except those made by the Framers themselves.
60
Unlike the right of privacy which, by the terms of the Fourth Amendment, must be accommodated with reasonable searches and seizures and warrants issued by magistrates, the rights of free speech and of a free press were protected by the Framers in verbiage whose prescription seems clear. I have stated before my view that the First Amendment would bar Congress from passing any libel law.1 This was the view held by Thomas Jefferson2 and it is one Congress has never challenged through enactment of a civil libel statute. The sole congressional attempt at this variety of First Amendment muzzle was in the Sedition Act of 1798—a criminal libel act never tested in this Court and one which expired by its terms three years after enactment. As President, Thomas Jefferson pardoned those who were convicted under the Act, and fines levied in its prosecution were repaid by Act of Congress.3 The general consensus was that the Act constituted a regrettable legislative exercise plainly in violation of the First Amendment.4
61
With the First Amendment made applicable to the States through the Fourteenth,5 I do not see how States have any more ability to 'accommodate' freedoms of speech or of the press than does Congress. This is true whether the form of the accommodation is civil or criminal since '(w)hat a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel.' New York Times Co. v. Sullivan, 376 U.S. 254, 277, 84 S.Ct. 710, 724, 11 L.Ed.2d 686. Like Congress, States are without power 'to use a civil libel law or any other law to impose damages for merely discussing public affairs.' Id., at 295, 84 S.Ct., at 734 (Black, J., concurring).6
62
Continued recognition of the possibility of state libel suits for public discussion of public issues leaves the freedom of speech honored by the Fourteenth Amendment a diluted version of First Amendment protection. This view is only possible if one accepts the position that the First Amendment is applicable to the States only through the Due Process Clause of the Fourteenth, due process freedom of speech being only that freedom which this Court might deem to be 'implicit in the concept of ordered liberty.'7 But the Court frequently has rested state free speech and free press decisions on the Fourteenth Amendment generally8 rather than on the Due Process Clause alone. The Fourteenth Amendment speaks not only of due process but also of 'privileges and immunities' of United States citizenship. I can conceive of no privilege or immunity with a higher claim to recognition against state abridgment than the freedoms of speech and of the press. In our federal system we are all subject to two governmental regimes, and freedoms of speech and of the press protected against the infringement of only one are quite illusory. The identity of the oppressor is, I would think, a matter of relative indifference to the oppressed.
63
There can be no doubt that a State impinges upon free and open discussion when it sanctions the imposition of damages for such discussion through its civil libel laws. Discussion of public affairs is often marked by highly charged emotions, and jurymen, not unlike us all, are subject to those emotions. It is indeed this very type of speech which is the reason for the First Amendment since speech which arouses little emotion is little in need of protection. The vehicle for publication in this case was the American Opinion, a most controversial periodical which disseminates the views of the John Birch Society, an organization which many deem to be quite offensive. The subject matter involved 'Communist plots,' 'conspiracies against law enforcement agencies,' and the killing of a private citizen by the police. With any such amalgam of controversial elements pressing upon the jury, a jury determination, unpredictable in the most neutral circumstances, becomes for those who venture to discuss heated issues, a virtual roll of the dice separating them from liability for often massive claims of damage.
64
It is only the hardy publisher who will engage in discussion in the face of such risk, and the Court's preoccupation with proliferating standards in the area of libel increases the risks. It matters little whether the standard be articulated as 'malice' or 'reckless disregard of the truth' or 'negligence,' for jury determinations by any of those criteria are virtually unreviewable. This Court, in its continuing delineation of variegated mantles of First Amendment protection, is, like the potential publisher, left with only speculation on how jury findings were influenced by the effect the subject matter of the publication had upon the minds and viscera of the jury. The standard announced today leaves the States free to 'define for themselves the appropriate standard of liability for a publisher or broadcaster' in the circumstances of this case. This of course leaves the simple negligence standard as an option, with the jury free to impose damages upon a finding that the publisher failed to act as 'a reasonable man.' With such continued erosion of First Amendment protection, I fear that it may well be the reasonable man who refrains from speaking.
65
Since in my view the First and Fourteenth Amendments prohibit the imposition of damages upon respondent for this discussion of public affairs, I would affirm the judgment below.
66
Mr. Justice BRENNAN, dissenting.
67
I agree with the conclusion, expressed in Part V of the Court's opinion, that, at the time of publication of respondent's article, petitioner could not properly have been viewed as either a 'public official' or 'public figure'; instead, respondent's article, dealing with an alleged conspiracy to discredit local police forces, concerned petitioner's purported involvement in 'an event of 'public or general interest." Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 31—32, 91 S.Ct. 1811, 1814, 29 L.Ed.2d 296 (1971); see ante, at 331—332 n. 4. I cannot agree, however, that free and robust debate—so essential to the proper functioning of our system of government—is permitted adequate 'breathing space,' N A A C P v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963), when, as the Court holds, the States may impose all but strict liability for defamation if the defamed party is a private person and 'the substance of the defamatory statement 'makes substantial danger to reputation apparent." Ante, at 348.1 I adhere to my view expressed in Rosenbloom v. Metromedia, Inc., supra, that we strike the proper accommodation between avoidance of media self-censorship and protection of individual reputations only when we require States to apply the New York, Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), knowing-or-reckless-falsity standard in civil libel actions concerning media reports of the involvement of private individuals in events of public or general interest.
68
The Court does not hold that First Amendment guarantees do not extend to speech concerning private persons' involvement in events of public or general interest. It recognizes that self-governance in this country perseveres because of our 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.' Id., at 270, 84 S.Ct., at 721 (emphasis added). Thus, guarantees of free speech and press necessarily reach 'far more than knowledge and debate about the strictly official activities of various levels of government,' Rosenbloom v. Metromedia, Inc., supra, 403 U.S., at 41, 91 S.Ct., at 1818 for '(f)reedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.' Thornhill v. Alabama, 310 U.S. 88, 102, 60 S.Ct. 736, 744, 84 L.Ed. 1093 (1940).
69
The teaching to be distilled from our prior cases is that, while public interest in events may at times be influenced by the notoriety of the individuals involved, '(t)he public's primary interest is in the event (,) . . . the conduct of the participant and the content, effect, and significance of the conduct . . .' Rosenbloom, supra, 403 U.S. at 43, 91 S.Ct. at 1819. Matters of public or general interest do not 'suddenly become less so merely because a private individual is involved, or because in some sense the individual did not 'voluntarily' choose to become involved.' Ibid. See Time, Inc. v. Hill, 385 U.S. 374, 388, 87 S.Ct. 534, 542, 17 L.Ed.2d 456 (1967).
70
Although acknowledging that First Amendment values are of no less significance when media reports concern private persons' involvement in matters of public concern, the Court refuses to provide, in such cases, the same level of constitutional protection that has been afforded the media in the context of defamation of public persons. The accommodation that this Court has established between free speech and libel laws in cases involving public officials and public figures—that defamatory falsehood be shown by clear and convincing evidence to have been published with knowledge of falsity or with reckless disregard of truth—is not apt, the Court holds, because the private individual does not have the same degree of access to the media to rebut defamatory comments as does the public person and he has not voluntarily exposed himself to public scrutiny.
71
While these arguments are forcefully and eloquently presented, I cannot accept them, for the reasons I stated in Rosenbloom:
72
'The New York Times standard was applied to libel of a public official or public figure to give effect to the (First) Amendment's function to encourage ventilation of public issues, not because the public official has any less interest in protecting his reputation than an individual in private life. While the argument that public figures need less protection because they can command media attention to counter criticism may be true for some very prominent people, even then it is the rare case where the denial overtakes the original charge. Denials, retractions, and corrections are not 'hot' news, and rarely receive the prominence of the original story. When the public official or public figure is a minor functionary, or has left the position that put him in the public eye . . ., the argument loses all of its force. In the vast majority of libels involving public officials or public figures, the ability to respond through the media will depend on the same complex factor on which the ability of a private individual depends: the unpredictable event of the media's continuing interest in the story. Thus the unproved, and highly improbable, generalization that an as yet (not fully defined) class of 'public figures' involved in matters of public concern will be better able to respond through the media than private individuals also involved in such matters seems too insubstantial a reed on which to rest a constitutional distinction.' 403 U.S., at 46—47, 91 S.Ct., at 1821.
73
Moreover, the argument that private persons should not be required to prove New York Times knowing-or-reckless falsity because they do not assume the risk of defamation by freely entering the public arena 'bears little relationship either to the values protected by the First Amendment or to the nature of our society.' Id., at 47, 91 S.Ct., at 1822. Social interaction exposes all of us to some degree of public view. This Court has observed that '(t)he risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and of press.' Time, Inc. v. Hill, 385 U.S., at 388, 87 S.Ct., at 543. Therefore,
74
'(v)oluntarily or not, we are all 'public' men to some degree. Conversely, some aspects of the lives of even the most public men fall outside the area of matters of public or general concern. See . . . Griswold v. Connecticut, 381 U.S., 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). Thus, the idea that certain 'public' figures have voluntarily exposed their entire lives to public inspection, while private individuals have kept theirs carefully shrouded from public view is, at best, a legal fiction. In any event, such a distinction could easily produce the paradoxical result of dampening discussion of issues of public or general concern because they happen to involve private citizens while extending constitutional encouragement to discussion of aspects of the lives of 'public figures' that are not in the area of public or general concern.' Rosenbloom, supra, 403 U.S., at 48, 91 S.Ct., at 1822 (footnote omitted).
75
To be sure, no one commends publications which defame the good name and reputation of any person: 'In an ideal world, the responsibility of the press would match the freedom and public trust given it.' Id., at 51, 91 S.Ct., at 1823.2 Rather, as the Court agrees, some abuse of First Amendment freedoms is tolerated only to insure that would-be commentators on events of public or general interest are not 'deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so.' New York Times Co. v. Sullivan, 376 U.S., at 279, 84 S.Ct., at 725. The Court's holding and a fortiori my Brother WHITE's views, see n. 1, supra, simply deny free expression its needed 'breathing space.' Today's decision will exacerbate the rule of self-censorship of legitimate utterance as publishers 'steer far wider of the unlawful zone,' Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958).
76
We recognized in New York Times Co. v. Sullivan, supra, 376 U.S. at 279, 84 S.Ct., at 725, that a rule requiring a critic of official conduct to guarantee the truth of all of his factual contentions would inevitably lead to self-censorship when publishers, fearful of being unable to prove truth or unable to bear the expense of attempting to do so, simply eschewed printing controversial articles. Adoption, by many States, of a reasonable-care standard in cases where private individuals are involved in matters of public interest—the probable result of today's decision—will likewise lead to self-censorship since publishers will be required carefully to weigh a myriad of uncertain factors before publication. The reasonable-care standard is 'elusive,' Time, Inc. v. Hill, supra, 385 U.S. at 389, 87 S.Ct. at 543; it saddles the press with 'the intolerable burden of guessing how a jury might assess the reasonableness of steps taken by it to verify the accuracy of every reference to a name, picture or portrait.' Ibid. Under a reasonable-care regime, publishers and broadcasters will have to make prepublication judgments about juror assessment of such diverse considerations as the size, operating procedures, and financial condition of the newsgathering system, as well as the relative costs and benefits of instituting less frequent and more costly reporting at a higher level of accuracy. See The Supreme Court, 1970 Term, 85 Harv.L.Rev. 3, 228 (1971). Moreover, in contrast to proof by clear and convincing evidence required under the New York Times test, the burden of proof for reasonable care will doubtless be the preponderance of the evidence.
77
'In the normal civil suit where (the preponderance of the evidence) standard is employed, 'we view it as no more serious in general for there to be an erroneous verdict in the defendant's favor than for there to be an erroneous verdict in the plaintiff's favor.' In re Winship, 397 U.S. 358, 371, 90 S.Ct. 1068, 1076, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring). In libel cases, however, we view an erroneous verdict for the plaintiff as most serious. Not only does it mulct the defendant for an innocent misstatement . . . but the possibility of such error, even beyond the vagueness of the negligence standard itself, would create a strong impetus toward self-censorship, which the First Amendment cannot tolerate.' Rosenbloom, 403 U.S., at 50, 91 S.Ct. at 1823.
78
And, most hazardous, the flexibility which inheres in the reasonable-care standard will create the danger that a jury will convert it into 'an instrument for the suppression of those 'vehement, caustic, and sometimes unpleasantly sharp attacks,' . . . which must be protected if the guarantees of the First and Fourteenth Amendments are to prevail.' Monitor Patriot Co. v. Roy, 401 U.S. 265, 277, 91 S.Ct. 621, 628, 28 L.Ed.2d 35 (1971).
79
The Court does not discount altogether the danger that jurors will punish for the expression of unpopular opinions. This probability accounts for the Court's limitation that 'the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.' Ante, at 348. But plainly a jury's latitude to impose liability for want of due care poses a far greater threat of suppressing unpopular views than does a possible recovery of presumed or punitive damages. Moreover, the Court's broad-ranging examples of 'actual injury,' including impairment of reputation and standing in the community, as well as personal humiliation, and mental anguish and suffering, inevitably allow a jury bent on punishing expression of unpopular views a formidable weapon for doing so. Finally, even a limitation of recovery to 'actual injury'—however much it reduces the size or frequency of recoveries—will not provide the necessary elbowroom for First Amendment expression.
80
'It is not simply the possibility of a judgment for damages that results in self-censorship. The very possibility of having to engage in litigation, an expensive and protracted process, is threat enough to cause discussion and debate to 'steer far wider of the unlawful zone' thereby keeping protected discussion from public cognizance. . . . Too, a small newspaper suffers equally from a substantial damage award, whether the label of the award be 'actual' or 'punitive." Rosenbloom, supra, 403 U.S., at 52—53, 91 S.Ct. at 1824.
81
On the other hand, the uncertainties which the media face under today's decision are largely avoided by the New York Times standard. I reject the argument that my Rosenbloom view improperly commits to judges the task of determining what is and what is not an issue of 'general or public interest.'3 I noted in Rosenbloom that performance of this task would not always be easy. Id., at 49 n. 17, 91 S.Ct., at 1822. But surely the courts, the ultimate arbiters of all disputes concerning clashes of constitutional values, would only be performing one of their traditional functions in undertaking this duty. Also, the difficulty of this task has been substantially lessened by that 'sizable body of cases, decided both before and after Rosenbloom, that have employed the concept of a matter of public concern to reach decisions in . . . cases dealing with an alleged libel of a private individual that employed a public interest standard . . . and . . . cases that applied Butts to the alleged libel of a public figure.' Comment, The Expanding Constitutional Protection for the News Media from Liability for Defamation: Predictability and the New Synthesis, 70 Mich.L.Rev. 1547, 1560 (1972). The public interest is necessarily broad; any residual self-censorship that may result from the uncertain contours of the 'general or public interest' concept should be of far less concern to publishers and broadcasters than that occasioned by state laws imposing liability for negligent falsehood.
82
Since petitioner failed, after having been given a full and fair opportunity, to prove that respondent published the disputed article with knowledge of its falsity or with reckless disregard of the truth, see ante, at 329—330 n. 2, I would affirm the judgment of the Court of Appeals.
83
Mr. Justice WHITE, dissenting.
84
For some 200 years—from the very founding of the Nation—the law of defamation and right of the ordinary citizen to recover for false publication injurious to his reputation have been almost exclusively the business of state courts and legislatures. Under typical state defamation law, the defamed private citizen had to prove only a false publication that would subject him to hatred, contempt, or ridicule. Given such publication, general damage to reputation was presumed, while punitive damages required proof of additional facts. The law governing the defamation of private citizens remained untouched by the First Amendment because until relatively recently, the consistent view of the Court was that libelous words constitute a class of speech wholly unprotected by the First Amendment, subject only to limited exceptions carved out since 1964.
85
But now, using that Amendment as the chosen instrument, the Court, in a few printed pages, has federalized major aspects of libel law by declaring unconstitutional in important respects the prevailing defamation law in all or most of the 50 States. That result is accomplished by requiring the plaintiff in each and every defamation action to prove not only the defendant's culpability beyond his act of publishing defamatory material but also actual damage to reputation resulting from the publication. Moreover, punitive damages may not be recovered by showing malice in the traditional sense of ill will; knowing falsehood or reckless disregard of the truth will not be required.
86
I assume these sweeping changes will be popular with the press, but this is not the road to salvation for a court of law. As I see it, there are wholly insufficient grounds for scuttling the libel laws of the States in such wholesale fashion, to say nothing of deprecating the reputation interest of ordinary citizens and rendering them powerless to protect themselves. I do not suggest that the decision is illegitimate or beyond the bounds of judicial review, but it is an ill-considered exercise of the power entrusted to this Court, particularly when the Court has not had the benefit of briefs and argument addressed to most of the major issues which the Court now decides. I respectfully dissent.
87
* Lest there be any mistake about it, the changes wrought by the Court's decision cut very deeply. In 1938, the Restatement of Torts reflected the historic rule that publication in written form of defamatory material—material tending 'so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him'1 subjected the publisher to liability although no special harm to reputation was actually proved.2 Restatement of Torts § 569 (1938).3 Truth was a defense, and some libels were privileged; but, given a false circulation, general damage, to reputation was presumed and damages could be awarded by the jury, along with any special damages such as pecuniary loss and emotional distress. At the very least, the rule allowed the recovery of nominal damages for any defamatory publication actionable per se and thus performed
88
'a vindicatory function by enabling the plaintiff publicly to brand the defamatory publication as false. The salutary social value of this rule is preventive in character since it often permits a defamed person to expose the groundless character of a defamatory rumor before harm to the reputation has resulted therefrom.' Id., § 569, comment b, p. 166.
89
If the defamation was not libel but slander, it was actionable per se only if it imputed a criminal offense; a venereal or loathsome and communicable disease; improper conduct of a lawful business; or unchastity by a woman. Id., § 570. To be actionable, all other types of slanderous statements required proof of special damage other than actual loss of reputation or emotional distress, that special damage almost always being in the form of material or pecuniary loss of some kind. Id., § 575 and comment b, pp. 185—187.
90
Damages for libel or slander per se included 'harm caused thereby to the reputation of the person defamed or in the absence of proof of such harm, for the harm which normally results from such a defamation.' Id., § 621. At the heart of the libel-and-slander-per-se damage scheme lay the award of general damages for loss of reputation. They were granted without special proof because the judgment of history was that the content of the publication itself was so likely to cause injury and because 'in many cases the effect of defamatory statements is so subtle and indirect that it is impossible directly to trace the effects thereof in loss to the person defamed.' Id., § 621, comment a, p. 314.4 Proof of actual injury to reputation was itself insufficient proof of that special damage necessary to support liability for slander not actionable per se. But if special damage in the form of material or pecuniary loss were proved, general damages for injury to reputation could be had without further proof. 'The plaintiff may recover not only for the special harm so caused, but also for general loss of reputation.' Id., § 575, comment a, p. 185.5 The right to recover for emotional distress depended upon the defendant's otherwise being liable for either libel or slander. Id., § 623. Punitive damages were recoverable upon proof of special facts amounting to express malice. Id., § 908 and comment b, p. 555.
91
Preparations in the mid-1960's for Restatement (Second) of Torts reflected what were deemed to be substantial changes in the law of defamation, primarily a trend toward limiting per se libels to those where the defamatory nature of the publication is apparent on its face, i.e., where the defamatory innuendo is apparent from the publication itself without reference to extrinsic facts by way of inducement.' Restatement (Second) of Torts § 569, p. 29 (Tent. Draft No. 12, Apr. 27, 1966). Libels of this sort and slanders per se continued to be recognized as actionable without proof of special damage or injury to reputation.6 All other defamations would require proof of special injury in the form of material or pecuniary loss. Whether this asserted change reflected the prevailing law was heavily debated,7 but it was unquestioned at the time that there are recurring situations in which libel and slander are and should be actionable per se.
92
In surveying the current state of the law, the proposed Restatement (Second) observed that '(a)ll courts except Virginia agree that any libel which is defamatory upon its face is actionable without proof of damage . . ..' Restatement (Second) of Torts § 569, p. 84 (Tent.Draft No. 11, Apr. 15, 1965). Ten jurisdictions continued to support the old rule that libel not defamatory on its face and whose innuendo depends on extrinsic facts is actionable without proof of damage although slander would not be. Twenty-four jurisdictions were said to hold that libel not defamatory on its face is to be treated like slander and thus not actionable without proof of damage where slander would not be. Id., § 569, p. 86. The law in six jurisdictions was found to be in an unsettled state but most likely consistent with the Restatement (Second). Id., § 569, p. 88. The law in Virginia was thought to consider libel actionable without proof of special damage only where slander would be regardless of whether the libel is defamatory on its face. Id., § 569, p. 89. All States, therefore, were at that time thought to recognize important categories of defamation that were actionable per se.8 Nor was any question apparently raised at that time that upon proof of special damage in the form of material or pecuniary loss, general damages to reputation could be recovered without further proof.
93
Unquestionably, state law continued to recognize some absolute, as well as some conditional, privileges to publish defamatory materials, including the privilege of fair comment in defined situations. But it remained true that in a wide range of situations, the ordinary citizen could make out a prima facie case without proving more than a defamatory publication and could recover general damages for injury to his reputation unless defeated by the defense of truth.9
94
The impact of today's decision on the traditional law of libel is immediately obvious and indisputable. No longer will the plaintiff be able to rest his case with proof of a libel defamatory on its face or proof of a slander historically actionable per se. In addition, he must prove some further degree of culpable conduct on the part of the publisher, such as intentional or reckless falsehood or negligence. And if he succeeds in this respect, he faces still another obstacle: recovery for loss of reputation will be conditioned upon 'competent' proof of actual injury to his standing in the community. This will be true regardless of the nature of the defamation and even though it is one of those particularly reprehensible statements that have traditionally made slanderous words actionable without proof of fault by the publisher or of the damaging impact of his publication. The Court rejects the judgment of experience that some publications are so inherently capable of injury, and actual injury so difficult to prove, that the risk of falsehood should be borne by the publisher, not the victim. Plainly, with the additional burden on the plaintiff of proving negligence or other fault, it will be exceedingly difficult, perhaps impossible, for him to vindicate his reputation interest by securing a judgment for nominal damages, the practical effect of such a judgment being a judicial declaration that the publication was indeed false. Under the new rule the plaintiff can lose, not because the statement is true, but because it was not negligently made.
95
So too, the requirement of proving special injury to reputation before general damages may be awarded will clearly eliminate the prevailing rule, worked out over a very long period of time, that, in the case of defamations not actionable per se, the recovery of general damages for injury to reputation may also be had if some form of material or pecuniary loss is proved. Finally, an inflexible federal standard is imposed for the award of punitive damages. No longer will it be enough to prove ill will and an attempt to injure.
96
These are radical changes in the law and severe invasions of the prerogatives of the States. They should at least be shown to be required by the First Amendment or necessitated by our present circumstances. Neither has been demonstrated.
97
Of course, New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct., 710, 11 L.Ed.2d 686 (1964); Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966), and Curtis Publishing Co. v. Butts and Associated Press v. Walker, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), have themselves worked major changes in defamation law. Public officials and public figures, if they are to recover general damages for injury to reputation, must prove knowing falsehood or reckless disregard for the truth. The States were required to conform to these decisions. Thereafter in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), three Members of the Court urged that the same standard be applied whenever the publication concerned an event of public or general concern. But none of these cases purported to foreclose in all circumstances recovery by the ordinary citizen on traditional standards of liability, and until today, a majority of the Court had not supported the proposition that, given liability, a court or jury may not award general damages in a reasonable amount without further proof of injury.
98
In the brief period since Rosenbloom was decided, at least 17 States and several federal courts of appeals have felt obliged to consider the New York Times constitutional privilege for liability as extending to, in the words of the Rosenbloom plurality, 'all discussion and communication involving matters of public or general concern.' Id., at 44, 91 S.Ct., at 1820.10 Apparently, however, general damages still remain recoverable once that standard of liability is satisfied. Except where public officials and public figures are concerned, the Court now repudiates the plurality opinion in Rosenbloom and appears to espouse the liability standard set forth by three other Justices in that case. The States must now struggle to discern the meaning of such ill-defined concepts as 'liability without fault' and to fashion novel rules for the recovery of damages. These matters have not been briefed or argued by the parties and their workability has not been seriously explored. Nevertheless, yielding to the apparently irresistible impulse to announce a new and different interpretation of the First Amendment, the Court discards history and precedent in its rush to refashion defamation law in accordance with the inclinations of a perhaps evanescent majority of the Justices.
II
99
The Court does not contend, and it could hardly do so, that those who wrote the First Amendment intended to prohibit the Federal Government, within its sphere of influence in the Territories and the District of Columbia, from providing the private citizen a peaceful remedy for damaging falsehood. At the time of the adoption of the First Amendment, many of the consequences of libel law already described had developed, particularly the rule that libels and some slanders were so inherently injurious that they were actionable without special proof of damage to reputation. As the Court pointed out in Roth v. United States, 354 U.S. 476, 482, 77 S.Ct. 1304, 1307, 1 L.Ed.2d 1498 (1957), 10 of the 14 States that had ratified the Constitution by 1792 had themselves provided constitutional guarantees for free expression, and 13 of the 14 nevertheless provided for the prosecution of libels. Prior to the Revolution, the American Colonies had adopted the common law of libel.11 Contrary to some popular notions, freedom of the press was sharply curtailed in colonial America.12 Seditious libel was punished as a contempt by the colonial legislatures and as a criminal offense in the colonial courts.13
100
Scant, if any, evidence exists that the First Amendment was intended to abolish the common law of libel, at least to the extent of depriving ordinary citizens of meaningful redress against their defamers. On the contrary,
101
'(i)t is conceded on all sides that the common-law rules that subjected the libeler to responsibility for the private injury, or the public scandal or disorder occasioned by his conduct, are not abolished by the protection extended to the press in our constitutions.' 2 T. Cooley, Constitutional Limitations 883 (8th ed. 1927).
102
Moreover, consistent with the Blackstone formula,14 these common-law actions did not abridge freedom of the press. See generally L. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History 247—248 (1960); Merin, Libel and the Supreme Court, 11 Wm. & Mary L.Rev. 371, 376 (1969); Hallen, Fair Comment, 8 Tex.L.Rev. 41, 56 (1929). Alexander Meiklejohn, who accorded generous reach to the First Amendment, nevertheless acknowledged:
103
'No one can doubt that, in any well-governed society, the legislature has both the right and the duty to prohibit certain forms of speech. Libelous assertions may be, and must be, forbidden and punished. So too must slander. . . . All these necessities that speech be limited are recognized and provided for under the Constitution. They were not unknown to the writers of the First Amendment. That amendment, then, we may take it for granted, does not forbid the abridging of speech. But, at the same time, it does forbid the abridging of the freedom of speech. It is to the solving of that paradox, that apparent self-contradiction, that we are summoned if, as free men, we wish to know what the right of freedom of speech is.' Political Freedom, The Constitutional Powers of the People 21 (1965).
104
See also Leflar, The Freeness of Free Speech, 15 Van.L.Rev. 1073, 1080—1081 (1962).
105
Professor Zechariah Chafee, a noted First Amendment scholar, has persuasively argued that conditions in 1791 'do not arbitrarily fix the division between lawful and unlawful speech for all time.' Free Speech in the United States 14 (1954).15 At the same time, however, he notes that while the Framers may have intended to abolish seditious libels and to prevent any prosecutions by the Federal Government for criticism of the Government,16 'the free speech clauses do not wipe out the common law as to obscenity, profanity, and defamation of individuals.'17
106
The debates in Congress and the States over the Bill of Rights are unclear and inconclusive on any articulated intention of the Framers as to the free press guarantee.18 We know that Benjamin Franklin, John Adams, and William Cushing favored limiting freedom of the press to truthful statements, while others such as James Wilson suggested a restatement of the Blackstone standard.19 Jefferson endorsed Madison's formula that 'Congress shall make no law . . . abridging the freedom of speech or the press' only after he suggested:
107
The people shall not be deprived of their right to speak, to write, or otherwise to publish anything but false facts affecting injuriously the life, liberty or reputation of others . . ..' F. Mott, Jefferson and the Press 14 (1943).20
108
Doubt has been expressed that the Members of Congress envisioned the First Amendment as reaching even this far. Merin, Libel and the Supreme Court, 11 Wm. & Mary L.Rev. 371, §§ 379—380 (1969).
109
This Court in bygone years has repeatedly dealt with libel and slander actions from the District of Columbia and from the Territories. Although in these cases First Amendment considerations were not expressly discussed, the opinions of the Court unmistakably revealed that the classic law of libel was firmly in place in those areas where federal law controlled. See e.g., Washington Post Co. v. Chaloner, 250 U.S. 290, 39 S.Ct. 448, 63 L.Ed. 987 (1919); Baker v. Warner, 231 U.S. 588, 34 S.Ct. 175, 58 L.Ed. 384 (1913); Nalle v. Oyster, 230 U.S. 165, 33 S.Ct. 1043, 57 L.Ed. 1439 (1913); Dorr v. United States, 195 U.S. 138, 24 S.Ct. 808, 49 L.Ed. 128 (1904); Pollard v. Lyon, 91 U.S. 225, 23 L.Ed. 308 (1876); White v. Nicholls, 3 How. 266, 11 L.Ed. 591 (1845).
110
The Court's consistent view prior to New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), was that defamatory utterances were wholly unprotected by the First Amendment. In Patterson v. Colorado, ex rel. Attorney General, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879 (1907), for example, the Court said that although freedom of speech and press is protected from abridgment by the Constitution, these provisions 'do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare.' This statement was repeated in Near v. Minnesota, ex rel. Olson, 283 U.S. 697, 714, 51 S.Ct. 625, 630, 75 L.Ed. 1357 (1931), the Court adding:
111
'But it is recognized that punishment for the abuse of the liberty accorded to the press is essential to the protection of the public, and that the commonlaw rules that subject the libeler to responsibility for the public offense, as well as for the private injury, are not abolished by the protection extended in our Constitutions.' Id., at 715, 51 S.Ct. at 630.
112
Chaplinsky v. New Hampshire, 315 U.S. 568, 571—572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942) (footnotes omitted), reflected the same view:
113
'There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. 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.'
114
Beauharnais v. Illinois, 343 U.S. 250, 254—257, 72 S.Ct. 725, 729—731, 96 L.Ed. 919 (1952) (footnotes omitted), repeated the Chaplinsky statement, noting also that nowhere at the time of the adoption of the Constitution 'was there any suggestion that the crime of libel be abolished.' And in Roth v. United States, 354 U.S., at 483, 77 S.Ct., at 1308 (footnote omitted), the Court further examined the meaning of the First Amendment:
115
'In light of this history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. This phrasing did not prevent this Court from concluding that libelous utterances are not within the area of constitutionally protected speech. Beauharnais v. Illinois, 343 U.S. 250, 266, 72 S.Ct. 725, 735, 96 L.Ed. 919. At the time of the adoption of the First Amendment, obscenity law was not as fully developed as libel law, but there is sufficiently contemporaneous evidence to show that obscenity, too, was outside the protection intended for speech and press.'21
116
The Court could not accept the generality of this historic view in New York Times Co. v. Sullivan, supra. There the Court held that the First Amendment was intended to forbid actions for seditious libel and that defamation actions by public officials were therefore not subject to the traditional law of libel and slander. If these officials (and, later, public figures occupying semiofficial or influential, although private, positions) were to recover, they were required to prove not only that the publication was false but also that it was knowingly false or published with reckless disregard for its truth or falsity. This view that the First Amendment was written to forbid seditious libel reflected one side of the dispute that reged at the turn of the nineteenth century22 and also mirrored the views of some later scholars.23
117
The central meaning of New York Times, and for me the First Amendment as it relates to libel laws, is that seditious libel criticism of government and public officials—falls beyond the police power of the State. 376 U.S., at 273—276, 84 S.Ct., at 722 724.24 In a democratic society such as ours, the citizen has the privilege of criticizing his government and its officials. But neither New York Times nor its progeny suggests that the First Amendment intended in all circumstances to deprive the private citizen of his historic recourse to redress published falsehoods damaging to reputation or that, contrary to history and precedent, the Amendment should now be so interpreted. Simply put, the First Amendment did not confer a 'license to defame the citizen.' W. Douglas, The Right of the People 36 (1958).
118
I do not labor the foregoing matters to contend that the Court is foreclosed from reconsidering prior interpretations of the First Amendment.25 But the Court apparently finds a clean slate where in fact we have instructive historical experience dating from long before the first settlors, with their notions of democratic government and human freedom, journeyed to this land. Given this rich background of history and precedent and because we deal with fundamentals when we construe the First Amendment, we should proceed with care and be presented with more compelling reasons before we jettison the settled law of the States to an even more radical extent.26
III
119
The Court concedes that the dangers of self-censorship are insufficient to override the state interest in protecting the reputation of private individuals who are both more helpless and more deserving of state concern than public persons with more access to the media to defend themselves. It therefore refuses to condition the private plaintiff's recovery on a showing of intentional or reckless falsehood as required by New York Times. But the Court nevertheless extends the reach of the First Amendment to all defamation actions by requiring that the ordinary citizen, when libeled by a publication defamatory on its face, must prove some degree of culpability on the part of the publisher beyond the circulation to the public of a damaging falsehood. A rule at least as strict would be called for where the defamatory character of the publication is not apparent from its face. Ante, at 348.27 Furthermore, if this major hurdle to establish liability is surmounted, the Court requires proof of actual injury to reputation before any damages for such injury may be awarded.
120
The Court proceeds as though it were writing on tabula rasa and suggests that it must mediate between two unacceptable choices on the one hand, the rigors of the New York Times rule which the Court thinks would give insufficient recognition to the interest of the private plaintiff, and, on the other hand, the prospect of imposing 'liability without fault' on the press and others who are charged with defamatory utterances. Totally ignoring history and settled First Amendment law, the Court purports to arrive at an 'equitable compromise,' rejecting both what it considers faultless liability and New York Times malice, but insisting on some intermediate degree of fault. Of course, the Court necessarily discards the contrary judgment arrived at in the 50 States that the reputation interest of the private citizen is deserving of considerably more protection.
121
The Court evinces a deep-seated antipathy to 'liability without fault.' But this catch-phrase has no talismanic significance and is almost meaningless in this context where the Court appears to be addressing those libels and slanders that are defamatory on their face and where the publisher is no doubt aware from the nature of the material that it would be inherently damaging to reputation. He publishes notwithstanding, knowing that he will inflict injury. With this knowledge, he must intend to inflict that injury, his excuse being that he is privileged to do so—that he has published the truth. But as it turns out, what he has circulated to the public is a very damaging falsehood. Is he nevertheless 'faultless'? Perhaps it can be said that the mistake about his defense was made in good faith, but the fact remains that it is he who launched the publication knowing that it could ruin a reputation.
122
In these circumstances, the law has heretofore put the risk of falsehood on the publisher where the victim is a private citizen and no grounds of special privilege are invoked. The Court would now shift this risk to the victim, even though he has done nothing to invite the calumny, is wholly innocent of fault, and is helpless to avoid his injury. I doubt that jurisprudential resistance to liability without fault is sufficient ground for employing the First Amendment to revolutionize the law of libel, and in my view, that body of legal rules poses no realistic threat to the press and its service to the public. The press today is vigorous and robust. To me, it is quite incredible to suggest that threats of libel suits from private citizens are causing the press to refrain from publishing the truth. I know of no hard facts to support that proposition, and the Court furnishes none.
123
The communications industry has increasingly become concentrated in a few powerful hands operating very lucrative businesses reaching across the Nation and into almost every home.28 Neither the industry as a whole nor its individual components are easily intimidated, and we are fortunate that they are not. Requiring them to pay for the occasional damage they do to private reputation will play no substantial part in their future performance or their existence.
124
In any event, if the Court's principal concern is to protect the communications industry from large libel judgments, it would appear that its new requirements with respect to general and punitive damages would be ample protection. Why it also feels compelled to escalate the threshold standard of liability I cannot fathom, particularly when this will eliminate in many instances the plaintiff's possibility of securing a judicial determination that the damaging publication was indeed false, whether or not he is entitled to recover money damages. Under the Court's new rules, the plaintiff must prove not only the defamatory statement but also some degree of fault accompanying it. The publication may be wholly false and the wrong to him unjustified, but his case will nevertheless be dismissed for failure to prove negligence or other fault on the part of the publisher. I find it unacceptable to distribute the risk in this manner and force the wholly innocent victim to bear the injury; for, as between the two, the defamer is the only culpable party. It is he who circulated a falsehood that he was not required to publish.
125
It is difficult for me to understand why the ordinary citizen should himself carry the risk of damage and suffer the injury in order to vindicate First Amendment values by protecting the press and others from liability for circulating false information. This is particularly true because such statements serve no purpose whatsoever in furthering the public interest or the search for truth but, on the contrary, may frustrate that search and at the same time inflict great injury on the defenseless individual. The owners of the press and the stockholders of the communications enterprises can much better bear the burden. And if they cannot, the public at large should somehow pay for what is essentially a public benefit derived at private expense.
IV
A.
126
Not content with escalating the threshold requirements of establishing liability, the Court abolishes the ordinary damages rule, undisturbed by New York Times and later cases, that, as to libels or slanders defamatory on their face, injury to reputation is presumed and general damages may be awarded along with whatever special damages may be sought. Apparently because the Court feels that in some unspecified and unknown number of cases, plaintiffs recover where they have suffered no injury or recover more than they deserve, it dismisses this rule as an 'oddity of tort law.' The Court thereby refuses in any case to accept the fact of wide dissemination of a per se libel as prima facie proof of injury sufficient to survive a motion to dismiss at the close of plaintiff's case.
127
I have said before, but it bears repeating, that even if the plaintiff should recover no monetary damages, he should be able to prevail and have a judgment that the publication is false. But beyond that, courts and legislatures literally for centuries have thought that in the generality of cases, libeled plaintiffs will be seriously shortchanged if they must prove the extent of the injury to their reputations. Even where libels or slanders are not on their face defamatory and special damage must be shown, when that showing is made, general damages for reputation injury are recoverable without specific proof.29
128
The Court is clearly right when at one point it states that 'the law of defamation is rooted in our experience that the truth rarely catches up with a lie.' Ante, at 344 n. 9. But it ignores what that experience teaches, viz., that damage to reputation is recurringly difficult to prove and that requiring actual proof would repeatedly destroy and chance for adequate compensation. Eminent authority has warned that
129
'it is clear that proof of actual damage will be impossible in a great many cases where, from the character of the defamatory words and the circumstances of publication, it is all but certain that serious harm has resulted in fact.' W. Prosser, Law of Torts § 112, p. 765 (4th ed. 1971).30
130
The Court fears uncontrolled awards of damages by juries, but that not only denigrates the good sense of most jurors—it fails to consider the role of trial and appellate courts in limiting excessive jury verdicts where no reasonable relationship exists between the amount awarded and the injury sustained.31 Available information tends to confirm that American courts have ably discharged this responsibility.32
131
The new rule with respect to general damages appears to apply to all libels or slanders, whether defamatory on their face or not, except, I gather, when the plaintiff proves intentional falsehood or reckless disregard. Although the impact of the publication on the victim is the same, in such circumstances the injury to reputation may apparently be presumed in accordance with the traditional rule. Why a defamatory statement is more apt to cause injury if the lie is intentional than when it is only negligent, I fail to understand. I suggest that judges and juries who must live by these rules will find them equally incomprehensible
B
132
With a flourish of the pen, the Court also discards the prevailing rule in libel and slander actions that punitive damages may be awarded on the classic grounds of common-law malice, that is, "(a)ctual malice' in the sense of ill will or fraud or reckless indifference to consequences.' C. McCormick, Law of Damages § 118, p. 431 (1935); see also W. Prosser, supra, § 113, p. 772; 1 A. Hanson, Libel and Related Torts 163, p. 133 (1969); Note, Developments in the Law Defamation, 69 Harv.L.Rev. 875, 938 (1956); Cal.Civ.Code § 48a(4)(d) (1954). In its stead, the Court requires defamation plaintiffs to show intentional falsehood or reckless disregard for the truth or falsity of the publication. The Court again complains about substantial verdicts and the possibility of press self-censorship, saying that punitive damages are merely 'private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence.' Ante, at 350. But I see no constitutional difference between publishing with reckless disregard for the truth, where punitive damages will be permitted, and negligent publication where they will not be allowed. It is difficult to understand what is constitutionally wrong with assessing punitive damages to deter a publisher from departing from those standards of care ordinarily followed in the publishing industry, particularly if common-law malice is also shown.
133
I note also the questionable premise that 'juries assess punitive damages in wholly unpredictable amounts bearing no necessary relation to the actual harm caused.' Ibid. This represents an inaccurate view of established practice, 'another of those situations in which judges, largely unfamiliar with the relatively rare actions for defamation, rely on words without really going behind them . . ..'33 While a jury award in any type of civil case may certainly be unpredictable, trial and appellate courts have been increasingly vigilant in ensuring that the jury's result is 'based upon a rational consideration of the evidence and the proper application of the law.' Reynolds v. Pegler, 123 F.Supp. 36, 39 (S.D.N.Y.1954), aff'd, 223 F.2d 429 (CA2), cert. denied, 350 U.S. 846, 76 S.Ct. 80, 100 L.Ed. 754 (1955). See supra, nn. 31—32. Moreover, some courts require that punitive damages bear a reasonable relation to the compensatory damages award.34 Still others bar common-law punitive damages or condition their award on a refusal to print a retraction.35
134
'The danger . . . of immoderate verdicts, is certainly a real one, and the criterion to be applied by the judge in setting or reducing the amount is concededly a vague and subjective one. Nevertheless the verdict may be twice submitted by the complaining defendant to the common sense of trained judicial minds, once on motion for new trial and again on appeal, and it must be a rare instance when an unjustifiable award escapes correction.' C. McCormick, supra, § 77, p. 278.
135
The Court points to absolutely no empirical evidence to substantiate its premise. For my part, I would require something more substantial than an undifferentiated fear of unduly burdensome punitive damages awards before retooling the established common-law rule and depriving the States of the opportunity to experiment with different methods for guarding against abuses.
136
Even assuming the possibility that some verdicts will be 'excessive,' I cannot subscribe to the Court's remedy. On its face it is a classic example of judicial overkill. Apparently abandoning the salutary New York Times policy of case-by-case "independent examination of the whole record' . . . so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression,'36 the Court substitutes an inflexible rule barring recovery of punitive damages absent proof of constitutional malice. The First Amendment is a majestic statement of a free people's dedication to 'uninhibited, robust, and wide-open' debate on public issues,37 but we do it a grave disservice when we needlessly spend its force.38 For almost 200 years, punitive damages and the First Amendment have peacefully coexisted. There has been no demonstration that state libel laws as they relate to punitive damages necessitate the majority's extreme response. I fear that those who read the Court's decision will find its words inaudible, for the Court speaks 'only (with) a voice of power, not of reason.' Mapp v. Ohio, 367 U.S. 643, 686, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (Harlan, J., dissenting).
V
137
In disagreeing with the Court on the First Amendment's reach in the area of state libel laws protecting nonpublic persons, I do not repudiate the principle that the First 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, that a free press is a condition of a free society.' Associated Press v. United States, 326 U.S. 1, 20, 65 S.Ct. 1416, 1425, 89 L.Ed. 2013 (1945); see also Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, at 260, 94 S.Ct. 2831, at 2840, 41 L.Ed.2d 730 (White, J., concurring). I continue to subscribe to the New York Times decision and those decisions extending its protection to defamatory falsehoods about public persons. My quarrel with the Court stems from its willingness 'to sacrifice good sense to a syllogism'39—to find in the New York Times doctrine an infinite elasticity. Unfortunately, this expansion is the latest manifestation of the destructive potential of any good idea carried out to its logical extreme.
138
Recovery under common-law standards for defamatory falsehoods about a private individual, who enjoys no 'general fame or notoriety in the community,' who is not 'pervasive(ly) involve(d) in the affairs of society,' and who does not 'thrust himself into the vortex of (a given) public issue . . . in an attempt to influence it outcome,'40 is simply not forbidden by the First Amendment. A distinguished private study group put it this way:
139
'Accountability, like subjection to law, is not necessarily a net subtraction from liberty.' 'The First Amendment was intended to guarantee free expression, not to create a privileged industry.' Commission on Freedom of the Press, A Free and Responsible Press 130, 81 (1947).
140
I fail to see how the quality or quantity of public debate will be promoted by further emasculation of state libel laws for the benefit of the news media.41 If anything, this trend may provoke a new and radical imbalance in the communications process. Cf. Barron, Access to the Press—A New First Amendment Right, 80 Harv.L.Rev. 1641, 1657 (1967). It is not at all inconceivable that virtually unrestrained defamatory remarks about private citizens will discourage them from speaking out and concerning themselves with social problems. This would turn the First Amendment on its head. Note, The Scope of First Amendment Protection for Good-Faith Defamatory Error, 75 Yale L.J. 642, 649 (1966); Merin, 11 Wm. & Mary L.Rev., at 418. David Riesman, writing in the midst of World War II on the fascists' effective use of defamatory attacks on their opponents, commented: 'Thus it is that the law of libel, with its ecclesiastic background and domestic character, its aura of heart-balm suits and crusading nineteenth-century editors, becomes suddenly important for modern democratic survival.' Democracy and Defamation: Fair Game and Fair Comment I, 42 Col.L.Rev. 1085, 1088 (1942).
141
This case ultimately comes down to the importance the Court attaches to society's 'pervasive and strong interest in preventing and redressing attacks upon reputation.' Rosenblatt v. Baer, 383 U.S. at 86, 86 S.Ct. at 676. From all that I have seen, the Court has miscalulated and denigrates that interest at a time when escalating assaults on individuality and personal dignity counsel otherwise.42 At the very least, the issue is highly debatable, and the Court has not carried its heavy burden of proof to justify tampering with state libel laws.43
142
While some risk of exposure 'is a concomitant of life in a civilized community,' Time, Inc. v. Hill, 385 U.S. 374, 388, 87 S.Ct. 534, 542 (1967), the private citizen does not bargain for defamatory falsehoods. Nor is society powerless to vindicate unfair injury to his reputation.
143
'It is a fallacy . . . to assume that the First Amendment is the only guidepost in the area of state defamation laws. It is not. . . .
144
'The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being—a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system.' Rosenblatt v. Baer, supra, 383 U.S., at 92, 86 S.Ct., at 679 (Stewart, J., concurring).
145
The case against razing state libel laws is compelling when considered in light of the increasingly prominent role of mass media in our society and the awesome power it has placed in the hands of a select few.44 Surely, our political 'system cannot flourish if regimentation takes hold.' Public Utilities Comm'n v. Pollak, 343 U.S. 451, 469, 72 S.Ct. 813, 824, 96 L.Ed. 1068 (1952) (Douglas, J., dissenting). Nor can it survive if our people are deprived of an effective method of vindicating their legitimate interest in their good names.45
146
Freedom and human dignity and decency are not antithetical. Indeed, they cannot survive without each other. Both exist side-by-side in precarious balance, one always threatening to over-whelm the other. Our experience as a Nation testifies to the ability of our democratic institutions to harness this dynamic tension. One of the mechanisms seized upon by the common law to accommodate these forces was the civil libel action tried before a jury of average citizens. And it has essentially fulfilled its role. Not because it is necessarily the best or only answer, but because
147
'the juristic philosophy of the common law is at bottom the philosophy of pragmatism. Its truth is relative, not absolute. The rule that functions well produces a title deed to recognition.' B. Cardozo, Selected Writings 149 (Hall ed.1947).
148
In our federal system, there must be room for allowing the States to take diverse approaches to these vexing questions. We should 'continue to forbear from fettering the States with an adamant rule which may embarrass them in coping with their own peculiar problems . . ..' Mapp v. Ohio, 367 U.S. at 681, 81 S.Ct. at 1706 (Harlan, J., dissenting); see also Murnaghan, From Figment to Fiction to Philosophy—The Requirement of Proof of Damages in Libel Actions, 22 Cath.U.L.Rev. 1, 38 (1972). Cf. Younger v. Harris, 401 U.S. 37, 44—45, 91 S.Ct. 746, 750—751, 27 L.Ed.2d 669 (1971). Whether or not the course followed by the majority is wise, and I have indicated my doubts that it is, our constitutional scheme compels a proper respect for the role of the States in acquitting their duty to obey the Constitution. Finding no evidence that they have shirked this responsibility, particularly when the law of defamation is even now in transition, I would await some demonstration of the diminution of freedom of expression before acting.
149
For the foregoing reasons, I would reverse the judgment of the Court of Appeals and reinstate the jury's verdict.
1
Petitioner filed a cross-motion for summary judgment on grounds not specified in the record. The court denied petitioner's cross-motion without discussion in a memorandum opinion of September 16, 1970.
2
322 F.Supp. 997 (1970). Petitioner asserts that the entry of judgment n.o.v. on the basis of his failure to show knowledge of falsity or reckless disregard for the truth constituted unfair surprise and deprived him of a full and fair opportunity to prove 'actual malice' on the part of respondent. This contention is not supported by the record. It is clear that the trial court gave petitioner no reason to assume that the New York Times privilege would not be available to respondent. The court's memorandum opinion denying respondent's pretrial motion for summary judgment does not state that the New York Times standard was inapplicable to this case. Rather, it reveals that the trial judge thought it possible for petitioner to make a factual showing sufficient to overcome respondent's claim of constitutional privilege. It states in part:
'When there is a factual dispute as to the existence of actual malice, summary judgment is improper.
'In the instant case a jury might infer from the evidence that (respondent's) failure to investigate the truth of the allegations, coupled with its receipt of communications challenging the factual accuracy of this author in the past, amounted to actual malice, that is, 'reckless disregard' of whether the allegations were true or not. New York Times (Co.) v. Sullivan, (376 U.S. 254,) 279—280 (84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964)).' Mem.Op., Sept. 16, 1970.
Thus, petitioner knew or should have known that the outcome of the trial might hinge on his ability to show by clear and convincing evidence that respondent acted with reckless disregard for the truth. And this question remained open throughout the trial. Although the court initially concluded that the applicability of the New York Times rule depended on petitioner's status as a public figure, the court did not decide that petitioner was not a public figure until all the evidence had been presented. Thus petitioner had every opportunity, indeed incentive, to prove 'reckless disregard' if he could, and he in fact attempted to do so. The record supports the observation by the Court of Appeals that petitioner 'did present evidence of malice (both the 'constitutional' and the 'ill will' type) to support his damage claim and no such evidence was excluded . . ..' 471 F.2d 801, 807 n. 15 (1972).
3
The court stated:
'(Petitioner's) considerable statute as a lawyer, author, lecturer, and participant in matters of public import undermine(s) the validity of the assumption that he is not a 'public figure' as that term has been used by the progeny of New York Times. Nevertheless, for purposes of decision we make that assumption and test the availability of the claim of privilege by the subject matter of the article.' Id., at 805.
4
In the Court of Appeals petitioner made an ingenious but unavailing attempt to show that respondent's defamatory charge against him concerned no issue of public or general interest. He asserted that the subject matter of the article was the murder trial of Officer Nuccio and that he did not participate in that proceeding. Therefore, he argued, even if the subject matter of the article generally were protected by the New York Times privilege, under the opinion of the Rosenbloom plurality, the defamatory statements about him were not. The Court of Appeals rejected this argument. It noted that the accusations against petitioner played an integral part in respondent's general thesis of a nationwide conspiracy to harass the police:
'(W)e may also assume that the article's basic thesis is false. Nevertheless, under the reasoning of New York Times Co. v. Sullivan, even a false statement of fact made in support of a false thesis is protected unless made with knowledge of its falsity or with reckless disregard of its truth or falsity. It would undermine the rule of that case to permit the actual falsity of a statement to determine whether or not its publisher is entitled to the benefit of the rule.
'If, therefore, we put to one side the false character of the article and treat it as though its contents were entirely true, it cannot be denied that the comments about (petitioner) were integral to its central thesis. They must be tested under the New York Times standard.' 471 F.2d at 806.
We think that the Court of Appeals correctly rejected petitioner's argument. Its acceptance might lead to arbitrary imposition of liability on the basis of an unwise differentiation among kinds of factual misstatements. The present case illustrates the point. Respondent falsely portrayed petitioner as an architect of the criminal prosecution against Nuccio. On its face this inaccuracy does not appear defamatory. Respondent also falsely labeled petitioner a 'Leninist' and a 'Communist-fronter.' These accusations are generally considered defamatory. Under petitioner's interpretation of the 'public or general interest' test, respondent would have enjoyed a constitutional provilege to publish defamatory falsehood if petitioner had in fact been associated with the criminal prosecution. But this would mean that the seemingly innocuous mistake of confusing petitioner's role in the litigation against Officer Nuccio would destroy the privilege otherwise available for calling petitioner a Communist-fronter. Thus respondent's privilege to publish statements whose content should have alerted it to the danger of injury to reputation would hinge on the accuracy of statements that carried with them no such warning. Assuming that none of these statements was published with knowledge of falsity or with reckless disregard for the truth, we see no reason to distinguish among the inaccuracies.
5
Mr. Justice Douglas did not participate in the consideration or decision of Rosenbloom.
6
New York Times and later cases explicated the meaning of the new standard. In New York Times the Court held that under the circumstances the newspaper's failure to check the accuracy of the advertisement against news stories in its own files did not establish
reckless disregard for the truth. 376 U.S., at 287—288, 84 S.Ct., at 729—730. In St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968), the Court equated reckless disregard of the truth with subjective awareness of probable falsity: 'There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.' In Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 88 S.Ct. 197, 19 L.Ed.2d 248 (1967), the Court emphasized the distinction between the New York Times test of knowledge of falsity or reckless disregard of the truth and 'actual malice' in the traditional sense of ill-will. Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), made plain that the new standard applied to criminal libel laws as well as to civil actions and that it governed criticism directed at 'anything which might touch on an official's fitness for office.' Id., at 77, 85 S.Ct., at 217. Finally, in Rosenblatt v. Baer, 383 U.S. 75, 85, 86 S.Ct. 669, 676, 15 L.Ed.2d 597 (1966), the Court stated that 'the 'public official' designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct or governmental affairs.'
In Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967), the Court applied the New York Times standard to actions under an unusual state statute. The statute did not create a cause of action for libel. Rather, it provided a remedy for unwanted publicity. Although the law allowed recovery of damages for harm caused by exposure to public attention rather than by factual inaccuracies, it recognized truth as a complete defense. Thus, nondefamatory factual errors could render a publisher liable for something akin to invasion of privacy. The Court ruled that the defendant in such an action could invoke the New York Times privilege regardless of the fame or anonymity of the plaintiff. Speaking for the Court, Mr. Justice Brennan declared that this holding was not an extension of New York Times but rather a parallel line of reasoning applying that standard to this discrete context:
'This is neither a libel action by a private individual nor a statutory action by a public official. Therefore, although the First Amendment principles pronounced in New York Times guide our conclusion, we reach that conclusion only by applying these principles in this discrete context. It therefore serves no purpose to distinguish the facts here from those in New York Times. Were this a libel action, the distinction which has been suggested between the relative opportunities of the public official and the private individual to rebut defamatory charges might be germane. And the additional state interest in the protection of the individual against damage to his reputation would be involved. Cf. Rosenblatt v. Baer, 383 U.S. 75, 91, 86 S.Ct. 669, 15 L.Ed.2d 597 (Stewart, J., concurring).' 385 U.S., at 390—391, 87 S.Ct., at 543.
7
Professor Kalven once introduced a discussion of these cases with the apt heading, 'You Can't Tell the Players without a Score Card.' Kalven, The Reasonable Man and the First Amendment: Hill, Butts, and Walker, 1967 Sup.Ct.Rev. 267, 275. Only three other Justices joined Mr. Justice Harlan's analysis of the issues involved. In his concurring opinion, Mr. Chief Justice Warren stated the principle for which these cases stand—that the New York Times test reaches both public figures and public officials. Mr. Justice Brennan and Mr. Justice White agreed with the Chief Justice on that question. Mr. Justice Black and Mr. Justice Douglas reiterated their view that publishers should have an absolute immunity from liability for defamation, but they acquiesced in the Chief Justice's reasoning in order to enable a majority of the Justices to agree on the question of the appropriate constitutional privilege for defamation of public figures.
8
As Thomas Jefferson made the point in his first Inaugural Address: 'If there be any among us who would wish to dissolve this Union or change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.'
9
Of course, an opportunity for rebuttal seldom suffices to undo harm of defamatory falsehood. Indeed, the law of defamation is rooted in our experience that the truth rarely catches up with a lie. But the fact that the self-help remedy of rebuttal, standing alone, is inadequate to its task does not mean that it is irrelevant to our inquiry.
10
Our caveat against strict liability is the prime target of Mr. Justice WHITE'S dissent. He would hold that a publisher or broadcaster may be required to prove the truth of a defamatory statement concerning a private individual and, failing such proof, that the publisher or broadcaster may be held liable for defamation even though he took every conceivable precaution to ensure the accuracy of the offending statement prior to its dissemination. Post, at 388—392. In Mr. Justice WHITE's view, one who publishes a statement that later turns out to be inaccurate can never be 'without fault' in any meaningful sense, for '(i)t is he who circulated a falsehood that he was not required to publish.' Post, at 392 (emphasis added).
Mr. Justice WHITE characterizes New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), as simply a case of seditious libel. Post, at 387. But that rationale is certainly inapplicable to Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), where Mr. Justice White joined four other Members of the Court to extend the knowing-or-reckless-falsity standard to media defamation of persons identified as public figures but not connected with the Government. Mr. Justice WHITE now suggests that he would abide by that vote, post, at 398, but the full thrust of his dissent—as we read it—contradicts that suggestion. Finally, in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 57, 91 S.Ct. 1811, 1827, 29 L.Ed.2d 296 (1971), Mr. Justice White voted to apply the New York Times privilege to media defamation of an individual who was neither a public official nor a public figure. His opinion states that the knowing-or-reckless-falsity standard should apply to media 'comment upon the official actions of public servants,' id., at 62, 91 S.Ct, at 1829 including defamatory falsehood about a person arrested by the police. If adopted by the Court, this conclusion would significantly extend the New York Times privilege.
Mr. Justice WHITE asserts that our decision today 'trivializes and denigrates the interest in reputation,' Miami Herald Publishing Co. v. Tornillo, 418 U.S., at 262, 94 S.Ct., at 2842 (concurring opinion), that it 'scuttle(s) the libel laws of the States in . . . wholesale fashion' and renders ordinary citizens 'powerless to protect themselves.' Post, at 370. In light of the progressive extension of the knowing-or-reckless-falsity requirement detailed in the preceding paragraph, one might have viewed today's decision allowing recovery under any standard save strict liability as a more generous accommodation of the state interest in comprehensive reputational injury to private individuals than the law presently affords.
11
Curtis Publishing co. v. Butts, supra, 388 U.S., at 155, 87 S.Ct., at 1991.
1
See, e.g., Rosenblatt v. Baer, 383 U.S. 75, 90, 86 S.Ct. 669, 678, 15 L.Ed.2d 597 (concurring).
2
In 1798 Jefferson stated:
'(The First Amendment) thereby guard(s) in the same sentence, and under the same words, the freedom of religion, of speech, and of the press: insomuch, that whatever violates either, throws down the sancturary which covers the others, and that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals. . . .' 8 The Works of Thomas Jefferson 464—465 (Ford ed. 1904) (emphasis added).
3
See, e.g., Act of July 4, 1840, c. 45, 6 Stat. 802, accompanied by H.R.Rep.No.86, 26th Cong., 1st Sess. (1840).
4
Senator Calhoun in reporting to Congress assumed the invalidity of the Act to be a matter 'which no one now doubts.' Report with Senate Bill No. 122, S.Doc. No. 118, 24th Cong., 1st Sess., 3 (1836).
5
See Stromberg v. California, 283 U.S. 359, 368—369, 51 S.Ct. 532, 535—536, 75 L.Ed. 1117.
6
Since this case involves a discussion of public affairs, I need not decide at this point whether the First Amendment prohibits all libel actions. 'An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment.' New York Times Co. v. Sullivan, 376 U.S. 254, 297, 84 S.Ct. 710, 735, 11 L.Ed.2d 686 (Black, J., concurring) (emphasis added). But 'public affairs' includes a great deal more than merely political affairs. Matters of science, economics, business, art, literature, etc., are all matters of interest to the general public. Indeed, any matter of sufficient general interest to prompt media coverage may be said to be a public affair. Certainly police killings, 'Communist conspiracies,' and the like qualify.
'A more regressive view of free speech has surfaced but it has thus far gained no judicial acceptance. Solicitor General Bork has stated:
'Constitutional protection should be accorded only to speech that is explicitly political. There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary or that variety of expression we call obscene or pornographic. Moreover, within that category of speech we ordinarily call political, there should be no constitutional obstruction to laws making criminal any speech that advocates forcible overthrow of the government or the violation of any law.' Bork, Neutral Principles and Some First Amendment Problems, 47 Ind.L.J. 1, 20 (1971).
According to this view, Congress, upon finding a painting aesthetically displeasing or a novel poorly written or a revolutionary new scientific theory unsound could constitutionally prohibit exhibition of the painting, distribution of the book or discussion of the theory. Congress might also proscribe the advocacy of the violation of any law, apparently without regard to the law's constitutionality. Thus, were Congress to pass a blatantly invalid law such as one prohibiting newspaper editorials critical of the Government, a publisher might be punished for advocating its violation. Similarly, the late Dr. Martin Luther King, Jr., could have been punished for advising blacks to peacefully sit in the front of buses or to ask for service in restaurants segregated by law.
7
See Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288. As Mr. Justice Black has noted, by this view the test becomes 'whether the government has an interest in abridging the right involved and, if so, whether that interest is of sufficient importance, in the opinion of a majority of the Supreme Court, to justify the government's action in doing so. Such a doctrine can be used to justify almost any government suppression of First Amendment freedoms. As I have stated many times before, I cannot subscribe to this doctrine because I believe that the First Amendment's unequivocal command that there shall be no abridgement of the rights of free speech shows that the men who drafted our Bill of Rights did all the 'balancing' that was to be done in this field.' H. Black, A Constitutional Faith 52 (1969).
8
See, e.g., Bridges v. California, 314 U.S. 252, 263 n. 6, 62 S.Ct. 190, 194, 86 L.Ed. 192 (Black, J.); Murdock v. Pennsylvania, 319 U.S. 105, 108, 63 S.Ct. 870, 872, 87 L.Ed. 1292 (Douglas, J.); Saia v. New York, 334 U.S. 558, 560, 68 S.Ct. 1148, 1149, 92 L.Ed. 1574 (Douglas, J.); Talley v. California, 362 U.S. 60, 62, 80 S.Ct. 536, 537, 4 L.Ed.2d 559 (Black, J.); DeGregory v. Attorney General of New Hampshire, 383 U.S. 825, 828, 86 S.Ct. 1148, 1150, 16 L.Ed.2d 292 (Douglas, J.); Elfbrandt v. Russell, 384 U.S. 11, 18, 86 S.Ct. 1238, 1241, 16 L.Ed.2d 321 (Douglas, J.); Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1436, 16 L.Ed.2d 484 (Black, J.); United Mine Workers v. Illinois State Bar Ass'n, 389 U.S. 217, 221—222 and n. 4, 88 S.Ct. 353, 355—356, 19 L.Ed.2d 426 (Black, J.).
1
A fortiori I disagree with my Brother WHITE'S view that the States should have free rein to impose strict liability for defamation in cases not involving public persons.
2
A respected commentator has observed that factors other than purely legal constraints operate to control the press:
'Traditions, attitudes, and general rules of political conduct are far more important controls. The fear of opening a credibility gap, and thereby lessening one's influence, holds some participants in check. Institutional pressures in large organizations, including some of the press, have a similar effect; it is difficult for an organization to have an open policy of making intentionally false accusations.' T. Emerson, The System of Freedom of Expression 538 (1970).
Typical of the press' own ongoing self-evaluation is a proposal to establish a national news council, composed of members drawn from the public and the journalism profession, to examine and report on complaints concerning the accuracy and fairness of news reporting by the largest newsgathering sources. Twentieth Century Fund Task Force Report or a National News Council, A Free and Responsive Press (1973). See also Comment, The Expanding Constitutional Protection for the News Media from Liability for Defamation: Predictability and the New Synthesis, 70 Mich.L.Rev. 1547, 1569—1570 (1972).
3
The Court, taking a novel step, would not limit application of First Amendment protection to private libels involving issues of general or public interest, but would forbid the States from imposing liability without fault in any case where the substance of the defamatory statement made substantial danger to reputation apparent. As in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 44 n. 12, 48—49, n. 17, 91 S.Ct. 1811, 1820, 1822—1823 (1971). I would leave open the question of what constitutional standard, if any, applies when defamatory falsehoods are published or broadcast concerning either a private or public person's activities not within the scope of the general or public interest.
Parenthetically, my Brother WHITE argues that the Court's view and mine will prevent a plaintiff—unable to demonstrate some degree of fault—from vindicating his reputation by securing a judgment that the publication was false. This argument overlooks the possible enactment of statutes, not requiring proof of fault, which provide for an action for retraction or for publication of a court's determination of falsity if the plaintiff is able to demonstrate that false statements have been published concerning his activities. Cf. Note, Vindication of the Reputation of a Public Official, 80 Harv.L.Rev. 1730, 1739—1747 (1967). Although it may be that questions could be raised concerning the constitutionality of such statutes, certainly nothing I have said today (and, as I read the Court's opinion, nothing said there) should be read to imply that a private plaintiff, unable to prove fault, must inevitably be denied the opportunity to secure a judgment upon the truth or falsity of statements published about him. Cf. Rosenbloom v. Metromedia, Inc., supra, at 47 and n. 15, 91 S.Ct., at 1821.
1
Restatement of Torts § 559 (1938); see also W. Prosser, Law of Torts § 111, p. 739 (4th ed. 1971); 1 A. Hanson, Libel and Related Torts 14, pp. 21—22 (1969); 1 F. Harper & F. James, The Law of Torts § 5.1, pp. 349—350 (1956).
2
The observations in Part I of this opinion as to the current state of the law of defamation in the various States are partially based upon the Restatement of Torts, first published in 1938, and Tentative Drafts Nos. 11 and 12 of Restatement of Torts (Second), released in 1965 and 1966, respectively. The recent transmittal of Tentative Draft No. 20, dated April 25, 1974, to the American Law Institute for its consideration has resulted in the elimination of much of the discussion of the prevailing defamation rules and the suggested changes in many of the rules themselves previously found in the earlier Tentative Drafts. This development appears to have been largely influenced by the draftsmen's 'sense for where the law of this important subject should be thought to stand.' Restatement (Second) of Torts, p. vii (Tent. Draft No. 20, Apr. 25, 1974). It is evident that, to a large extent, these latest views are colored by the plurality opinion in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971). See, e.g., Restatement (Second) of Torts (Second), supra, at xiii, §§ 569, 580, 581A, 581B, 621. There is no indication in the latest draft, however, that the conclusions reached in Tentative Drafts Nos. 11 and 12 are not an accurate reflection of the case law in the States in the mid-1960's prior to the developments occasioned by the plurality opinion in Rosenbloom. See infra, at 374—375.
3
See also W. Prosser, supra, n. 1, § 112, p. 752 and n. 85; Murnaghan, From Figment to Fiction to Philosophy—The Requirement of Proof of Damages in Libel Actions, 22 Cath.U.L.Rev. 1, 11—13 (1972).
4
Proof of the defamation itself established the fact of injury and the existence of some damage to the right of reputation, and the jury was permitted, even without any other evidence, to assess damages that were considered to be the natural or probable consequences of the defamatory words. Restatement of Torts § 621, comment a, p. 314 (1938); see also C. Gatley, Libel and Slander 1004 (6th ed. 1967); M. Newell, Slander and Libel § 721, p. 810 (4th ed. 1924; see generally C. McCormick, Law of Damages § 116, pp. 422—430 (1935). In this respect, therefore, the damages were presumed because of the impossibility of affixing an exact monetary amount for present and future injury to the plaintiff's reputation, wounded feelings and humiliation, loss of business, and any consequential physical illness or pain. Ibid.
5
See also Prosser, supra, n. 1, § 112, p. 761; Harper & James, supra, n. 1, § 5.14, p. 388; Note, Developments in the Law Defamation, 69 Harv.L.Rev. 875, 939—940 (1956).
6
Also actionable per se were those libels where the imputation, although not apparent from the material itself, would have been slander per se if spoken rather than written.
7
Restatement (Second) of Torts § 569, pp. 29—45, 47—48 (Tent. Draft No. 12, Apr. 27, 1966); see also Murnaghan, supra, n. 3.
8
Applying settled Illinois law, the District Court in this case held that it is libel per se to label someone a Communist. 306 F.Supp. 310 (N.D.Ill.1969).
9
This appears to have been the law in Illinois at the time Gertz brought his libel suit. See, e.g., Brewer v. Hearst Publishing Co., 185 F.2d 846 (CA7 1950); Hotz v. Alton Telegraph Printing Co., 324 Ill.App. 1, 57 N.E.2d 137 (1944); Cooper v. Illinois Publishing & Printing Co., 218 Ill.App. 95 (1920).
10
See, e.g., West v. Northern Publishing Co., 487 P.2d 1304, 1305—1306 (Alaska 1971) (article linking owners of taxicab companies to illegal liquor sales to minors); Gallman v. Carnes, 254 Ark. 987, 992, 497 S.W.2d 47, 50 (1973) (matter concerning state law school professor and assistant dean); Belli v. Curtis Publishing Co., 25 Cal.App.3d 384, 102 (Cal.Rptr. 122 (1972) (article concerning attorney
with national reputation); Moriarty v. Lippe, 162 Conn. 371, 378 379, 294 A.2d 326, 330—331 (1972) (publication about certain police officers); Firestone v. Time, Inc., 271 So.2d 745, 750—751 (Fla.1972) (divorce of prominent citizen not a matter of legitimate public concern); State v. Snyder, 277 So.2d 660, 666 668 (La.1973) (criminal defamation prosecution of a defeated mayoral candidate for statements made about another candidate); Twohig v. Boston Herald-Traveler Corp., 362 Mass. 807, 291 N.E.2d 398, 400—401 (1973) (article concerning a candidate's votes in the legislature); Priestley v. Hastings & Sons Publishing Co. of Lynn, 360 Mass. 118, 271 N.E.2d 628 (1971) (article about an architect commissioned by a town to build a school); Harnish v. Herold-Mail Co., Inc., 264 Md. 326, 334—336, 286 A.2d 146, 151 (1972) (article concerning a substandard rental property owned by a member of a city housing authority); Standke v. B. E. Darby & Sons, Inc., 291 Minn. 468, 476—477, 193 N.W.2d 139, 145 (1971) (newspaper editorial concerning performance of grand jurors); Whitmore v. Kansas City Star Co., 499 S.W.2d 45, 49 (Mo.Ct.App.1973) (article concerning a juvenile officer, the operation of a detention home, and a grand jury investigation); Trails West, Inc. v. Wolff, 32 N.Y.2d 207, 214—218, 344 N.Y.S.2d 863, 867—871, 298 N.E.2d 52, 55 58 (1973) (suit against a Congressman for an investigation into the death of schoolchildren in a bus accident); Twenty-Five East 40th Street Restaurant Corp. v. Forbes, Inc., 30 N.Y.2d 595, 331 N.Y.S.2d 29, 282 N.E.2d 118 (1972) (magazine article concerning a restaurant's food); Kent v. City of Buffalo, 29 N.Y.2d 818, 327 N.Y.S.2d 653, 277 N.E.2d 669 (1971) (television station film of plaintiff as a captured robber); Frink v. McEldowney, 29 N.Y.2d 720, 325 N.Y.S.2d 755, 275 N.E.2d 337 (1971) (article concerning an attorney representing a town); Mead v. Horvitz Publishing Co. (9th Dist. Ohio Ct.App. June 13, 1973) (unpublished), cert. denied, 416 U.S. 985, 94 S.Ct. 2388, 40 L.Ed.2d 762 (1974) (financial condition of participants in the development of a large apartment complex involving numerous local contractors); Washington v. World Publishing Co., 506 P.2d 913 (Okl.1973) (article about contract dispute between a candidate for United States Senate and his party's county chairman); Matus v. Triangle Publications, Inc., 445 Pa. 384, 395—399, 286 A.2d 357, 363—365 (1971)
(radio 'talk show' host's discussion of gross overcharging for snow-plowing a driveway not considered an event of public or general concern); Autobuses Internacionales S. De R.L., Ltd. v. El Continental Publishing Co., 483 S.W.2d 506 (Tex.Ct.Civ.App.1972) (newspaper article concerning a bus company's raising of fares without notice and in violation of law); Sanders v. Harris, 213 Va. 369, 372—373, 192 S.E.2d 754, 757—758 (1972) (article concerning English professor at a community college); Old Dominion Branch No. 496 v. Austin, 213 Va. 377, 192 S.E.2d 737 (1972), rev'd, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974) (plaintiff's failure to join a labor union considered not an issue of public or general concern); Chase v. Daily Record, Inc., 83 Wash.2d 37, 41, 515 P.2d 154, 156 (1973) (article concerning port district commissioner); Miller v. Argus Publishing Co., 79 Wash.2d 816, 827, 490 P.2d 101, 109 (1971) (article concerning the backer of political candidates); Polzin v. Helmbrecht, 54 Wis.2d 578, 586, 196 N.W.2d 685, 690 (1972) (letter to editor of newspaper concerning a reporter and the financing of pollution control measures).
The following United States Courts of Appeals have adopted the plurality opinion in Rosenbloom: Cantrell v. Forest City Publishing Co., 484 F.2d 150 (CA6 1973), cert. pending, No. 75 5520 (article concerning family members of the victim of a highly publicized bridge disaster not actionable absent proof of actual malice); Porter v. Guam Publications, Inc., 475 F.2d 744, 745 (CA9 1973) (article concerning citizen's arrest for theft of a cash box considered an event of general or public interest); Cervantes v. Time, Inc., 464 F.2d 986, 991 (CA8 1972) (article concerning mayor and alleged organized crime connections conceded to be a matter of public or general concern); Firestone v. Time, Inc., 460 F.2d 712 (CA5 1972) (magazine article concerning prominent citizen's use of detectives and electronic surveillance in connection with a divorce); Davis v. National Broadcasting Co., 447 F.2d 981 (CA5 1971), aff'g 320 F.Supp. 1070 (E.D.La.1970) (television report about a person caught up in the events surrounding the assassination of President Kennedy considered a matter of public interest). However, at least one Court of Appeals, faced with an appeal from summary judgment in favor of a publisher in a diversity libel suit brought by a Philadelphia retailer, has expressed 'discom-
fort in accepting the Rosenbloom plurality opinion as a definitive statement of the appropriate law . . ..' Gordon v. Random House, Inc., 486 F.2d 1356, 1359 (CA3 1973).
As previously discussed in n. 2, supra, the latest proposed draft of Restatement (Second) of Torts substantially reflects the views of the Rosenbloom plurality. It also anticipates 'that the Supreme Court will hold that strict liability for defamation is inconsistent with the free-speech provision of the First Amendment . . ..' Restatement (Second) of Torts § 569, p. 59 (Tent. Draft No. 20, Apr. 25, 1974), as well as the demise of pre-Rosenbloom damages rules. See id., § 621, pp. 285—288.
11
Merin, Libel and the Supreme Court, 11 Wm. & Mary L.Rev. 371, 373 (1969).
12
A. Sutherland, Constitutionalism in America: Origin and Evolution of Its Fundamental Ideas 118—119 (1965).
13
See generally L. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History (1960).
14
The men who wrote and adopted the First Amendment were steeped in the common-law tradition of England. They read Blackstone, 'a classic tradition of the bar in the United States' and 'the oracle of the common law in the minds of the American Framers . . ..' J. Hurst, The Growth of American Law: The Law Makers 257 (1950); Levy, supra, 7. 13, at 13; see also Sutherland, supra, m. 12, at 124—125; Schick v. United States, 195 U.S. 65, 69, 24 S.Ct. 826, 827, 49 L.Ed. 99 (1904). From him they learned that the major means of accomplishing his speech and press was to prevent prior restraints, the publisher later being subject to legal action if his publication was injurious. 4 W. Blackstone, Commentaries *150—153.
15
See also Meiklejohn, The First Amendment Is An Absolute, 1961 Sup.Ct.Rev. 245, 264:
'First, the Framers initiated a political revolution whose development is still in process throughout the world. Second, like most revolutionaries, the Framers could not foresee the specific issues which would arise as their 'novel idea' exercised its domination over the governing activities of a rapidly developing nation in a rapidly and fundamentally changing world. In that sense, the Framers did not know what they were doing. And in the same sense, it is still true that, after two centuries of experience, we do not know what they were doing, or what we ourselves are now doing.
'In a more abstract and more significant sense, however, both they and we have been aware that the adoption of the principle of self-government by 'The People' of this nation set loose upon us and upon the world at large an idea which is still transforming men's conceptions of what they are and how they may best be governed.'
16
See Beauharnais v. Illinois, 343 U.S. 250, 272, 72 S.Ct. 725, 738, 96 L.Ed. 919 (1952) (Black, J., dissenting). Brant, who interprets the Framers' intention more liberally than Chafee, nevertheless saw the free speech protection as bearing upon criticism of government and other political speech. I. Brant, The Bill of Rights 236 (1965).
17
Z. Chafee, Free Speech in the United States 14 (1954).
18
See 1 Annals of Cong. 729—789 (1789). See also Brant, supra, m. 16, at 224; Levy, supra, n. 13, at 214, 224.
19
Merin, supra, n. 11, at 377. Franklin, for example, observed:
'If by the Liberty of the Press were understood merely the Liberty of discussing the Propriety of Public Measures and political opinions, let us have as much of it as you please: But if it means the Liberty of affronting, calumniating, and defaming one another, I, for my part, own myself willing to part with my Share of it when our Legislators shall please so to alter the Law, and shall cheerfully consent to exchange my Liberty of Abusing others for the Privilege of not being abus'd myself.' 10 B. Franklin, Writings 38 (Smyth ed. 1907).
20
Jefferson's noted opposition to public prosecutions for libel of government figures did not extend to depriving them of private libel actions. Moot, supra, at 43. There is even a strong suggestion that he favored state prosecutions. E. Hudon, Freedom of Speech and Press in America 47—48 (1963).
21
For further expressions of the general proposition that libels are not protected by the First Amendment, see Konigsberg v. State Bar of California, 366 U.S. 36, 49—50 and n. 10, 81 S.Ct. 997, 1005—1007, 6 L.Ed.2d 105 (1961); Times Film Corp. v. City of Chicago, 365 U.S. 43, 48, 81 S.Ct. 391, 394, 5 L.Ed.2d 403 (1961); Pennekamp v. Florida, 328 U.S. 331, 348—349, 66 S.Ct. 1029, 1038 1039, 90 L.Ed. 1295 (1946); cf. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 67, 93 S.Ct. 2628, 2640, 37 L.Ed.2d 446 (1973); Stanley v. Georgia, 394 U.S. 557, 561 n. 5, 89 S.Ct. 1243, 1245, 22 L.Ed.2d 542 (1969).
22
See Levy, supra, n. 13, at 247—248.
23
See, e.g., Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 22, 63 L.Ed. 1173 (1919) (Holmes, J., dissenting).
24
Kalven, The New York Times Case: A Note on 'The Central Meaning of the First Amendment,' 1964 Sup.Ct.Rev. 191, 208—209.
25
'The language of the First Amendment is to be read not as barren words found in a dictionary but as symbols of historic experience illumined by the presuppositions of those who employed them. . . . As in the case of every other provision of the Constitution that is not crystallized by the nature of its technical concepts, the fact that the First Amendment is not self-defining and self-enforcing neither impairs its usefulness nor compels its paralysis as a living instrument.' Dennis v. United States, 341 U.S. 494, 523, 71 S.Ct. 857, 873, 95 L.Ed. 1137 (1951) (Frankfurter, J., concurring).
26
'(T)he law of defamation has been an integral part of the laws of England, the colonies and the states since time immemorial. So many actions have been maintained and judgments recovered under the various laws of libel that the Constitutional validity of libel actions could be denied only by a Court willing to hold all of its predecessors were wrong in their interpretation of the First Amendment and that two hundred years of precedents should be overruled.' Rutledge, The Law of Defamation: Recent Developments, 32 Alabama Lawyer 409, 410 (1971).
The prevailing common-law libel rules in this country have remained in England and the commonwealth nations. Pedrick, Freedom of the Press and the Law of Libel: The Modern Revised Translation, 49 Cornell L.Q. 581, 583—584 (1964). After many years of reviewing the English law of defamation, the Porter Committee concluded that 'though the law as to defamation requires some modification, the basic principles upon which it is founded are not amiss.' Report of the Committee on the Law of Defamation, Cmd. No. 7536, 222, p. 48 (1948).
27
If I read the Court correctly, it clearly implies that for those publications that do not make 'substantial danger to reputation apparent,' the New York Times actual-malice standard will apply. Apparently, this would be true even where the imputation concerned conduct or a condition that would be per se slander.
28
A recent study has comprehensively detailed the role and impact of mass communications in this Nation. See Note, Media and the First Amendment in a Free Society, 60 Geo.L.J. 867 (1972). For example, 99% of the American households have a radio, and 77%
hear at least one radio newscast daily. In 1970, the yearly average home television viewing time was almost six hours per day. Id., at 883 n. 53.
'Sixty years ago, 2,442 newspapers were published daily nationwide, and 689 cites had competing dailies. Today, in only 42 of the cities served by one of the 1,748 American daily papers is there a competing newspaper under separate ownership. Total daily circulation has passed 62 million copies, but over 40 percent of this circulation is controlled by only 25 ownership groups.
'Newspaper owners have profited greatly from the consolidation of the journalism industry. Several of them report yearly profits in the tens of millions of dollars, with after tax profits ranging from seven to 14 percent of gross revenues. Unfortunately, the owners have made their profits at the expense of the public interest in free expression. As the broad base of newspaper ownership narrows, the variation of facts and opinions received by the public from antagonistic sources is increasingly limited. Newspaper publication is indeed a leading American industry. Through its evolution in this direction, the press has come to be dominated by a select group whose prime interest is economic.
'The effect of consolidation within the newspaper industry is magnified by the degree of intermedia ownership. Sixty-eight cities have a radio station owned by the only local daily newspaper, and 160 television stations have newspaper affiliations. In 11 cities diversity of ownership is completely lacking with the only television station and newspaper under the same control.' Id., at 892—893 (footnotes omitted).
See also Congress, FCC Consider Newspaper Control of Local TV, 32 Cong.Q. 659—663 (1974).
29
Having held that the defamation plaintiff is limited to recovering for 'actual injury,' the Court hastens to add:
'Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering.' Ante, at 350.
It should be pointed out that under the prevailing law, where the defamation is not actionable per se and proof of 'special damage' is required, a showing of actual injury to reputation is insufficient; but if pecuniary loss is shown, general reputation damages are recoverable. The Court changes the latter, but not the former, rule. Also under present law, pain and suffering, although shown, do not warrant damages in any defamation action unless the plaintiff is otherwise entitled to at least nominal damages. By imposing a more difficult standard of liability and requiring proof of actual damage to reputation, recovery for pain and suffering, though real, becomes a much more remote possibility.
30
'The harm resulting from an injury to reputation is difficult to demonstrate both because it may involve subtle differences in the conduct of the recipients toward the plaintiff and because the recipients, the only witnesses able to establish the necessary causal connection, may be reluctant to testify that the publication affected their relationships with the plaintiff. Thus some presumptions are necessary if the plaintiff is to be adequately compensated.' Note, Developments in the Law—Defamation, 69 Harv.L.Rev. 875, 891—892 (1956).
31
'On questions of damages, the judge plays an important role. It is, of course, for him to determine and instruct the jury as to what matters may be taken into consideration by them in arriving at a verdict since such questions are clearly matters of substantive law. But the judge also may and frequently does exercise a judgment as to the amount of damages the plaintiff may recover. His function here is primarily to keep the jury within bounds of reason and common sense, to guard against excessive verdicts dictated by passion and prejudice and to see to it that the amount of the verdict has some reasonable relation to the plaintiff's evidence as to his loss or the probability of loss. Thus, the trial judge may grant a new trial or the appellate court may reverse and remand the case for a new trial because of excessive damages or, as is more frequently the case, a remittitur may be ordered, the effect of which is that the plaintiff must accept a specified reduction of his damages or submit to a new trial on the issue of liability as well as damages.' 1 F. Harper & F. James, The Law of Torts § 5.29, p. 467 (1956) (footnote omitted).
32
See Pedrick, supra, n. 26, at 587 n. 23.
33
Murnaghan, supra, n. 3, at 29.
34
Note, Developments in the Law—Defamation, 69 Harv.L.Rev., supra, at 875, 938 and n. 443.
35
Id., at 939, 941—942. See, e.g., Cal.Civ.Code § 48a(2) (1954).
36
376 U.S., at 285, 84 S.Ct., at 1708.
37
Id., at 270, 84 S.Ct. 710.
38
Judicial review of jury libel awards for excessiveness should be influenced by First Amendment considerations, but it makes little sense to discard an otherwise useful and time-tested rule because it might be misapplied in a few cases.
39
O. Holmes, The Common Law 36 (1881).
40
Ante, at 351, 352.
41
Cf. Pedrick, supra, n. 26, at 601—602:
'A great many forces in our society operate to determine the extent to which men are free in fact to express their ideas. Whether there is a privilege for good faith defamatory misstatements on matters of public concern or whether there is strict liability for such statements may not greatly affect the course of public discussion. How different has life been in those states which heretofore followed the majority rule imposing strict liability for misstatements of fact defaming public figures from life in the minority states where the good faith privilege held sway?'
See also T. Emerson, The System (of Freedom of Expression 519 (1970) (footnote omitted): '(O)n the whole the role of libel law in the system of freedom of expression has been relatively minor and essentially erratic.'
42
'The man who is compelled to live every minute of his life among others and whose every need, thought, desire, fancy or gratification is subject to public scrutiny, has been deprived of his individuality and human dignity. Such an individual merges with the mass. His opinions, being public, tend never to be different; his aspirations, being known, tend always to be conventionally accepted ones; his feelings, being openly exhibited, tend to lose their quality of unique personal warmth and to become the feelings of every man. Such a being, although sentient, is fungible; he is not an individual.' Bloustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser, 39 N.Y.U.L.Rev. 962, 1003 (1964).
43
With the evisceration of the common-law libel remedy for the private citizen, the Court removes from his legal arsenal the most effective weapon to combat assault on personal reputation by the press establishment. The David and Goliath nature of this relationship is all the more accentuated by the Court's holding today in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730, which I have joined, that an individual criticized by a newspaper's editorial is precluded by the First Amendment from requiring that newspaper to print his reply to that attack. While that case involves an announced candiate for public office, the Court's finding of a First Amendment barrier to government 'intrusion into the function of editors,' supra, at 258, 94 S.Ct., at 2839, does not rest on any distinction between private citizens or public officials. In fact, the Court observes that the First Amendment clearly protects from governmental restraint 'the exercise of editorial control and judgment,' i.e., '(t)he choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials whether fair or unfair . . ..' Ibid. (Emphasis added.)
We must, therefore, assume that the hapless ordinary citizen libeled by the press (a) may not enjoin in advance of publication a story about him, regardless of how libelous it may be, Near v. Minnesota ex rel. Olson, 283 U.S. 697, 151 S.Ct. 625, 75 L.Ed. 1357 (1931); (b) may not compel the newspaper to print his reply; and (c) may not force the newspaper to print a retraction, because a judicially compelled retraction, like a 'remedy such as an enforceable right of access,' entails 'governmental coercion' as to content, which 'at once brings about a confrontation with the express provisions of the First Amendment and the judicial gloss on that Amendment developed over the years.' Miami Herald Publishing Co. v. Tornillo, 418 U.S., at 254, 94 S.Ct., at 2838; but cf. this case, ante, at 368 n. 3 (Brennan, J., dissenting).
My Brother BRENNAN also suggests that there may constitutionally be room for 'the possible enactment of statutes, not requiring proof of fault, which provide . . . for publication of a court's determination of falsity if the plaintiff is able to demonstrate that false statements have been published concerning his activities.' Ibid. The Court, however, does not even consider this less drastic alternative to its new 'some fault' libel standards.
44
See n. 28, supra.
45
'No democracy, . . . certainly not the American democracy, will indefinitely tolerate concentrations of private power irresponsible and strong enough to thwart the aspirations of the prople. Eventually governmental power will be used to break up private power, or governmental power will be used to regulate private power—if private power is at once great and irresponsible.' Commission on Freedom of the Press, A Free and Responsible Press 80 (1947).
| 23
|
418 U.S. 241
94 S.Ct. 2831
41 L.Ed.2d 730
The MIAMI HERALD PUBLISHING COMPANY, a Division of Knight Newspapers, Inc., Appellant,v.Pat L. TORNILLO, Jr.
No. 73—797.
Argued April 17, 1974.
Decided June 25, 1974.
Syllabus
After appellant newspaper had refused to print appellee's replies to editorials critical of appellee's candidacy for state office, appellee brought suit in Florida Circuit Court seeking injunctive and declaratory relief and damages, based on Florida's 'right of reply' statute that grants a political candidate a right to equal space to answer criticism and attacks on his record by a newspaper, and making it a misdemeanor for the newspaper to fail to comply. The Circuit Court held the statute unconstitutional as infringing on the freedom of the press and dismissed the action. The Florida Supreme Court reversed, holding that the statute did not violate constitutional guarantees, and that civil remedies, including damages, were available, and remanded to the trial court for further proceedings. Held:
1. The Florida Supreme Court's judgment is 'final' under 28 U.S.C. § 1257, and thus is ripe for review by this Court. North Dakota Pharmacy Bd. v. Snyder's Stores, 414 U.S. 156, 94 S.Ct. 407, 38 L.Ed.2d 379. Pp. 247—248.
2. The statute violates the First Amendment's guarantee of a free press. Pp. 247—258.
(a) Governmental compulsion on a newspapr to publish that which 'reason' tells it should not be published is unconstitutional. P. 256.
(b) The statute operates as a command by a State in the same sense as a statute or regulation forbidding appellant to publish specified matter. P. 256.
(c) The statute exacts a penalty on the basis of the content of a newspaper by imposing additional printing, composing, and materials costs and by taking up space that could be devoted to other material the newspaper may have preferred to print. P. 256 257.
(d) Even if a newspaper would face no additional costs to comply with the statute and would not be forced to forgo publication of news or opinion by the inclusion of a reply, the statute still fails to clear the First Amendment's barriers because of its intrusion into the function of editors in choosing what material goes into a newspaper and in deciding on the size and content of the paper and the treatment of public issues and officials. P. 258.
287 So.2d 78, Fla., reversed.
Dan P. S. Paul, Miami, Fla., for appellant.
Jerome A. Barron, Washington, D.C., for appellee.
[Amicus Curiae Information from page 242 intentionally omitted]
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
The issue in this case is whether a state statute granting a political candidate a right to equal space to reply to criticism and attacks on his record by a newspaper violates the guarantees of a free press.
2
* In the fall of 1972, appellee, Executive Director of the Classroom Teachers Association, apparently a teachers' collective-bargaining agent, was a candidate for the Florida House of Representatives. On September 20, 1972, and again on September 29, 1972, appellant printed editorials critical of appellee's candidacy.1 In response to these editorials appellee demanded that appellant print verbatim his replies, defending the role of the Classroom Teachers Association and the organization's accomplishments for the citizens of Dade County. Appellant declined to print the appellee's replies and appellee brought suit in Circuit Court, Dade County, seeking declaratory and injunctive relief and actual and punitive damages in excess of $5,000. The action was premised on Florida Statute § 104.38 (1973), F.S.A., a 'right of reply' statute which provides that if a candidate for nomination or election is assailed regarding his personal character or official record by any newspaper, the candidate has the right to demand that the newspaper print, free of cost to the candidate, any reply the candidate may make to the newspaper's charges. The reply must appear in as conspicuous a place and in the same kind of type as the charges which prompted the reply, provided it does not take up more space than the charges. Failure to comply with the statute constitutes a first-degree misdemeanor.2
3
Appellant sought a declaration that § 104.38 was unconstitutional. After an emergency hearing requested by appellee, the Circuit Court denied injunctive relief because, absent special circumstances, no injunction could properly issue against the commission of a crime, and held that § 104.38 was unconstitutional as an infringement on the freedom of the press under the First and Fourteenth Amendmens to the Constitution. 38 Fla.Supp. 80 (1972). The Circuit Court concluded that dictating what a newspaper must print was no different from dictating what it must not print. The Circuit Judge viewed the statute's vagueness as serving 'to restrict and stifle protected expression.' Id., at 83. Appellee's cause was dismissed with prejudice.
4
On direct appeal, the Florida Supreme Court reversed, holding that § 104.38 did not violate constitutional guarantees. 287 So.2d 78 (1973).3 It held that free speech was enhanced and not abridged by the Florida right-of-reply statute, which in that court's view, furthered the 'broad societal interest in the free flow of information to the public.' Id., at 82. It also held that the statute is not impermissibly vague; the statute informs 'those who are subject to it as to what conduct on their part will render them liable to its penalties.' Id., at 85.4 Civil remedies, including damages, were held to be available under this statute; the case was remanded to the trial court for further proceedings not inconsistent with the Florida Supreme Court's opinion.
5
We postponed consideration of the question of jurisdiction to the hearing of the case on the merits. 414 U.S. 1142, 94 S.Ct. 893, 39 L.Ed.2d 99 (1974).
II
6
Although both parties contend that this Court has jurisdiction to review the judgment of the Florida Supreme Court, a suggestion was initially made that the judgment of the Florida Supreme Court might not be 'final' under 28 U.S.C. § 1257.5 In North Dakota State Board of Pharmacy v. Snyder's Drug Stores, Inc., 414 U.S. 156, 94 S.Ct. 407, 38 L.Ed.2d 379 (1973), we reviewed a judgment of the North Dakota Supreme Court, under which the case had been remanded so that further state proceedings could be conducted respecting Snyder's application for a permit to operate a drug store. We held that to be a final judgment for purposes of our jurisdiction. Under the principles of finality enunciated in Snyder's Stores, the judgment of the Florida Supreme Court in this case is ripe for review by this Court.6
III
A.
7
The challenged statute creates a right to reply to press criticism of a candidate for nomination or election. The statute was enacted in 1913, and this is only the second recorded case decided under its provisions.7
8
Appellant contends the statute is void on its face because it purports to regulate the content of a newspaper in violation of the First Amendment. Alternatively it is urged that the statute is void for vagueness since no editor could know exactly what words would call the statute into operation. It is also contended that the statute fails to distinguish between critical comment which is and which is not defamatory.
B
9
The appellee and supporting advocates of an enforceable right of access to the press vigorously argue that government has an obligation to ensure that a wide variety of views reach the public.8 The contentions of access proponents will be set out in some detail.9 It is urged that at the time the First Amendment to the Constitution10 was ratified in 1791 as part of our Bill of Rights the press was broadly representative of the people it was serving. While many of the newspapers were intensely partisan and narrow in their views, the press collectively presented a broad range of opinions to readers. Entry into publishing was inexpensive; pamphlets and books provided meaningful alternatives to the organized press for the expression of unpopular ideas and often treated events and expressed views not covered by conventional newspapers.11 A true marketplace of ideas existed in which there was relatively easy access to the channels of communication.
10
Access advocates submit that although newspapers of the present are superficially similar to those of 1791 the press of today is in reality very different from that known in the early years of our national existence. In the past half century a communications revolution has seen the introduction of radio and television into our lives, the promise of a global community through the use of communications satellites, and the spectre of a 'wired' nation by means of an expanding cable television network with two-way capabilities. The printed press, it is said, has not escaped the effects of this revolution. Newspapers have become big business and there are far fewer of them to serve a larger literate population.12 Chains of newspapers, national newspapers, national wire and news services, and one-newspaper towns,13 are the dominant features of a press that has become noncompetitive and enormously powerful and influential in its capacity to manipulate popular opinion and change the course of events. Major metropolitan newspapers have collaborated to establish news services national in scope.14 Such national news organizations provide syndicated 'interpretive reporting' as well as syndicated features and commentary, all of which can serve as part of the new school of 'advocacy journalism.'
11
The elimination of competing newspapers in most of our large cities, and the concentration of control of media that results from the only newspaper's being owned by the same interests which own a television station and a radio station, are important components of this trend toward concentration of control of outlets to inform the public.
12
The result of these vast changes has been to place in a few hands the power to inform the American people and shape public opinion.15 Much of the editorial opinion and commentary that is printed is that of syndicated columnists distributed nationwide and, as a result, we are told, on national and world issues there tends to be a homogeneity of editorial opinion, commentary, and interpretive analysis. The abuses of bias and manipulative reportage are, likewise, said to be the result of the vast accumulations of unreviewable power in the modern media empires. In effect, it is claimed, the public has lost any ability to respond or to contribute in a meaningful way to the debate on issues. The monopoly of the means of communication allows for little or no critical analysis of the media except in professional journals of very limited readership.
13
'This concentration of nationwide news organizations—like other large institutions—has grown increasingly remote from and unresponsive to the popular constituencies on which they depend and which depend on them.' Report of the Task Force in Twentieth Century Fund Task Force Report for a National News Council, A Free and Responsive Press 4 (1973).
14
Appellee cites the report of the Commission on Freedom of the Press, chaired by Robert M. Hutchins, in which it was stated, as long ago as 1947, that '(t)he right of free public expression has . . . lost its earlier reality.' Commission on Freedom of the Press, A Free and Responsible Press 15 (1947).
15
The obvious solution, which was available to dissidents at an earlier time when entry into publishing was relatively inexpensive, today would be to have additional newspapers. But the same economic factors which have caused the disappearance of vast numbers of metropolitan newspapers,16 have made entry into the marketplace of ideas served by the print media almost impossible. It is urged that the claim of newspapers to be 'surrogates for the public' carries with it a concomitant fiduciary obligation to account for that stewardship.17 From this premise it is reasoned that the only effective way to insure fairness and accuracy and to provide for some accountability is for government to take affirmative action. The First Amendment interest of the public in being informed is said to be in peril because the 'marketplace of ideas' is today a monopoly controlled by the owners of the market.
16
Proponents of enforced access to the press take comfort from language in several of this Court's decisions which suggests that the First Amendment acts as a sword as well as a shield, that it imposes obligations on the owners of the press in addition to protecting the press from government regulation. In Associated Press v. United States, 326 U.S. 1, 20, 65 S.Ct. 1416, 1424, 89 L.Ed. 2013 (1945), the Court, in rejecting the argument that the press is immune from the antitrust laws by virtue of the First Amendment, stated:
17
'The First Amendment, far from providing an argument against application of the Sherman Act, here provides powerful reasons to the contrary. That 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, that a free press is a condition of a free society. Surely a command that the government itself shall not impede the free flow of ideas does not afford non-governmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom. Freedom to publish means freedom for all and not for some. Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not. Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests.' (Footnote omitted.)
18
In New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964), the Court spoke of 'a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.' It is argued that the 'uninhibited, robust' debate is not 'wide-open' but open only to a monopoly in control of the press. Appellee cites the plurality opinion in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 47, and n. 15, 91 S.Ct. 1811, 1821, 29 L.Ed.2d 296 (1971), which he suggests seemed to invite experimentation by the State in right-to-access regulation of the press.18
19
Access advocates note that Mr. Justice Douglas a decade ago expressed his deep concern regarding the effects of newspaper monopolies:
20
'Where one paper has a monopoly in an area, it seldom presents two sides of an issue. It too often hammers away on one ideological or political line using its monopoly position not to educate people, not to promote debate, but to inculcate in its readers one philosophy, one attitude—and to make money'.
21
'The newspapers that give a variety of views and news that is not slanted or contrived are few indeed. And the problem promises to get worse . . ..' The Great Rights 124—125, 127 (E. Cahn ed. 1963).
22
They also claim the qualified support of Professor Thomas I. Emerson, who has written that '(a) limited right of access to the press can be safely enforced,' although he believes that '(g)overnment measures to encourage a multiplicity of outlets, rather than compelling a few outlets to represent everybody, seems a preferable course of action.' T. Emerson, The System of Freedom of Expression 671 (1970).
IV
23
However much validity may be found in these arguments, at each point the implementation of a remedy such as an enforceable right of access necessarily calls for some mechanism, either governmental or consensual.19 If it is governmental coercion, this at once brings about a confrontation with the express provisions of the First Amendment and the judicial gloss on that Amendment developed over the years.20
24
The Court foresaw the problems relating to government-enforced access as early as its decision in Associated Press v. United States, supra. There it carefully contrasted the private 'compulsion to print' called for by the Association's bylaws with the provisions of the District Court decree against appellants which 'does not compel AP or its members to permit publication of anything which their 'reason' tells them should not be published.' 326 U.S., at 20 n. 18, 65 S.Ct., at 1425. In Branzburg v. Hayes, 408 U.S. 665, 681, 92 S.Ct. 2646, 2656, 33 L.Ed.2d 626 (1972), we emphasized that the cases then before us 'involve no intrusions upon speech or assembly, no prior restraint or restriction on what the press may publish, and no express or implied command that the press publish what it prefers to withhold.' In Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 117, 93 S.Ct. 2080, 2094, 36 L.Ed.2d 772 (1973), the plurality opinion as to Part III noted:
25
'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.'
26
An attitude strongly adverse to any attempt to extend a right of access to newspapers was echoed by other Members of this Court in their separate opinions in that case. Id., at 145, 93 S.Ct., at 2107 (Stewart, J., concurring); id., at 182 n. 12, 93 S.Ct., at 2126 (Brennan, J., joined by Marshall, J., dissenting). Recently, while approving a bar against employment advertising specifying 'male' or 'female' preference, the Court's opinion in Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376, 391, 93 S.Ct. 2553, 2561, 37 L.Ed.2d 669 (1973), took pains to limit its holding within narrow bounds:
27
'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.'
28
Dissenting in Pittsburgh Press, Mr. Justice Stewart, joined by Mr. Justice Douglas, expressed the view that no 'government agency—local, state, or federal—can tell a newspaper in advance what it can print and what it cannot.' Id., at 400, 93 S.Ct., at 2566. See Associates & Aldrich Co. v. Times Mirror Co., 440 F.2d 133, 135 (CA9 1971).
29
We see the beginning with Associated Press, supra, the Court has expressed sensitivity as to whether a restriction or requirement constituted the compulsion exerted by government on a newspaper to print that which it would not otherwise print. The clear implication has been that any such compulsion to publish that which "reason' tells them should not be published' is unconstitutional. A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution and like many other virtues it cannot be legislated.
30
Appellee's argument that the Florida statute does not amount to a restriction of appellant's right to speak because 'the statute in question here has not prevented the Miami Herald from saying anything it wished'21 begs the core question. Compelling editors or publishers to publish that which "reason' tells them should not be published' is what is at issue in this case. The Florida statute operates as a command in the same sense as a statue or regulation forbidding appellant to publish specified matter. Governmental restraint on publishing need not fall into familiar or traditional patterns to be subject to constitutional limitations on governmental powers. Grosjean v. American Press Co., 297 U.S. 233, 244—245, 56 S.Ct. 444, 446, 80 L.Ed. 660 (1936). The Florida statute exacts a penalty on the basif of the content of a newspaper. The first phase of the penalty resulting from the compelled printing of a reply is exacted in terms of the cost in printing and composing time and materials and in taking up space that could be devoted to other material the newspaper may have preferred to print. It is correct, as appellee contends, that a newspaper is not subject to the finite technological limitations of time that confront a broadcaster but it is not correct to say that, as an economic reality, a newspaper can proceed to infinite expansion of its column space to accommodate the replies that a government agency determines or a statute commands the readers should have available.22
31
Faced with the penalties that would accrue to any newspaper that published news or commentary arguably within the reach of the right-of-access statute, editors might well conclude that the safe course is to avoid controversy. Therefore, under the operation of the Florida statute, political and electrol coverage would be blunted or reduced.23 Government-enforced right of access inescapably 'dampens the vigor and limits the variety of public debate,' New York Times Co. v. Sullivan, supra, 376 U.S., at 279, 84 S.Ct., at 725. The Court, in Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1437 (1966), stated:
32
'[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates . . ..' Even if a newspaper would face no additional costs to comply with a compulsory access law and would not be forced to forgo publication of news or opinion by the inclusion of a reply, the Florida statute fails to clear the barriers of the First Amendment because of its intrusion into the function of editors. A newspaper is more than a passive receptacle or conduit for news, comment, and advertising.24 The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials whether fair or unfair—constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time. Accordingly, the judgment of the Supreme Court of Florida is reversed.
33
It is so ordered.
34
Reversed.
35
Mr. Justice BRENNAN, with whom Mr. Justice REHNQUIST joins, concurring.
36
I join the Court's opinion which, as I understand it, addresses only 'right of reply' statutes and implies no view upon the constitutionality of 'retraction' statutes affording plaintiffs able to prove defamatory falsehoods a statutory action to require publication of a retraction. See generally Note, Vindication of the Reputation of a Public Official, 80 Harv.L.Rev. 1730, 1739—1747 (1967).
37
Mr. Justice WHITE, concurring.
38
The Court today holds that the First Amendment bars a State from requiring a newspaper to print the reply of a candidate for public office whose personal character has been criticized by that newspaper's editorials. According to our accepted jurisprudence, the First Amendment erects a virtually insurmountable barrier between government and the print media so far as government tampering, in advance of publication, with news and editorial content is concerned. New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971). A newspaper or magazine is not a public utility subject to 'reasonable' governmental regulation in matters affecting the exercise of journalistic judgment as to what shall be printed. Cf. Mills v. Alabama, 384 U.S. 214, 220, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966). We have learned, and continue to learn, from what we view as the unhappy experiences of other nations where government has been allowed to meddle in the internal editorial affairs of newspapers. Regardless of how beneficent-sounding the purposes of controlling the press might be, we prefer 'the power of reason as applied through public discussion'1 and remain intensely skeptical about those measures that would allow government to insinuate itself into the editorial rooms of this Nation's press.
39
'Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes. The Constitution specifically selected the press . . . to play an important role in the discussion of public affairs. Thus the 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 . . . muzzles one of the very agencies the Framers of our Constitution thoughtfully and deliberately selected to improve our society and keep it free.' Mills v. Alabama, supra, at 218—219, 86 S.Ct., at 1437.
40
Of course, the press is not always accurate, or even responsible, and may not present full and fair debate on important public issues. But the balance struck by the First Amendment with respect to the press is that society must take the risk that occasionally debate on vital matters will not be comprehensive and that all viewpoints may not be expressed. The press would be unlicensed because, in Jefferson's words, '(w)here the press is free, and every man able to read, all is safe.'2 Any other accommodation—any other system that would supplant private control of the press with the heavy hand of government intrusion—would make the government the censor of what the people may read and know.
41
To justify this statute, Florida advances a concededly important interest of ensuring free and fair elections by means of an electorate informed about the issues. But prior compulsion by government in matters going to the very nerve center of a newspaper—the decision as to what copy will or will not be included in any given edition—collides with the First Amendment. Woven into the fabric of the First Amendment is the unexceptionable, but nonetheless timeless, sentiment that 'liberty of the press is in peril as soon as the government tries to compel what is to go into a newspaper.' 2 Z. Chafee, Government and Mass Communications 633 (1947).
42
The constitutionally obnoxious feature of § 104.38 is not that the Florida Legislature may also have placed a high premium on the protection of individual reputational interests; for government certainly has 'a pervasive and strong interest in preventing and redressing attacks upon reputation.' Rosenblatt v. Baer, 383 U.S. 75, 86, 86 S.Ct. 669, 676, 15 L.Ed.2d 597 (1966). Quite the contrary, this law runs afoul of the elementary First Amendment proposition that government may not force a newspaper to print copy which, in its journalistic discretion, it chooses to leave on the newsroom floor. Whatever power may reside in government to influence the publishing of certain narrowly circumscribed categories of material, see, e.g., Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973); New York Times Co. v. United States, 403 U.S., at 730, 91 S.Ct., at 2149 (White, J., concurring), we have never thought that the First Amendment permitted public officials to dictate to the press the contents of its news columns or the slant of its editorials.
43
But though a newspaper may publish without government censorship, it has never been entirely free from liability for what it chooses to print. See ibid. Among other things, the press has not been wholly at liberty to publish falsehoods damaging to individual reputation. At least until today, we have cherished the average citizen's reputation interest enough to afford him a fair chance to vindicate himself in an action for libel characteristically provided by state law. He has been unable to force the press to tell his side of the story or to print a retraction, but he has had at least the opportunity to win a judgment if he has been able to prove the falsity of the damaging publication, as well as a fair chance to recover reasonable damages for his injury.
44
Reaffirming the rule that the press cannot be forced to print an answer to a personal attack made by it, however, throws into stark relief the consequences of the new balance forged by the Court in the companion case also announced today. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 goes far toward eviscerating the effectiveness of the ordinary libel action, which has long been the only potent response available to the private citizen libeled by the press. Under Gertz, the burden of proving liability is immeasurably increased, proving damages is made exceedingly more difficult, and vindicating reputation by merely proving falsehood and winning a judgment to that effect are wholly foreclosed. Needlessly, in my view, the Court trivializes and denigrates the interest in reputation by removing virtually all the protection the law has always afforded.
45
Of course, these two decisions do not mean that because government may not dictate what the press is to print, neither can it afford a remedy for libel in any form. Gertz itself leaves a putative remedy for libel intact, albeit in severely emaciated form; and the press certainly remains liable for knowing or reckless falsehoods under New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and its progeny, however improper an injunction against publication might be.
46
One need not think less of the First Amendment to sustain reasonable methods for allowing the average citizen to redeem a falsely tarnished reputation. Nor does one have to doubt the genuine decency, integrity, and good sense of the vast majority of professional journalists to support the right of any individual to have his day in court when he has been falsely maligned in the public press. The press is the servant, not the master, of the citizenry, and its freedom does not carry with it an unrestricted hunting license to prey on the ordinary citizen.
47
'In plain English, freedom carries with it responsibility even for the press; freedom of the press is not a freedom from responsibility for its exercise.'
48
'Without . . . a lively sense of responsibility a free press may readily become a powerful instrument of injustice.' Pennekamp v. Florida, 328 U.S. 331, 356, 365, 66 S.Ct. 1029, 1042, 90 L.Ed. 1295 (1946) (Frankfurter, J., concurring) (footnote omitted).
49
To me it is a near absurdity to so deprecate individual dignity, as the Court does in Gertz, and to leave the people at the complete mercy of the press, at least in this stage of our history when the press, as the majority in this case so well documents, is steadily becoming more powerful and much less likely to be deterred by threats of libel suits.
1
The text of the September 20, 1972, editorial is as follows:
'The State's Laws And Pat Tornillo
'LOOK who's upholding the law!
'Pat Tornillo, boss of the Classroom Teachers Association and candidate for the State Legislature in the Oct. 3 runoff election, has denounced his opponent as lacking 'the knowledge to be a legislator, as evidenced by his failure to file a list of contributions to and expenditures of his campaign as required by law.'
'Czar Tornillo calls 'violation of this law inexcusable.'
'This is the same Pat Tornillo who led the CTA strike from February 19 to March 11, 1968, against the school children and taxpayers of Dade County. Call it whatever you will, it was an illegal act against the public interet and clearly prohibited by the statutes.
'We cannot say it would be illegal but certainly it would be inexcusable of the voters if they sent Pat Tornillo to Tallahassee to occupy the seat for District 103 in the House of Representatives.'
The text of the September 29, 1972, editorial is as follows:
'FROM the people who brought you this—the teacher strike of '68—come now instructions on how to vote for responsible government, i.e., against Crutcher Harrison and Ethel Beckham, for Pat Tornillo. The tracts and blurbs and bumper stickers pile up daily in teachers' school mailboxes amidst continuing pouts that the School Board should be delivering all this at your expense. The screeds say the strike is not an issue. We say maybe it wouldn't be were it not a part of a continuation of disregard of any and all laws the CTA might find aggravating. Whether in defiance of zoning laws at CTA Towers, contracts and laws during the strike, or more recently state prohibitions against soliciting campaign funds amongst teachers, CTA says fie and try and sue us what's good for CTA is good for CTA and that is natural law. Tornillo's law, maybe. For years now he has been kicking the public shin to call attention to his shakedown statesmanship. He and whichever acerbic prexy is in alleged office have always felt their private ventures so chock-full of public weal that we should leap at the chance to nab the tab, be it half the Glorious Leader's salary or the dues checkoff or anything else except perhaps mileage on the staff hydrofoil. Give him public office, says Pat, and he will no doubt live by the Golden Rule. Our translation reads that as more gold and more rule.'
2
'104.38 Newspaper assailing candidate in an election; space for reply
If any newspaper in its columns assails the personal character of any candidate for nomination or for election in any election, or charges said candidate with malfeasance or misfeasance in office, or otherwise attacks his official record, or gives to another free space for such purpose, such newspaper shall upon request of such candidate immediately publish free of cost any reply he may make thereto in as conspicuous a place and in the same kind of type as the matter that calls for such reply, provided such reply does not take up more space than the matter replied to. Any person or firm failing to comply with the provisions of this section shall be guilty of a misdemeanor of the first degree, punishable as provided in § 775.082 or § 775.083.'
3
The Supreme Court did not disturb the Circuit Cour's holding that injunctive relief was not proper in this case even if the statute were constitutional. According to the Supreme Court neither side took issue with that part of the Circuit Court's decision. 287 So.2d, at 85.
4
The Supreme Court placed the following limiting construction on the statute:
'(W)e hold that the mandate of the statute refers to 'any reply' which is wholly responsive to the charge made in the editorial or other article in a newspaper being replied to and further that such reply will be neither libelous nor slanderous of the publication nor anyone else, nor vulgar nor profane.' Id., at 86.
5
Appellee's Response to Appellant's Jurisdictional Statement and Motion to Affirm the Judgment Below or, in the Alternative, to Dismiss the Appeal 4—7.
6
Both appellant and appellee claim that the uncertainty of the constitutional validity of § 104.38 restricts the present exercise of First Amendment rights. Brief for Appellant 41; Brief for Appellee 79. Appellant finds urgency for the present consideration of the constitutionality of the statute in the uncoming 1974 elections. Whichever way we were to decide on the merits, it would be intolerable to leave unanswered, under these circumstances, an important question of freedom of the press under the First Amendment; an uneasy and unsettled constitutional posture of § 104.38 could only further harm the operation of a free press. Mills v. Alabama, 384 U.S. 214, 221—222, 86 S.Ct. 1434, 1438, 16 L.Ed.2d 484 (1966) (Douglas, J., concurring). See also Organization for a Better Austin v. Keefe, 402 U.S. 415, 418 n., 91 S.Ct. 1575, 1577, 29 L.Ed.2d 1 (1971).
7
In its first court test the statute was declared unconstitutional. State v. News-Journal Corp., 36 Fla.Supp. 164 (Volusia County Judge's Court, 1972). In neither of the two suits, the instant action and the News-Journal action, has the Florida Attorney General defended the statute's constitutionality.
8
See generally Barron, Access to the Press—A New First Amendment Right, 80 Harv.L.Rev. 1641 (1967).
9
For a good overview of the position of access advocates see Lange, The Role of the Access Doctrine in the Regulation of the Mass Media: A Critical Review and Assessment, 52 N.C.L.Rev. 1, 8—9 (1973) (hereinafter Lange).
10
'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition to Government for a redress of grievances.'
11
See Commission on Freedom of the Press, A Free and Responsible Press 14 (1947) (hereinafter sometimes Commission).
12
Commission 15. Even in the last 20 years there has been a significant increase in the number of people likely to read newspapers. Bagdikian, Fat Newspapers and Slim Coverage, Columbia Journalism Review, 15, 16 (Sept./Oct. 1973).
13
'Nearly half of U.S. daily newspapers, representing some three-fifths of daily and Sunday circulation, are owned by newspaper groups and chains, including diversified business conglomerates. One-newspaper towns have become the rule, with effective competition operating in only 4 percent of our large cities.' Background Paper by Alfred Bolk in Twentieth Century Fund Task Force Report for a National News Council, A Free and Responsive Press 18 (1973).
14
Report of the Task Force in Twentieth Century Fund Task Force Report for a National News Council, A Free and Responsive Press 4 (1973).
15
'Local monopoly in printed news raises serious questions of diversity of information and opinion. What a local newspaper does not print about local affairs does not see general print at all. And, having the power to take initiative in reporting and enunciation of opinions, it has extraordinary power to set the atmosphere and determine the terms of local consideration of public issues.' B. Bagdikian, The Information Machines 127 (1971).
16
The newspapers have persuaded Congress to grant them immunity from the antitrust laws in the case of 'failing' newspapers for joint operations. 84 Stat. 466, 15 U.S.C. § 1801 et seq.
17
'Freedom of the press is a right belonging, like all rights in a democracy, to all the people. As a practical matter, however, it can be exercised only by those who have effective access to the press. Where financial, economic, and technological conditions limit such access to a small minority, the exercise of that right by that minority takes on fiduciary or quasi-fiduciary characteristics.' A. MacLeish in W. Hocking, Freedom of the Press 99 n. 4 (1947) (italics omitted).
18
'If the States fear that private citizens will not be able to respond adequately to publicity involving them, the solution lies in the direction of ensuring their ability to respond, rather than in stifling public discussion of matters of public concern.[*]
[*] Some states have adopted retraction statutes or right-of-reply statutes . . ..
'One writer, in arguing that the First Amendment itself should be read to guarantee a right of access to the media not limited to a right to respond to defamatory falsehoods, has suggested several ways the law might encourage public discussion. Barron, Access to the Press—A New First Amendment Right, 80 Harv.L.Rev. 1641, 1666—1678 (1967). It is important to recognize that the private individual often desires press exposure either for himself, his ideas, or his causes. Constitutional adjudication must take into account the individual's interest in access to the press as well as the individual's interest in preserving his reputation, even though libel actions by their nature encourage a narrow view of the individual's interest since they focus only on situations where the individual has been harmed by undesired press attention. A constitutional rule that deters the press from covering the ideas or activities of the private individual thus conceives the individual's interest too narrowly.'
19
The National News Council, an independent and voluntary body concerned with press fairness, was created in 1973 to provide a means for neutral examination of claims of press inaccuracy. The Council was created following the publication of the Twentieth Century Fund Task Force Report for a National News Council, A Free and Responsive Press. The background paper attached to the Report dealt in some detail with the British Press Council, seen by the author of the paper as having the most interest to the United States of the European press councils.
20
Because we hold that § 104.38 violates the First Amendment's guarantee of a free press we have no occasion to consider appellant's further argument that the statute is unconstitutionally vague.
21
Brief for Appellee 5.
22
'However, since the amount of space a newspaper can devote to 'live news' is finite,[*] if a newspaper is forced to publish a particular item, it must as a practical matter, omit something else.
'39 The number of column inches available for news is predetermined by a number of financial and physical factors, including circulation, the amount of advertising, and, increasingly, the availability of newsprint. . . .' Note, 48 Tulane L.Rev. 433, 438 (1974) (one footnote omitted).
Another factor operating against the 'solution' of adding more pages to accommodate the access matter is that 'increasingly subscribers complain of bulky, unwieldy papers.' Bagdikian, Fat Newspapers and Slim Coverage, Columbia Journalism Review, 19 (Sept./Oct. 1973).
23
See the description of the likely effect of the Florida statute on publishers, in Lange 70—71.
24
'(L)iberty of the press is in peril as soon as the government tries to compel what is to go into a newspaper. A journal does not merely print observed facts the way a cow is photographed through a plateglass window. As soon as the facts are set in their context, you have interpretation and you have selection, and editorial selection opens the way to editorial suppression. Then how can the state force abstention from discrimination in the news without dictating selection?' 2 Z. Chafee, Government and Mass Communications 633 (1947).
1
Whitney v. California, 274 U.S. 357, 375, 47 S.Ct. 641, 648, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring).
2
Letter to Col. Charles Yancey in 14 The Writings of Thomas Jefferson 384 (Lipscomb ed. 1904).
| 23
|
418 U.S. 298
94 S.Ct. 2714
41 L.Ed.2d 770
Harry J. LEHMAN, Petitioner,v.CITY OF SHAKER HEIGHTS et al.
No. 73—328.
Argued Feb. 26—27, 1974.
Decided June 25, 1974.
Syllabus
Petitioner, a candidate for state office, who was refused available advertising space on vehicles of a city transit system, brought this suit challenging the constitutionality of the municipal policy on which the refusal was based of not permitting political advertising but allowing other types of public transit advertising. The state courts declined to give petitioner relief, the Ohio Supreme Court holding that the city's refusal did not violate a candidate's free speech or equal protection rights. Held: The judgment is affirmed. Pp. 302—308.
34 Ohio St.2d 143, 296 N.E.2d 683, affirmed.
Mr. Justice BLACKMUN, joined by THE CHIEF JUSTICE, Mr. Justice WHITE, and Mr. Justice REHNQUIST, concluded that car card space on a city transit system is not a First Amendment forum and that here the decision to limit transit advertisements to innocuous and less controversial commercial and service-oriented advertising—thus minimizing chances of abuse, appearances of political favoritism, and the risk of imposing upon a captive audience—is within the city's discretion and involves no First or Fourteenth Amendment violation. Pp. 302—304.
Mr. Justice DOUGLAS concluded that petitioner, though free to express his views to a willing audience, has no constitutional right to force his message upon a captive audience, which uses public transit vehicles, not as a place for discussion, but only as a means of transport. Pp. 305—308.
Leonard J. Schwartz, Columbus, Ohio, for petitioner.
Paul R. Donaldson, Cleveland, Ohio, for respondents.
Mr. Justice BLACKMUN announced the judgment of the Court and an opinion, in which THE CHIEF JUSTICE, Mr. Justice WHITE, and Mr. Justice REHNQUIST join.
1
This case presents the question whether a city which operates a public rapid transit system and sells advertising space for car cards on its vehicles is required by the First and Fourteenth Amendments to accept paid political advertising on behalf of a candidate for public office.
2
In 1970, petitioner Harry J. Lehman was a candidate for the office of State Representative to the Ohio General Assembly for District 56. The district includes the city of Shaker Heights. On July 3, 1970, petitioner sought to promote his candidacy by purchasing car card space on the Shaker Heights Rapid Transit System for the months of August, September, and October. The general election was scheduled for November 3. Petitioner's proposed copy contained his picture and read:
3
'HARRY J. LEHMAN IS OLDFASHIONED! ABOUT HONESTY, INTEGRITY AND GOOD GOVERNMENT
4
'State Representative—District 56 ( ) Harry J. Lehman.' App. 39A.
5
Advertising space on the city's transit system is managed by respondent Metromedia, Inc., as exclusive agent under contract with the city. The agreement between the city and Metromedia provides:
6
'15. . . . The CONTRACTOR shall not place political advertising in or upon any of the said CARS or in, upon or about any other additional and further space granted hereunder.'1
7
When petitioner applied for space,2 he was informed by Metromedia that, although space was then available, the management agreement with the city did not permit political advertising.3 The system, however, accepted ads from cigarette companies, banks, savings and loan associations, liquor companies, retail and service establishments, churches, and civic and public-service oriented groups.4 There was uncontradicted testimony at the trial that during the 26 years of public operation, the Shaker Heights system, pursuant to city council action, had not accepted or permitted any political or public issue advertising on its vehicles. App. 30A—32A.
8
When petitioner did not succeed in his effort to have his copy accepted, he sought declaratory and injunctive relief in the state courts of Ohio without success. The Supreme Court of Ohio concluded that 'the constitutionally protected right of free speech with respect to forums for oral speech, or the dissemination of literature on a city's streets, does not extend to commercial or political advertising on rapid transit vehicles.' 34 Ohio St.2d 143, 145—146, 296 N.E.2d 683, 685 (1973). There was no equal protection violation, the court said, because, '(a)s a class, all candidates for political office are treated alike under the Shaker's Heights Rapid Transit System's commercial advertising policy.' Id., at 148, 296 N.E.2d, at 686. The three dissenting justices viewed the transit system's advertising space as a free speech forum and would have held that no valid governmental interest was furthered by the differential treatment between political and other advertising. A policy excluding political advertisements, in their view, would therefore deny political advertisers the equal protection of the law. We granted certiorari in order to consider the important First and Fourteenth Amendment question the case presented.5 414 U.S. 1021, 94 S.Ct. 443, 38 L.Ed.2d 312 (1973).
9
It is urged that the car cards here constitute a public forum protected by the First Amendment, and that there is a guarantee of nondiscriminatory access to such publicly owned and controlled areas of communication 'regardless of the primary purpose for which the area is dedicated.' Brief for Petitioner 14.
10
We disagree. In Packer Corp. v. Utah, 285 U.S. 105, 110, 52 S.Ct. 273, 274, 76 L.Ed. 643 (1932), Mr. Justice Brandeis, in speaking for a unanimous Court, recognized that 'there is a difference which justifies the classification between display advertising and that in periodicals or newspapers.' In Packer the Court upheld a Utah statute that made it a misdemeanor to advertise cigarettes on "any bill board, street car sign, street car, . . . placard," but exempted dealers' signs on their places of business and cigarette advertising "in any newspaper, magazine, or periodical." Id., at 107, 52 S.Ct. at 273. The Court found no equal protection violation. It reasoned that viewers of billboards and streetcar signs had no 'choice or volition' to observe such advertising and had the message 'thrust upon them by all the arts and devices that skill can produce. . . . The radio can be turned off, but not so the billboard or street car placard.' Id., at 110, 52 S.Ct., at 274—275. 'The streetcar audience is a captive audience. It is there as a matter of necessity, not of choice.' Public Utilities Comm'n v. Pollak, 343 U.S. 451, 468, 72 S.Ct. 813, 823, 96 L.Ed. 1068 (1952) (Douglas, J., dissenting). In such situations, '(t)he legislature may recognize degrees of evil and adapt its legislation accordingly.' Packer Corp. v. Utah, 285 U.S., at 110, 52 S.Ct. at 275. Cf. Breard v. Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1951).
11
These situations are different from the traditional settings where First Amendment values inalterably prevail. Lord Dunedin, in M'Ara v. Magistrates of Edinburgh, (1913) Sess.Cas. 1059, 1073 1074, said: '(T)he truth is that open spaces and public places differ very much in their character, and before you could say whether a certain thing could be done in a certain place you would have to know the history of the particular place.' Although American constitutional jurisprudence, in the light of the First Amendment, has been jealous to preserve access to public places for purposes of free speech, the nature of the forum and the conflicting interests involved have remained important in determining the degree of protection afforded by the Amendment to the speech in question. See, e.g., Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941); Breard v. Alexandria, supra; Poulos v. New Hampshire, 345 U.S. 395, 73 S.Ct. 760, 97 L.Ed. 1105 (1953); Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965); Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969); Police Department of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972); Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973); Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973).
12
Here, we have no open spaces, no meeting hall, park, street corner, or other public thoroughfare. Instead, the city is engaged in commerce. It must provide rapid, convenient, pleasant, and inexpensive service to the commuters of Shaker Heights. The car card space, although incidental to the provision of public transportation, is a part of the commercial venture. In much the same way that a newspaper or periodical, or even a radio or television station, need not accept every proffer of advertising from the general public, a city transit system has discretion to develop and make reasonable choices concerning the type of advertising that may be displayed in its vehicles. In making these choices, this Court has held that a public utility 'will be sustained in its protection of activities in public places when those activities do not interfere with the general public convenience, comfort and safety.' Public Utilities Comm'n v. Pollak, 343 U.S., at 464—465, 72 S.Ct. at 821.
13
Because state action exists, however, the policies and practices governing access to the transit system's advertising space must not be arbitrary, capricious, or invidious. Here, the city has decided that '(p)urveyors of goods and services saleable in commerce may purchase advertising space on an equal basis, whether they be house builders or butchers.' 34 Ohio St.2d, at 146, 296 N.E.2d, at 685. This decision is little different from deciding to impose a 10-, 25-, or 35-cent fare, or from changing schedules or the location of bus stops, Public Utilities Comm'n v. Pollak, 343 U.S., at 465, 72 S.Ct. at 822. Revenue earned from long-term commercial advertising could be jeopardardized by a requirement that short-term candidacy or issue-oriented advertisements be displayed on car cards. Users would be subjected to the blare of political propaganda. There could be lurking doubts about favoritism, and sticky administrative problems might arise in parceling out limited space to eager politicians. In these circumstances, the managerial decision to limit car card space to innocuous and less controversial commercial and service oriented advertising does not rise to the dignity of a First Amendment violation. Were we to hold to the contrary, display cases in public hospitals, libraries, office buildings, military compounds, and other public facilities immediately would become Hyde Parks open to every would-be pamphleteer and politician. This the Constitution does not require.
14
No First Amendment forum is here to be found. The city consciously has limited access to its transit system advertising space in order to minimize chances of abuse, the appearance of favoritism, and the risk of imposing upon a captive audience. These are reasonable legislative objectives advanced by the city in a proprietary capacity. In these circumstances, there is no First or Fourteenth Amendment violation.
15
The judgment of the Supreme Court of Ohio is affirmed.
16
It is so ordered.
17
Affirmed.
18
Mr. Justice DOUGLAS, concurring.
19
Petitioner, a candidate for state office, attempted to purchase space for paid political advertising on vehicles of the Shaker Heights Rapid Transit System, a system owned and operated by the city of Shaker Heights, Ohio. Metromedia, Inc., the exclusive advertising agent for the system, refused petitioner the space on the basis of a contract with the system prohibiting the acceptance of political advertisements. Petitioner unsuccessfully sought injunctive relief in the state courts to restrain the city and Metromedia from refusing his advertising.
20
The petitioner contends that, by selling advertising space, the city has turned its buses into free speech forums and the city is now prohibited by the First Amendment, applicable to the States through the Fourteenth,1 from refusing space for political advertisements.
21
My Brother BRENNAN would find that '(a) forum for communication was voluntarily established when the city installed the physical facilities for the advertisements and, by contract with Metromedia, created the necessary administrative machinery for regulating access to that forum.' Post, at 314. If the streetcar or bus were a forum for communication akin to that of streets or public parks, considerable problems would be presented. 'The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all . . . but it must not, in the guise of regulation, be abridged or denied.' Hague v. CIO, 307 U.S. 496, 515—516, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939). But a streetcar or bus is plainly not a park or sidewalk or other meeting place for discussion, any more than is a highway. It is only a way to get to work or back home. The fact that it is owned and operated by the city does not without more make it a forum.
22
Bus and streetcar placards are in the category of highway billboards which have long been used to display an array of commercial and political messages. But this particular form of communication has been significantly curtailed by state regulation adopted pursuant to the Highway Beautification Act of 1965, 23 U.S.C. § 131, which conditions certain federal highway funds upon strict regulation of highway advertising. Ohio is among the States which have sought to protect the interests of their motorists2 by enacting regulations pursuant to the Act. Ohio Rev.Code Ann. § 5516.01 et seq. (Supp.1973). The fact that land on which a billboard rests is municipal land does not curtail or enhance such regulatory schemes.
23
If a bus is a forum it is more akin to a newspaper than to a park. Yet if a bus is treated as a newspaper, than, as we hold this date, Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730, the owner cannot be forced to include in his offerings news or other items which outsiders may desire but which the owner abhors. Newspaper cases are cited to support petitioner's claim. The First Amendment, however, draws no distinction between press privately owned, and press owned otherwise. And if we are to turn a bus or streetcar into either a newspaper or a park, we take great liberties with people who because of necessity become commuters and at the same time captive viewers or listeners.
24
In asking us to force the system to accept his message as a vindication of his constitutional rights, the petitioner overlooks the constitutional rights of the commuters. While petitioner clearly has a right to express his views to those who wish to listen, he has no right to force his message upon an audience incapable of declining to receive it. In my view the right of the commuters to be free from forced intrusions on their privacy precludes the city from transforming its vehicles of public transportation into forums for the dissemination of ideas upon this captive audience.
25
Buses are not recreational vehicles used for Sunday chautauquas as a public park might be used on holidays for such a purpose; they are a practical necessity for millions in our urban centers. I have already stated this view in my dissent in Public Utilities Comm'n v. Pollak, 343 U.S. 451, 469, 72 S.Ct. 813, 824, 96 L.Ed. 1068, involving the challenge by some passengers to the practice of broadcasting radio programs over loudspeakers in buses and streetcars: 'One who tunes in on an offensive program at home can turn it off or tune in another station, as he wishes. One who hears disquieting or unpleasant programs in public places, such as restaurants, can get up and leave. But the man on the streetcar has no choice but to sit and listen, or perhaps to sit and to try not to listen.' There is no difference when the message is visual, not auricular. In each the viewer or listener is captive.
26
I agree with Mr. Justice Brandeis who, quoting from a Utah State Court decision,3 said that the visual message in streetcars is no different, for "(a)dvertisements of this sort are constantly before the eyes of observers on the streets and in street cars to be seen without the exercise of choice or volition on their part. Other forms of advertising are ordinarily seen as a matter of choice on the part of the observer. . . . In the case of newspapers and magazines, there must be some seeking by the one who is to see and read the advertisement. The radio can be turned off, but not so the billboard or street car placard." Packer Corp. v. Utah, 285 U.S. 105, 110, 52 S.Ct. 273, 274, 76 L.Ed. 643.
27
I do not view the content of the message as relevant either to petitioner's right to express it or to the commuters' right to be free from it. Commercial advertisements may be as offensive and intrusive to captive audiences as any political message. But the validity of the commercial advertising program is not before us since we are not faced with one complaining of an invasion of privacy through forced exposure to commercial ads. Since I do not believe that petitioner has any constitutional right to spread his message before this captive audience, I concur in the Court's judgment.
28
Mr. Justice BRENNAN, with whom Mr. Justice STEWART, Mr. Justice MARSHALL, and Mr. Justice POWELL join, dissenting.
29
The city of Shaker Heights owns and operates the Shaker Heights Rapid Transit System, an interurban electric railroad line consisting of approximately 55 transit cars which transport passengers between Shaker Heights and Cleveland. Each of the cars contains 20 interior advertising spaces available for lease through the Metro Transit Division of Metromedia, Inc., the transit system's exclusive advertising agent. By agreement with the city, Metromedia accepts commercial and public service advertising, but will not accept 'political advertising.'
30
Prior to Ohio's 1970 general election, Harry J. Lehman, a candidate for the office of State Representative to the Ohio General Assembly for the 56th District, attempted to lease advertising space on the Shaker Heights Rapid Transit System, because, as he later testified, 'the vast majority of its six to eight thousand riders each day are residents of the district . . ..' (App. 14A). Although advertising space was available and Lehman's proposed advertisement1 met Metromedia's copy standards,2 rental space was nevertheless denied Lehman on the sole ground that Metromedia's contract with the city forbids acceptance of 'political advertising.'
31
After an unsuccessful attempt to persuade the city to alter its ban against political advertisements, Lehman commenced this action in the Court of Common Pleas for Cuyahoga County, Ohio, seeking declaratory and injunctive relief on the ground that the city's policy of prohibiting political advertisements infringed his freedom of speech and denied him equal protection of the laws. Finding no constitutional infirmities, the trial court denied relief and was affirmed by both the Cuyahoga County Court of Appeals and the Supreme Court of Ohio.
32
I would reverse. In my view, the city created a forum for the dissemination of information and expression of ideas when it accepted and displayed commercial and public service advertisements on its rapid transit vehicles. Having opened a forum for communication, the city is barred by the First and Fourteenth Amendments from discriminating among forum users solely on the basis of message content.
33
* The message Lehman sought to convey concerning his candidacy for public office was unquestionably protected by the First Amendment. That constitutional safeguard was fashioned to encourage and nurture 'uninhibited, robust, and wide-open' self-expression, particularly in matters of governing importance. New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 720, 11 L.Ed.2d 686 (1964). 'For speech concerning public affairs is more than self-expression; it 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). 'The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.' Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 536, 75 L.Ed. 1117 (1931). The fact that the message is proposed as a paid advertisement does not diminish the impregnable shelter afforded by the First Amendment. See New York Times Co. v. Sullivan, supra, 376 U.S., at 271, 84 S.Ct. at 721.
34
Of course, not even the right of political self-expression is completely unfettered. As we stated in Cox v. Louisiana, 379 U.S. 536, 554, 85 S.Ct. 453, 464, 13 L.Ed.2d 471 (1965):
35
'The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy.'
36
Accordingly, we have repeatedly recognized the constitutionality of reasonable 'time, place and manner' regulations which are applied in an evenhanded fashion. See, e.g., Police Department of Chicago v. Mosley, 408 U.S. 92, 98, 92 S.Ct. 2286, 2291, 33 L.Ed.2d 212 (1972); Grayned v. City of Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972); Cox v. Louisiana, supra, 379 U.S., at 554—555, 85 S.Ct. at 464—465; Poulos v. New Hampshire, 345 U.S. 395, 398, 73 S.Ct. 760, 762, 97 L.Ed. 1105 (1953); Cox v. New Hampshire, 312 U.S. 569, 575—576, 61 S.Ct. 762, 765—766, 85 L.Ed. 1049 (1941); Schneider v. State of N.J., 308 U.S. 147, 160, 60 S.Ct. 146, 150, 84 L.Ed. 155 (1939).
37
Focusing upon the propriety of regulating 'place,' the city of Shaker Heights attempts to justify its ban against political advertising by arguing that the interior advertising space of a transit car is an inappropriate forum for political expression and debate. Brief for Respondents 7. To be sure, there are some public places which are so clearly committed to other purposes that their use as public forums for communication is anomalous. For example, '(t) here may be some instances in which assemblies and petitions for redress of grievances are not consistent with other necessary purposes of public property. A noisy meeting may be out of keeping with the serenity of the statehouse or the quiet of the courthouse. No one . . . would suggest that the Senate gallery is the proper place for a vociferous protest rally. And in other cases it may be necessary to adjust the right to petition for redress of grievances to the other interests inhering in the uses to which the public property is normally pub.' Adderley v. Florida, 385 U.S. 39, 54, 87 S.Ct. 242, 250, 17 L.Ed.2d 149 (1966) (Douglas, J., dissenting). The determination of whether a particular type of public property or facility constitutes a 'public forum' requires the Court to strike a balance between the competing interests of the government, on the one hand, and the speaker and his audience, on the other.3 Thus, the Court must assess the importance of the primary use to which the public property or facility is committed and the extent to which that use will be disrupted if access for free expression is permitted.
38
Applying these principles, the Court has long recognized the public's right of access to public streets and parks for expressive activity. As Mr. Justice Roberts wrote in Hague v. CIO, 307 U.S. 496, 515—516, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939):
39
'Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.'
40
See also Jamison v. Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869 (1943); Cox v. Louisiana, supra. More recently, the Court has added state capitol grounds to the list of public forums compatible with free speech, free assembly, and the freedom to petition for redress of grievances, Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963), but denied similar status to the curtilage of a jailhouse, on the ground that jails are built for security and thus need not be opened to the general public, Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966).4
41
In the circumstances of this case, however, we need not decide whether public transit cars must be made available as forums for the exercise of First Amendment rights. By accepting commercial and public service advertising, the city effectively waived any argument that advertising in its transit cars is incompatible with the rapid transit system's primary function of providing transportation. A forum for communication was voluntarily established when the city installed the physical facilities for the advertisements and, by contract with Metromedia, created the necessary administrative machinery for regulating access to that forum.5
42
The plurality opinion, however, contends that as long as the city limits its advertising space to 'innocuous and less controversial commercial and service oriented advertising,' no First Amendment forum is created. Ante, at 304. I find no merit in that position. Certainly, noncommercial public service advertisements convey messages of public concern and are clearly protected by the First Amendment. And while it is possible that commercial advertising may be accorded less First Amendment protection than speech concerning political and social issues of public importance, compare Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942), with Schneider v. State of N.J., 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939), and Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1951), with Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943), it is 'speech' nonetheless, often communicating information and ideas found by many persons to be controversial.6 There can be no question that commercial advertisements, when skillfully employed, are powerful vehicles for the exaltation of commercial values. Once such messages have been accepted and displayed, the existence of a forum for communication cannot be gainsaid. To hold otherwise, and thus sanction the city's preference for bland commercialism and noncontroversial public service messages over 'uninhibited, robust, and wide-open' debate on public issues, would reverse the traditional priorities of the First Amendment.7
II
43
Once a public forum for communication has been established, both free speech and equal protection principles prohibit discrimination based solely upon subject matter or content.8 See, e.g., Police Department of Chicago v. Mosley, 408 U.S., at 95—96, 92 S.Ct., at 2289—2290; Cox v. Louisiana, 379 U.S. 559, 581, 85 S.Ct. 476, 470, 13 L.Ed.2d 487 (1965) (Black, J., concurring and dissenting); Fowler v. Rhode Island, 345 U.S. 67, 73 S.Ct. 526, 97 L.Ed. 828 (1953); Niemotko v. Maryland, 340 U.S. 268, 272—273, 71 S.Ct. 325, 327—328, 95 L.Ed. 267, 280 (1951).
44
'Necessarily, then, under the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. And it may not select which issues are worth discussing or debating in public facilities. There is an 'equality of status in the field of ideas,' and government must afford all points of view an equal opportunity to be heard. Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say. Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone.' Police Department of Chicago v. Mosley, supra, 408 U.S., at 96, 92 S.Ct., at 2290 (footnote omitted).
45
That the discrimination is among entire classes of ideas, rather than among points of view within a particular class, does not render it any less odious. Subject matter or content censorship in any form is forbidden.9
46
To insure that subject matter or content is not the sole basis for discrimination among forum users, all selective exclusions from a public forum must be closely scrutinized and countenanced only in cases where the government makes a clear showing that its action was taken pursuant to neutral 'time, place and manner' regulations, narrowly tailored to protect the government's substantial interest in preserving the viability and utility of the forum itself. See, e.g., Police Department of Chicago v. Mosley, supra, 408 U.S., at 98—102, 92 S.Ct. at 2291—2294; Grayned v. City of Rockford, 408 U.S., at 115 117, 92 S.Ct. at 2302—2304; Shuttlesworth v. Birmingham, 394 U.S. 147, 152—153, 89 S.Ct. 935, 939—940, 22 L.Ed.2d 162 (1969); Tinker v. Des Moines School District, 393 U.S. 503, 508, 514, 89 S.Ct. 733, 737, 740, 21 L.Ed.2d 731 (1969); cf. Dunn v. Blumstein, 405 U.S. 330, 336—337, 92 S.Ct. 995, 999—1000, 31 L.Ed.2d 274 (1972); Williams v. Rhodes, 393 U.S. 23, 31, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968). The city has failed to discharge that heavy burden in the present case.
47
The Court's special vigilance is triggered in this case because of the city's undisputed ban against political advertising in its transit cars. Commercial and public service advertisements are routinely accepted for display, while political messages are absolutely prohibited. Few examples are required to illustrate the scope of the city's policy and practice. For instance, a commercial advertisement peddling snowmobiles would be accepted, while a counter-advertisement calling upon the public to support legislation controlling the environmental destruction and noise pollution caused by snowmobiles would be rejected. Alternatively, a public service ad by the League of Women Voters would be permitted, advertising the existence of an upcoming election and imploring citizens to vote, but a candidate, such as Lehman, would be barred from informing the public about his candidacy, qualifications for office, or position on particular issues. These, and other examples,10 make perfectly clear that the selective exclusion of political advertising is not the product of evenhanded application of neutral 'time, place, and manner' regulations. Rather, the operative—and constitutionally impermissible—distinction is the message on the sign. That conclusion is not dispelled by any of the city's asserted justifications for selectively excluding political advertising.
48
The city contends that its ban against political advertising is bottomed upon its solicitous regard for 'captive riders' of the rapid transit system, who are 'forced to endure the advertising thrust upon (them).' Brief for Respondents 8. Since its rapid transit system is primarily a mode of transportation, the city argues that it may prohibit political advertising in order to shield its transit passengers from sometimes controversial or unsettling speech. Whatever merit the city's argument might have in other contexts, it has a hollow ring in the present case, where the city has voluntarily opened its rapid transit system as a forum for communication. In that circumstance, the occasional appearance of provocative speech should be expected. Indeed, the Court has recognized that 'a function of free speech under our system of government is to invite dispute. . . . Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.' Terminiello v. City of Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 806, 93 L.Ed. 1131 (1949).
49
The line between ideological and nonideological speech is impossible to draw with accuracy. By accepting commercial and public service advertisements, the city opened the door to 'sometimes controversial or unsettling speech' and determined that such speech does not unduly interfere with the rapid transit system's primary purpose of transporting passengers. In the eyes of many passengers, certain commercial or public service messages11 are as profoundly disturbing as some political advertisements might be to other passengers. There is certainly no evidence in the record of this case indicating that political advertisements, as a class, are so disturbing when displayed that they are more likely than commercial or public service advertisements to impair the rapid transit system's primary function of transportation. In the absence of such evidence, the city's selective exclusion of political advertising constitutes an invidious discrimination on the basis of subject matter, in violation of the First and Fourteenth Amendment.
50
Moreover, even if it were possible to draw a manageable line between controversial and noncontroversial messages, the city's practice of censorship for the benefit of 'captive audiences' still would not be justified.12 This is not a case where an unwilling or unsuspecting rapid transit rider is powerless to avoid messages he deems unsettling. The advertisements accepted by the city and Metromedia are not broadcast over loudspeakers in the transit cars. The privacy of the passengers is not, therefore, dependent upon their ability 'to sit and to try not to listen.' Public Utilities Comm'n v. Pollak, 343 U.S. 451, 469, 72 S.Ct. 813, 824, 96 L.Ed. 1068 (1952) (DOUGLAS, J., dissenting); cf. Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949); Saia v. New York, 334 U.S. 558, 562, 68 S.Ct. 1148, 1150, 92 L.Ed. 1574 (1948). Rather, all advertisements accepted for display are in written form. Transit passengers are not forced or compelled to read any of the messages, nor are they 'incapable of declining to receive (them),' ante, at 307 (Douglas, J., concurring). Should passengers chance to glance at advertisements they find offensive, they can 'effectively avoid further bombardment of their sensibilities simply by averting their eyes.' Cohen v. California, 403 U.S. 15, 21, 91 S.Ct. 1780, 1786, 29 L.Ed.2d 284 (1971). Surely that minor inconvenience is a small price to pay for the continued preservation of so precious a liberty as free speech.
51
The city's remaining justification is equally unpersuasive. The city argues that acceptance of 'political advertisements in the cars of the Shaker Heights rapid transit, would suggest, on the one hand, some political favoritism is being granted to candidates who advertise, or, on the other hand, that the candidate so advertised is being supported or promoted by the government of the City.' Brief for Respondents 8. Clearly, such ephemeral concerns do not provide the city with carte blanche authority to exclude an entire category of speech from a public forum. 'These pragmatic hurdles are no more relevant to a public forum when it is a motor coach than they are to a public park or a school auditorium. The endorsement of an opinion expressed in an advertisement on a motor coach is no more attributable to the transit district than the view of a speaker in a public park is to the city administration or the tenets of an organization using school property for meetings is to the local school board.' Wirta v. Alameda-Contra Costa Transit District, 68 Cal.2d 51, 61, 64 Cal.Rptr. 430, 437, 434 P.2d 982, 989 (1967). The city has introduced no evidence demonstrating that its rapid transit passengers would naively think otherwise. And though there may be 'lurking doubts about favoritism,' ante, at 304, the Court has held that '(n)o such remote danger can justify the immediate and crippling impact on the basic constitutional rights involved in this case.' Williams v. Rhodes, 393 U.S., at 33, 89 S.Ct., at 12.
52
Moreover, neutral regulations, which do not distinguish among advertisements on the basis of subject matter, can be narrowly tailored to allay the city's fears. The impression of city endorsement can be dispelled by requiring disclaimers to appear prominently on the face of every advertisement.13 And while problems of accommodating all potential advertisers may be vexing at times, the appearance of favoritism can be avoided by the evenhanded regulation of time, place, and manner for all advertising, irrespective of subject matter.
53
I would, therefore, reverse the judgment of the Supreme Court of Ohio and remand this case for further proceedings not inconsistent with this opinion.
1
Metromedia has a written Metro Transit Advertising Copy Policy setting forth the following criteria:
'(1) Metro Transit Advertising will not display advertising copy that is false, misleading, deceptive and/or offensive to the moral standards of the community, or contrary to good taste. Copy which might be contrary to the best interests of the transit systems, or which might result in public criticism of the advertising industry and/or transit advertising will not be acceptable.
'(2) Metro Transit Advertising will not accept any political copy that pictorially, graphically or otherwise states or suggests that proponents or opponents of the persons or measures advertised are vulgar, greedy, immoral, monopolistic, illegal or unfair.
'(10) Political advertising will not be accepted on following systems: Shaker Rapid—Maple Heights—North Olmsted—Euclid, Ohio.' Shaker Heights' Exhibit A.
2
Mr. Lehman testified: 'We are using various methods (of pro-promoting my candidacy), including newspaper advertising . . .. We plan to use direct mail advertising, postcards, and circulars of various types.' App. 14A.
3
The system operated only 55 cars, App. 15A, each with 20 advertising spaces. Tr. of Oral Arg. 23—24.
4
Receipts from the sale of advertising amounted to $12,000 annually. Tr. of Oral Arg. 27. These receipts supplemented operating revenues generated from the fares paid by the passengers who used the system daily.
5
Cf. Wirta v. Alameda-Contra Costa Transit District, 68 Cal.2d 51, 64 Cal.Rptr. 430, 434 P.2d 982 (1967); Kissinger v. New York City Transit Authority, 274 F.Supp. 438 (S.D.N.Y.1967); Hillside Community Church v. City of Tacoma, 76 Wash.2d 63, 455 P.2d 350 (1969).
1
The Court has frequently rested state free speech and free press decisions on the Fourteenth Amendment generally, rather than on the Due Process Clause alone. See, e.g., Bridges v. California, 314 U.S. 252, 263 N. 6, 62 S.Ct. 190, 194, 86 L.Ed. 192; Saia v. New York, 334 U.S. 558, 560, 68 S.Ct. 1148, 1149, 92 L.Ed. 1574; Elfbrandt v. Russell, 384 U.S. 11, 18, 86 S.Ct. 1238, 1241, 16 L.Ed.2d 321; Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1436, 16 L.Ed.2d 484.
2
In a survey of motorists in Ohio, 71% expressed the opinion that billboards should be banned from the interstate highway system. Hearings on S. 1467 before the Subcommittee on Roads of the Senate Committee on Public Works, 90th Cong., 1st Sess., 43—44 (1967).
3
77 Utah 500, 515, 297 P. 1013, 1019 (1931).
1
The text of the proposed advertisement read as follows:
'Harry J. Lehman Is Old Fashioned!/About Honesty, Integrity And Good Government/State Representative—District 56.'
2
The Metro Transit Advertising Copy Policy states:
'(1) Metro Transit Advertising will not display advertising copy that is false, misleading, deceptive and/or offensive to the moral standards of the community, or contrary to good taste. Copy which might be contrary to the best interests of the transit systems, or which might result in public criticism of the advertising industry and/or transit advertising will not be acceptable.
'(2) Metro Transit Advertising will not accept any political copy that pictorially, graphically or otherwise states or suggests that proponents or opponents of the persons or measures advertised are vulgar, greedy, immoral, monopolistic, illegal or unfair.
'(3) All copy subject to approval. Rough sketches with proposed copy required on all political advertising.
'(4) Metro Transit Advertising reserves the right at all times to decline both sides of any proposition and/or opposing candidates.
'(5) Political advertising must carry, visible within the advertising are of the poster, the tag-line:
"Paid Political Advertising Sponsored by . . .' in letters sized as follows:
"Exterior: 30" x 144" King size posters-1"
21" x 44" Traveling displays—1/2"
21" x 72" Taillight spectacular—1"
"Interior: 11" x 28"- 1/4" 11" x 56"-1/4"
'(6) Contracts for political advertising space must be accompanied by check for entire amount of contract.
'(7) Posters and/or cards must be delivered, prepaid, 10 days prior to posting date.
'(8) Equal opportunity to purchase space will be offered and allotted for each opposing candidate, bond issue or referendum. If necessary, contracts for political advertising will be held until 30 days prior to the contract posting date, at which time Metro Transit Advertising will allocate the advertising space to each candidate, issue or referendum.
'(9) Minimum order acceptable for either cards or posters is at the one-(month rate).
'(10) Political advertising will not be accepted on following systems: Shaker Rapid—Maple Heights—North Olmsted—Euclid, Ohio.' (Emphasis added.)
3
See generally Kalven, The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup.Ct.Rev. 1; Gorlick, Right to a Forum, 71 Dick.L.Rev. 273 (1967); Horning, The First Amendment Right to a Public Forum, 1969 Duke L.J. 931.
4
Public-forum status has also been extended to municipal bus terminals, see Wolin v. Port of New York Authority, 392 F.2d 83 (CA2 1968), and railroad stations, see In re Hoffman, 67 Cal.2d 845, 64 Cal.Rptr. 97, 434 P.2d 353 (1967).
5
My Brother DOUGLAS' analogy to billboard and newspaper advertising, ante, at 306—308, is not apropos in the circumstances of this case where the advertising display space is city owned and operated.
6
There is some doubt concerning whether the 'commercial speech' distinction announced in Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942), retains continuing validity. Mr. Justice Douglas has remarked: 'The 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 (1959) (concurring opinion). See also Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 393, 93 S.Ct. 2553, 2562, 37 L.Ed.2d 669 (1973) (Burger, C.J., dissenting); id., at 401, 93 S.Ct. at 2565 (Douglas, J., dissenting); id., at 401, 93 S.Ct. at 2566 (Stewart, J., dissenting). That question, however, need not be decided in this case. It is sufficient for the purpose of public forum analysis merely to recognize that commercial speech enjoys at least some degree of protection under the First Amendment, without reaching the more difficult question concerning the amount of protection afforded.
7
Other courts have reached the same conclusion on nearly identical facts. See Kissinger v. New York City Transit Authority, 274 F.Supp. 438 (S.D.N.Y.1967); Hillside Community Church, Inc. v. City of Tacoma, 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).
8
The plurality opinion's reliance upon Packer Corp. v. Utah, 285 U.S. 105, 52 S.Ct. 273, 76 L.Ed. 643 (1932), is misplaced. As Mr. Justice Douglas noted in Cammarano v. United States, supra, 358 U.S., at 513 n., 79 S.Ct., at 533 n. (concurring opinion): 'In Packer Corp. v. Utah, 285 U.S. 105, (52 S.Ct. 273, 76 L.Ed. 643), the First Amendment problem was not raised. The extent to which such advertising could be regulated consistently with the First Amendment (cf. Cantwell v. Connecticut, 310 U.S. 296 (60 S.Ct. 900, 84 L.Ed. 1213); Martin v. Struthers, 319 U.S. 141 (63 S.Ct. 862, 87 L.Ed. 1313); Breard v. Alexandria, 341 U.S. 622 (71 S.Ct. 920, 95 L.Ed. 1233); Roth v. United States, 354 U.S. 476 (77 S.Ct. 1304, 1 L.Ed.2d 1498) has therefore never been authoritatively determined.' See also n. 6, supra.
9
The existence of other public forums for the dissemination of political messages is, of course, irrelevant. As the Court said in Schneider v. State of N.J., 308 U.S. 147, 163, 60 S.Ct. 146, 151, 84 L.Ed. 155 (1939), 'one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.'
10
In declaring unconstitutional an advertising policy remarkably similar to the city's policy in the present case, the California
Supreme Court detailed 'the paradoxical scope of the (transit) district's policy (banning political advertising)' in the following manner:
'A cigarette company is permitted to advertise the desirability of smoking its brand, but a cancer society is not entitled to caution by advertisement that cigarette smoking is injurious to health. A theater may advertise a motion picture that portrays sex and violence, but the Legion for Decency has no right to post a message calling for clean films. A lumber company may advertise its wood products, but a conservation group cannot implore citizens to write to the President or Governor about protecting our natural resources. An oil refinery may advertise its products, but a citizens' organization cannot demand enforcement of existing air pollution statutes. An insurance company may announce its available policies, but a senior citizens' club cannot plead for legislation to improve our social security program. The district would accept an advertisement from a television station that is commercially inspired, but would refuse a paid nonsolicitation message from a strictly educational television station. Advertisements for travel, foods, clothing, toiletries, automobiles, legal drugs—all these are acceptable, but the American Legion would not have the right to place a paid advertisement reading, 'Support Our Boys in Viet Nam. Send Holiday Packages," Wirta v. Alameda-Contra Costa Transit District, 68 Cal.2d 51, 57—58, 64 Cal.Rptr. 430, 434—435, 434 P.2d 982, 986—987 (1967).
11
For example, the record indicates that church advertising was accepted for display on the Shaker Heights Rapid Transit System. See App. 26A.
12
My Brother DOUGLAS' contrary view, that 'the right of the commuters to be free from forced intrusions on their privacy precludes the city from transforming its vehicles of public transportation into forums for the dissemination of ideas upon this captive audience,' irrespective of whether the speech in question is commercial or noncommercial, ante at 307, does not dispose of the First and Fourteenth Amendment issues in this case. The record reveals that the Shaker Heights Rapid Transit System provides advertising space on the outside as well as the inside of its cars. See App. 24A, Lehman was denied access to both. Whatever applicability a 'captive audience' theory may have to interior advertising, it simply cannot justify the city's refusal to rent Lehman exterior advertising space.
13
Metro's current copy policy provides for such disclaimers in those city transit systems that accept political advertisements. See n. 2, supra, at (5).
| 23
|
418 U.S. 405
94 S.Ct. 2727
41 L.Ed.2d 842
Harold Omand SPENCE, Appellant,v.STATE OF WASHINGTON.
No. 72—1690.
Argued Jan. 9, 1974.
Decided June 25, 1974.
Peter Greenfield, Seattle, Wash., for appellant.
James E. Warme, Seattle, Wash., for appellee.
PER CURIAM.
1
Appellant displayed a United States flag, which he owned, out of the window of his apartment. Affixed to both surfaces of the flag was a large peace symbol fashioned of removable tape. Appellant was convicted under a Washington statute forbidding the exhibition of a United States flag to which is attached or superimposed figures, symbols, or other extraneous material. The Supreme Court of Washington affirmed appellant's conviction. 81 Wash.2d 788, 506 P.2d 293 (1973). It rejected appellant's contentions that the statute under which he was charged, on its face and as applied, contravened the First Amendment, as incorporated by the Fourteenth Amendment, and was void for vagueness. We noted probable jurisdiction. 414 U.S. 815, 94 S.Ct. 61, 38 L.Ed.2d 48 (1973). We reverse on the ground that as applied to appellant's activity the Washington statute impermissibly infringed protected expression.
2
* On May 10, 1970, appellant, a college student, hung his United States flag from the window of his apartment on private property in Seattle, Washington. The flag was upside down, and attached to the front and back was a peace symbol (i.e., a circle enclosing a trident) made of removable black tape. The window was above the ground floor. The flag measured approximately three by five feet and was plainly visible to passersby. The peace symbol occupied roughly half of the surface of the flag.
3
Three Seattle police officers observed the flag and entered the apartment house. They were met at the main door by appellant, who said: 'I suppose you are here about the flag. I didn't know there was anything wrong with it. I will take it down.' Appellant permitted the officers to enter his apartment, where they seized the flag and arrested him. Appellant cooperated with the officers. There was no disruption or altercation.
4
Appellant was not charged under Washington's flag-desecration statute. See Wash.Rev.Code § 9.86.030, as amended.1 Rather, the State relied on the so-called 'improper use' statute, Wash Rev.Code § 9.86.020. This statute provides, in pertinent part:
5
'No person shall, in any manner, for exhibition or display:
6
'(1) Place or cause to be placed any word, figure, mark, picture, design, drawing or advertisement of any nature upon any flag, standard, color, ensign or shield of the United States or of this state . . . or
7
'(2) Expose to public view any such flag, standard, color, ensign or shield upon which shall have been printed, painted or otherwise produced, or to which shall have been attached, appended, affixed or annexed any such word, figure, mark, picture, design, drawing or advertisement . . ..'2
8
Appellant initially was tried to the bench in a local justice court, where he was found guilty and sentenced to 90 days' confinement, with 60 days suspended. Appellant exercised his right to be tried de novo in King County Superior Court, where he received a jury trial.
9
The State based its case on the flag itself and the testimony of the three arresting officers, who testified that they had observed the flag displayed from appellant's window and that on the flag was superimposed what they identified as a peace symbol. Appellant took the stand in his own defense. He testified that he put a peace symbol on the flag and displayed it to public view as a protest against the invasion of Cambodia and the killings at Kent State University, events which occurred a few days prior to his arrest. He said that his purpose was to associate the American flag with peace instead of war and violence:
10
'I felt there had been so much killing and that this was not what America stood for. I felt that the flag stood for America and I wanted people to know that I thought America stood for peace.'
11
Appellant further testified that he chose to fashion the peace symbol from tape so that it could be removed without damaging the flag. The State made no effort to controvert any of appellant's testimony.
12
The trial court instructed the jury in essence that the mere act of displaying the flag with the peace symbol attached, if proved beyond a reasonable doubt, was sufficient to convict. There was no requirement of specific intent to do anything more than display the flag in that manner. The jury returned a verdict of guilty. The court sentenced appellant to 10 days in jail, suspended, and to a $75 fine. The Washington Court of Appeals reversed the conviction. 5 Wash.App. 752, 490 P.2d 1321 (1971). It held the improper-use statute overbroad and invalid on its face under the First and Fourteenth Amendments. With one justice dissenting and two concurring in the result, the Washington Supreme Court reversed and reinstated the conviction. 81 Wash.2d 788, 506 P.2d 293 (1973).
II
13
A number of factors are important in the instant case. First, this was a privately owned flag. In a technical property sense it was not the property of any government. We have no doubt that the State or National Governments constitutionally may forbid anyone from mishandling in any manner a flag that is public property. But this is a different case. Second, appellant displayed his flag on private property. He engaged in no trespass or disorderly conduct. Nor is this a case that might be analyzed in terms of reasonable time, place, or manner restraints on access to a public area. Third, the record is devoid of proof of any risk of breach of the peace. It was not appellant's purpose to incite violence or even stimulate a public demonstration. There is no evidence that any crowd gathered or that appellant made any effort to attract attention beyond hanging the flag out of his own window. Indeed, on the facts stipulated by the parties there is no evidence that anyone other than the three police officers observed the flag.
14
Fourth, the State concedes, as did the Washington Supreme Court, that appellant engaged in a form of communication.3 Although the stipulated facts fail to show that any member of the general public viewed the flag, the State's concession is inevitable on this record. The undisputed facts are that appellant 'wanted people to know that I thought America stood for peace.' To be sure, appellant did not choose to articulate his views through printed or spoken words. It is therefore necessary to determine whether his activity was sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments, for as the Court noted in United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968), '(w)e cannot accept the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea.' But the nature of appellant's activity, combined with the factual context and environment in which it was undertaken, lead to the conclusion that he engaged in a form of protected expression.
15
The Court for decades has recognized the communicative connotations of the use of flags. E.g., Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931). In many of their uses flags are a form of symbolism comprising a 'primitive but effective way of communicating ideas . . .,' and 'a short cut from mind to mind.' West Virginia State Board of Education v. Barnette, 319 U.S. 624, 632, 63 S.Ct. 1178, 1182, 87 L.Ed. 1628 (1943). On this record there can be little doubt that appellant communicated through the use of symbols. The symbolism included not only the flag but also the superimposed peace symbol.
16
Moreover, the context in which a symbol is used for purposes of expression is important, for the context may give meaning to the symbol. See Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). In Tinker, the wearing of black armbands in a school environment conveyed an unmistakable message about a contemporaneous issue of intense public concern—the Vietnam hostilities. Id., at 505—514, 89 S.Ct., at 735—740. In this case, appellant's activity was roughly simultaneous with and concededly triggered by the Cambodian incursion and the Kent State tragedy, also issues of great public moment. Cf. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). A flag bearing a peace symbol and displayed upside down by a student today might be interpreted as nothing more than bizarre behavior, but it would have been difficult for the great majority of citizens to miss the drift of appellant's point at the time that he made it.
17
It may be noted, further, that this was not an act of mindless nihilism. Rather, it was a pointed expression of anguish by appellant about the then-current domestic and foreign affairs of his government. An intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.
18
We are confronted then with a case of prosecution for the expression of an idea through activity. Moreover, the activity occurred on private property, rather than in an environment over which the State by necessity must have certain supervisory powers unrelated to expression. Cf. Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974); Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972); Tinker v. Des Moines Independent Community School District, supra. Accordingly, we must examine with particular care the interests advanced by appellee to support its prosecution.
19
We are met at the outset with something of an enigma in the manner in which the case was presented to us. The Washington Supreme Court rejected any reliance on a breach-of-the-peace rationale. 81 Wash.2d, at 796 n. 1, 506 P.2d, at 299 n. 1. It based its result primarily on the ground that 'the nation and state both have a recognizable interest in preserving the flag as a symbol of the nation . . ..'4 Yet counsel for the State declined to support the highest state court's principal rationale in argument before us.5 He pursued instead the breach-of-the-peace theory discarded by the state court. Indeed, that was the only basis on which he chose to support the constitutionality of the state statute.
20
Despite counsel's approach, we think it appropriate to review briefly the range of various state interests that might be thought to support the challenged conviction, drawing upon the arguments before us, the opinions below, and the Court's opinion in Street v. New York, 394 U.S. 576, 590—594, 89 S.Ct. 1354, 1364—1366, 22 L.Ed.2d 572 (1969). The first interest at issue is prevention of breach of the peace. In our view, the Washington Supreme Court correctly rejected this notion. It is totally without support in the record.
21
We are also unable to affirm the judgment below on the ground that the State may have desired to protect the sensibilities of passersby. 'It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.' Street v. New York, supra, at 592, 89 S.Ct., at 1366. Moreover, appellant did not impose his ideas upon a captive audience. Anyone who might have been offended could easily have avoided the display. See Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). Nor may appellant be punished for failing to show proper respect for our national emblem. Street v. New York, supra, 394 U.S., at 593, 89 S.Ct., at 1366; West Virginia State Board of Education v. Barnette, supra.6
22
We are brought, then, to the state court's thesis that Washington has an interest in preserving the national flag as an unalloyed symbol of our country. The court did not define this interest; it simply asserted it. See 81 Wash.2d, at 799, 506 P.2d, at 300. Mr. Justice REHNQUIST's dissenting opinion today, see post, at 420—422, adopts essentially the same approach. Presumably, this interest might be seen as an effort to prevent the appropriation of a reversed national symbol by an individual, interest group, or enterprise where there was a risk that association of the symbol with a particular product or viewpoint might be taken erroneously as evidence of governmental endorsement.7 Alternatively, it might be argued that the interest asserted by the state court is based on the uniquely universal character of the national flag as a symbol. For the great majority of us, the flag is a symbol of patriotism, of pride in the history of our country, and of the service, sacrifice, and valor of the millions of Americans who in peace and war have joined together to build and to defend a Nation in which self-government and personal liberty endure. It evidences both the unity and diversity which are America. For others the flag carries in varying degrees a different message. 'A person gets from a symbol the meaning he puts into it, and what is one man's comfort and inspiration is another's jest and scorn.' West Virginia State Board of Education v. Barnette, 319 U.S., at 632—633, 63 S.Ct., at 1182. It might be said that we all draw something from our national symbol, for it is capable of conveying simultaneously a spectrum of meanings. If it may be destroyed or permanently disfigured, it could be argued that it will lose its capability of mirroring the sentiments of all who view it.
23
But we need not decide in this case whether the interest advanced by the court below is valid.8 We assume, arguendo, that it is. The statute is nonetheless unconstitutional as applied to appellant's activity.9 There was no risk that appellant's acts would mislead viewers into assuming that the Government endorsed his viewpoint To the contrary, he was plainly and peacefully10 protesting the fact that it did not. Appellant was not charged under the desecration statute, see n. 1, supra, nor did he permanently disfigure the flag or destroy it. He displayed it as a flag of his country in a way closely analogous to the manner in which flags have always been used to convey ideas. Moreover, his message was direct, likely to be understood, and within the contours of the First Amendment. Given the protected character of his expression and in light of the fact that no interest the State may have in preserving the physical integrity of a privately owned flag was significantly impaired on these facts, the conviction must be invalidated.11
24
The judgment is reversed.
25
It is so ordered.
26
Judgment reversed.
27
Mr. Justice BLACKMUN concurs in the result.
28
Mr. Justice DOUGLAS, concurring.
29
I would reverse the judgment for substantially the same reasons given by the Iowa Supreme Court in State v. Kool, 212 N.W.2d 518. In that case the defendant hung a peace symbol made of cardboard and wrapped in tinfoil in the window of his home and hung a replica of the United States flag behind the peace symbol but in an upside-down position. The state statute made it a crime to 'cast contempt upon, satirize, deride or burlesque (the) flag,' Iowa Code § 32.1.
30
The court held that defendant's conduct constituted 'symbolic speech.' The court, in reversing the conviction, said:
31
'Someone in Newton might be so intemperate as to disrupt the peace because of this display. But if absolute assurance of tranquility is required, we may as well forget about free speech. Under such a requirement, the only 'free' speech would consist of platitudes. That kind of speech does not need constitutional protection.' 212 N.W.2d, at 521.
32
That view is precisely my own. Hence I concur in reversing this judgment of conviction.
33
Mr. Chief Justice BURGER, dissenting.
34
If the constitutional role of this Court were to strike down unwise laws or restrict unwise application of some laws, I could agree with the result reached by the Court. That is not our function, however, and it should be left to each State and ultimately the common sense of its people to decide how the flag, as a symbol of national unity, should be protected.
35
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE and Mr. Justice WHITE join, dissenting.
36
The Court holds that a Washington statute prohibiting persons from attaching material to the American flag was unconstitutionally applied to appellant. Although I agree with the Court that appellant's activity was a form of communication, I do not agree that the First Amendment prohibits the State from restricting this activity in furtherance of other important interests. And I believe the rationale by which the Court reaches its conclusion is unsound.
37
'(T)he right of free speech is not absolute at all times and under all circumstances.' Chaplinsky v. New Hampshire, 315 U.S. 568, 571, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942). This Court has long recognized, for example, that some forms of expression are not entitled to any protection at all under the First Amendment, despite the fact that they could reasonably be thought protected under its literal language. See Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). The Court has further recognized that even protected speech may be subject to reasonable limitation when important countervailing interests are involved. Citizens are not completely free to commit perjury, to libel other citizens, to infringe copyrights, to incite riots, or to interfere unduly with passage through a public thoroughfare. The right of free speech, though precious, remains subject to reasonable accommodation to other valued interests.
38
Since a State concededly may impose some limitations on speech directly, it would seem to follow a fortiori that a State may legislate to protect important state interests even though an incidental limitation on free speech results. Virtually any law enacted by a State, when viewed with sufficient ingenuity, could be thought to interfere with some citizen's preferred means of expression. But no one would argue, I presume, that a State could not prevent the painting of public buildings simply because a particular class of protesters believed their message would best be conveyed through that medium. Had appellant here chosen to tape his peace symbol to a federal courthouse, I have little doubt that he could be prosecuted under a statute properly drawn to protect public property.
39
Yet the Court today holds that the State of Washington cannot limit use of the American flag, at least insofar as its statute prevents appellant from using a privately owned flag to convey his personal message. Expressing its willingness to assume, arguendo, that Washington has a valid interest in preserving the integrity of the flag, the Court nevertheless finds that interest to be insufficient in this case. To achieve this result the Court first devalues the State's interest under these circumstances, noting that 'no interest the State may have in preserving the physical integrity of a privately owned flag was significantly impaired on these facts. . . .' The Court takes pains to point out that appellant did not 'permanently disfigure the flag or destroy it,' and emphasizes that the flag was displayed 'in a way closely analogous to the manner in which flags have always been used to convey ideas.' The Court then restates the notion that such state interests are secondary to messages which are 'direct, likely to be understood, and within the contours of the First Amendment.' Ante, at 415. In my view the first premise demonstrates a total misunderstanding of the State's interest in the integrity of the American flag, and the second premise places the Court in the position either of ultimately favoring appellant's message because of its subject matter, a position about which almost all members of the majority have only recently expressed doubt, or, alternatively, of making the flag available for a limitless succession of political and commercial messages. I shall treat these issues in reverse order.
40
The statute under which appellant was convicted is no stranger to this Court, a virtually identical statute having been before the Court in Halter v. Nebraska, 205 U.S. 34, 27 S.Ct. 419, 51 L.Ed. 696 (1907). In that case the Court held that the State of Nebraska could enforce its statute to prevent use of a flag representation on beer bottles, stating flatly that 'a State will be wanting in care for the well-being of its people if it ignores the fact that they regard the flag as a symbol of their country's power and prestige . . ..' Id., at 42, 27 S.Ct., at 422. The Court then continued: 'Such an use tends to degrade and cheapen the flag in the estimation of the people, as well as to defeat the object of maintaining it as an emblem of national power and national honor.' Ibid.
41
The Court today finds Halter irrelevant to the present case, pointing out that it was decided almost 20 years before the First Amendment was applied to the States and further noting that it involved 'commercial behavior,' a form of expression the Court presumably will consider another day.1 Insofar as Halter assesses the State's interest, of course, the Court's argument is simply beside the point. But even as the argument relates to appellant's interest, I find it somewhat difficult to grasp. The Court may possibly be suggesting that political expression deserves greater protection than other forms of expression, but that suggestion would seem quite inconsistent with the position taken in Lehman v. Shaker Heights 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770,2 by nearly all Members of the majority in the instant case. Yet if the Court is suggesting that Halter would now be decided differently, and that the State's interest in the flag falls before any speech which is 'direct, likely to be understood, and within the contours of the First Amendment,' that view would mean the flag could be auctioned as a background to anyone willing and able to buy or copy one. I find it hard to believe the Court intends to presage that result.
42
Turning to the question of the State's interest in the flag, it seems to me that the Court's treatment lacks all substance. The suggestion that the State's interest somehow diminishes when the flag is decorated with removable tape trivializes something which is not trivial. The State of Washington is hardly seeking to protect the flag's resale value, and yet the Court's emphasis on the lack of actual damage to the flag suggests that this is a significant aspect of the State's interest. Surely the Court does not mean to imply that appellant could be prosecuted if he subsequently tore the flag in the process of trying to take the tape off. Unlike flag-desecration statutes, which the Court correctly notes are not at issue in this case, the Washington statute challenged here seeks to prevent personal use of the flag, not simply particular forms of abuse. The State of Washington has chosen to set the flag apart for a special purpose, and has directed that it not be turned into a common background for an endless variety of superimposed messages. The physical condition of the flag itself is irrelevant to that purpose.
43
The true nature of the State's interest in this case is not only one of preserving 'the physical integrity of the flag,'3 but also one of preserving the flag as 'an important symbol of nationhood and unity.'4 Although the Court treats this important interest with a studied inattention, it is hardly one of recent invention and has previously been accorded considerable respect by this Court. In Halter, for example, the Court stated:
44
'As the statute in question evidently had its origin in a purpose to cultivate a feeling of patriotism among the people of Nebraska, we are unwilling to adjudge that in legislation for that purpose the state erred in duty or has infringed the constitutional right of anyone. On the contrary, it may reasonably be affirmed that a duty rests upon each state in every legal way to encourage its people to love the Union with which the state is indissolubly connected.' 205 U.S., at 43, 27 S.Ct., at 422.
45
There was no question in Halter of physical impairment of a flag since no actual flag was even involved. And it certainly would have made no difference to the Court's discussion of the State's interest if the plaintiff in error in that case had chosen to advertise his product by decorating the flag with beer bottles fashioned from some removable substance.5 It is the character, not the cloth, of the flag which the State seeks to protect.
46
The value of this interest has been emphasized in recent as well as distant times. Mr. Justice Fortas, for example, noted in Street v. New York, 394 u.S. 576, 616, 89 S.Ct. 1354, 1378, 22 L.Ed.2d 572 (1969), that 'the flag is a special kind of personalty,' a form of property 'burdened with peculiar obligations and restrictions.' Id., at 617, 89 S.Ct., at 1378 (dissenting opinion).6 Mr. Justice White has observed that '(t)he flag is a national property, and the Nation may regulate those who would make, imitate, sell, possess, or use it.' Smith v. Goguen, 415 U.S., at 587, 94 S.Ct., at 1254 (concurring in judgment). I agree. What appellant here seeks is simply license to use the flag however he pleases, so long as the activity can be tied to a concept of speech, regardless of any state interest in having the flag used only for more limited purposes. I find no reasoning in the Court's opinion which convinces me that the Constitution requires such license to be given.
47
The fact that the State has a valid interest in preserving the character of the flag does not mean, of course, that it can employ all conceivable means to enforce it. It certainly could not require all citizens to own the flag or compel citizens to salute one. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). It presumably cannot punish criticism of the flag, or the principles for which it stands, any more than it could punish criticism of this country's policies or ideas. But the statute in this case demands no such allegiance. Its operation does not depend upon whether the flag is used for communicative or noncommunicative purposes; upon whether a particular message is deemed commercial or political; upon whether the use of the flag is respectful or contemptuous; or upon whether any particular segment of the State's citizenry might applaud or oppose the intended message.7 It simply withdraws a unique national symbol from the roster of materials that may be used as a background for communications. Since I do not believe the Constitution prohibits Washington from making that decision, I dissent.
1
This statute provides in part:
'No person shall knowingly cast contempt upon any flag, standard, color, ensign or shield . . . by publicly mutilating, defacing, defiling, burning, or trampling upon said flag, standard, color, ensign or shield.'
2
Washington Rev.Code § 9.86.010 defines the flags and other symbols protected by the desecration and improper-use statutes as follows: 'The words flag, standard, color, ensign or shield, as used in this chapter, shall include any flag, standard, color, ensign or shield, or copy, picture or representation thereof, made of any substance or represented or produced thereon, and of any size, evidently purporting to be such flag, standard, color, ensign or shield of the United States or of this state, or a copy, picture or representation thereof.'
3
Brief for Appellee 3; 81 Wash.2d, at 799, 800, 506 P.2d, at 300, 301.
4
81 Wash.2d, at 799, 506 P.2d, at 300. A subsidiary ground relied on by the Washington Supreme Court must be rejected summarily. It found the inhibition on appellant's freedom of expression 'minuscule and trifling' because there are 'thousands of other means available to (him) for the dissemination of his personal views . . ..' Id., at 799, 800, 506 P.2d, at 300, 301. As the Court noted in e.g., Schneider v. State of New Jersey, 308 U.S. 147, 163, 60 S.Ct. 146, 151, 84 L.Ed. 155 (1939), 'one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.'
5
Brief for Appellee 6; Tr. of Oral Arg. 31—32.
6
Counsel for the State conceded that promoting respect for the flag in not a legitimate state interest. Tr. of Oral Arg. 30.
7
Undoubtedly such a concern underlies that portion of the improper-use statute forbidding the utilization of representations of the flag in a commercial context. Indeed, the third subparagraph of the improper-use statute, Wash.Rev.Code § 9.86.020(3), which is not at issue here, is aimed directly at commercial exploitation of our national symbol. There is no occasion in this case to address the application of the challenged statute to commercial behavior. Cf. Halter v. Nebraska, 205 U.S. 34, 27 S.Ct. 419, 51 L.Ed. 696 (1907). Mr. Justice REHNQUIST's dissent places major reliance on Halter, see post, at 418—420, despite the fact that Halter was decided nearly 20 years before the Court concluded that the First Amendment applies to the States by virtue of the Fourteenth Amendment. See Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925).
8
If this interest is valid, we note that it is directly related to expression in the context of activity like that undertaken by appellant. For that reason and because no other governmental interest unrelated to expression has been advanced or can be supported on this record, the four-step analysis of United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968), is inapplicable.
9
Because we agree with appellant's as-applied argument, we do not reach the more comprehensive overbreadth contention he also advances. But it is worth noting the nearly limitless sweep of the Washington improper-use flag statute. Read literally, it forbids a veteran's group from attaching, e.g., battalion commendations to a United States flag. It proscribes photographs of war heroes standing in front of the flag. It outlaws newspaper mastheads composed of the national flag with superimposed print. Other examples could easily be listed.
Statutes of such sweep suggest problems of selective enforcement. We are, however, unable to agree with appellant's void-for-vagueness argument. The statute's application is quite mechanical, particularly when implemented with jury instructions like the ones given in this case. The law in Washington, simply put, is that nothing may be affixed to or superimposed on a United States flag or a representation thereof. Thus, if selective enforcement has occurred, it has been a result of prosecutorial discretion, not the language of the statute. Accordingly, this case is unlike Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974), where the words of the statute at issue ('publicly . . . treats contemptuously') were themselves sufficiently indefinite to prompt subjective treatment by prosecutorial authorities.
10
Appellant's activity occurred at a time of national turmoil over the introduction of United States forces into Cambodia and the deaths at Kent State University. It is difficult now, more than four years later, to recall vividly the depth of emotion that pervaded most colleges and universities at the time, and that was widely shared by young Americans everywhere. A spontaneous outpouring of feeling resulted in widespread action, not all of it rational when viewed in retrospect. This included the closing down of some schools, as well as other disruptions of many centers of education. It was against this highly inflamed background that appellant chose to express his own views in a manner that can fairly be described as gentle and restrained as compared to the actions undertaken by a number of his peers.
11
The similarity of our holding to that of the Iowa Supreme Court in State v. Kool, 212 N.W.2d 518 (1973), merits note. In that case, the defendant displayed a replica of the United States flag upside down in his window, superimposing a peace symbol to create an effect identical to that achieved by Spence. Recognizing the communicative character of the defendant's activity, the Iowa Supreme Court reversed his conviction for flag misuse and held the statute unconstitutional as applied. The court eschewed an overbreadth analysis, and it rejected a number of the state interests we have found unavailing in the instant case.
1
The Court states in a footnote: 'There is no occasion in this case to address the application of the challenged statute to commercial behavior. Cf. Halter v. Nebraska, 205 U.S. 34, 27 S.Ct. 419, 51 L.Ed. 696 (1907).' Ante, at 413 n. 7.
2
The plurality opinion of Mr. Justice Blackmun took the position that a ban against political advertising on publicly owned buses was not unconstitutional since '(n)o First Amendment forum is here to be found.' Mr. Justice Douglas, concurring in the judgment, stated that petition in that case had no 'constitutional right to spread his message before this captive audience,' but specifically noted:
'I do not view the content of the message as relevant either to petitioner's right to express it or to the commuters' right to be free from it. Commercial advertisements may be as offensive and intrusive to captive audiences as any political message.' Mr. Justice Brennan, with whom Mr. Justice Stewart, Mr. Justice Marshall, and Mr. Justice Powell joined, dissenting, stated: 'There is some doubt concerning whether the 'commercial speech' distinction announced in Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942), retains continuing validity,' referring to Mr. Justice Douglas' concurring opinion in Cammarano v. United States, 358 U.S. 498, 514, 79 S.Ct. 524, 534, 3 L.Ed.2d 462 (1959). The dissent further stated: 'Once a public forum for communication has been established, both free speech and equal protection principles prohibit discrimination based solely upon subject matter or content.' (Emphasis in original.)
3
Smith v. Goguen, 415 U.S. 566, 591, 94 S.Ct. 1242, 1256, 39 L.Ed.2d 605 (1974) (Blackmun, J., dissenting).
4
Id., at 587, 94 S.Ct., at 1254 (White, J., concurring in judgment).
5
It should be noted that Halter makes no mention of the argument that allowing use of the flag for a personal or commercial purpose might suggest endorsement of that purpose by the government. While this might be an additional state interest in appropriate cases, it is by no means an indispensable element of the State's concern about the integrity of the flag.
6
The majority of the Court in Street stated: 'We add that disrespect for our flag is to be deplored no loss in these vexed times than in calmer periods of our history,' 394 U.S., at 594, 89 S.Ct., at 1367, citing Halter.
7
It is quite apparent that the Court does have considerable sympathy for at least the form of appellant's message, describing his use of the flag as 'a pointed expression of anguish,' ante, at 410, and commenting that 'appellant chose to express his own views in a manner that can fairly be described as gentle and restrained as compared to the actions undertaken by a number of his peers.' Ante, at 415, n. 10. One would hope that this last observation does not introduce a doctrine of 'comparative' expression, which gives more leeway to certain forms of expression when more destructive methods of expression are being employed by others.
| 23
|
418 U.S. 264
94 S.Ct. 2770
41 L.Ed.2d 745
OLD DOMINION BRANCH NO. 496, NATIONAL ASSOCIATION OF LETTER CARRIERS, AFL-CIO, et al., Appellants,v.Henry M. AUSTIN et al.
No. 72—1180.
Argued Nov. 14, 1973.
Decided June 25, 1974.
Syllabus
As part of its ongoing efforts to organize the remainder of letter carriers, appellant union, the carriers' collective-bargaining representative in Richmond, Virginia, published a 'List of Scabs' in its newsletter, including the names of appellees, together with a pejorative definition of 'scab' using words like 'traitor.' Appellees brought libel actions. Though recognizing that the case involved the publications of a labor union that were relevant to the union's organizational campaign, the trial court overruled appellants' motions to dismiss based on the ground that the publication had First Amendment and federal labor law protection. The court interpreted Linn v. Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 to permit application of state libel laws as long as the challenged statements were made with 'actual malice,' defined as being 'actuated by some sinister or corrupt motive such as hatred, personal spite, ill will, or desire to injure the plaintiff . . . or . . . with such gross indifference and recklessness as to amount to a wanton or wilful disregard of the rights of the plaintiff.' The jury awarded appellees damages, and the State Supreme Court affirmed. Held:
1. Although Linn v. Plant Guard Workers, supra, held that federal labor law does not completely pre-empt the application of state laws to libels published during labor disputes, that decision recognized that federal law does pre-empt state law to the extent that the State seeks to make actionable defamatory statements in labor disputes published without knowledge of their falsity or reckless disregard of the truth. Pp. 270—273.
2. Federal labor laws favor uninhibited, robust, and wide-open debate in labor disputes. Pp. 273—279.
(a) The relevant law here is Executive Order No. 11491, governing labor relations in federal employment. The basic provisions of the Executive Order are like those of the National Labor Relations Act, and similarly afford wide latitude for union freedom of speech. The partial pre-emption of Linn is thus equally applicable here. Pp. 273—279.
(b) The free speech protections afforded union organizing efforts extend to post-recognition organizing activity to the same degree as to pre-recognition activity. P. 279.
3. The trial court's instruction defining malice in common-law terms was erroneous and reflected a misunderstanding of Linn, which adopted the reckless-or-knowing-falsehood test of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686. Pp. 280—282.
4. The state libel award arising out of the publication of the union news-letter here did not comport with the protection for freedom of speech in labor disputes recognized in Linn. The use of the epithet 'scab,' which was literally and factually true and is common parlance in labor disputes, was protected under federal law. Publication of the pejorative definition was likewise not actionable, since the use of words like 'traitor' cannot be construed as representations of fact and their use in a figurative sense to manifest the union's strong disagreement with the views of workers opposing unionization is also protected by federal law. Cf. Greenbelt Cooperative Publishing Assn. v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6. Pp. 282—287.
213 Va. 377, 192 S.E.2d 737, reversed.
Mozart G. Ratner, Washington, D.C., for appellants.
Stephen M. Kapral and Parker E. Cherry, Richmond, Va., for appellees.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
This case involves three state libel judgments imposing liability of $165,000 on a labor union as a result of statements made in a union newsletter during a continuing organizational drive. The question presented is whether these libel judgments can be squared with the freedom of speech in labor disputes guaranteed under federal law.
2
* Appellant Old Dominion Branch No. 496 is a local union affiliated with the appellant National Association of Letter Carriers, AFL-CIO. At all times relevant to this case, the Branch was recognized by postal authorities as the exclusive local collective-bargaining representative of letter carriers in the Richmond, Virginia, area in accordance with § 10 of Executive Order No. 11491,1 governing labor-management relations in the Executive Branch of the Federal Government. Appellees, Henry M. Austin, L. D. Brown, and Roy P. Ziegengeist, were letter carriers in Richmond who neither were members of the Union nor paid any dues or fees to the Union.2
3
Although it had already been selected as bargaining representative by a majority of the postal workers in the unit, the Branch in the spring of 1970 was engaged in an ongoing effort to organize the remainder of the letter carriers. As part of this campaign, the Branch periodically published in its monthly newsletter, the Carrier's Corner, a list of those who had not yet joined the Union, under the heading 'List of Scabs.' After his name twice appeared in the 'List of Scabs,' appellee Austin complained to the Richmond Postmaster and the President of the Branch that the Union was trying to coerce him into joining. Austin said that he did not know what a scab was, but that he was going to sue the Union if he was called a scab again.
4
Several weeks later, the June issue of the Carrier's Corner was distributed to Branch members. Once again the newsletter contained a 'List of Scabs,' including the names of the three appellees, as well as 12 others. Just above the list of names, the newsletter noted that '(s)ome co-workers are in a quandary as to what a scab is' and said 'we submit the following.' There followed a well-known piece of trade union literature, generally attributed to author Jack London, which purported to supply a definition:
5
'The Scab
6
'After God had finished the rattlesnake, the toad, and the vampire, He had some awful substance left with which he made a scab.
7
'A scab is a two-legged animal with a corkscrew soul, a water brain, a combination backbone of jelly and glue. Where others have hearts, he carries a tumor of rotten principles.
8
'When a scab comes down the street, men turn their backs and Angels weep in Heaven, and the Devil shuts the gates of hell to keep him out.
9
'No man (or woman) has a right to scab so long as there is a pool of water to drown his carcass in, or a rope long enough to hang his body with. Judas was a gentleman compared with a scab. For betraying his Master, he had character enough to hang himself. A scab has not.
10
'Esau sold his birthright for a mess of pottage. Judas sold his Savior for thirty pieces of silver. Benedict Arnold sold his country for a promise of a commission in the British Army. The scab sells his birthright, country, his wife, his children and his fellowmen for an unfulfilled promise from his employer.
11
'Esau was a traitor to himself; Judas was a traitor to his God; Benedict Arnold was a traitor to his country; a SCAB is a traitor to his God, his country, his family and his class.'
App. 8—9. (Emphasis supplied.)
12
Appellees filed these defamation actions against the Branch and the National Association shortly after the June newsletter was published.3 Appellants sought dismissal of the actions on the ground that the publication was protected speech under the First Amendment and under federal labor law. The trial judge recognized that this case involved the 'publications of a labor union which (were) relevant to and in the course of a campaign to organize federal employees.' App. 20. Nevertheless, he overruled the demurrers, interpreting this Court's decision in Linn v. Plant Guard Workers Local 114, 383 U.S. 53, 83 S.Ct. 657, 15 L.Ed.2d 582 (1966), to permit application of state libel laws in such circumstances as long as the statements were made with 'actual malice.' The judge defined 'actual malice' in his instructions to the jury as follows:
13
'The term 'actual malice' is that conduct which shows in fact that at the time the words were printed they were actuated by some sinister or corrupt motive such as hatred, personal spite, ill will, or desire to injure the plaintiff; or that the communication was made with such gross indifference and recklessness as to amount to a wanton or wilful disregard of the rights of the plaintiff.' App. 93.
14
The jury returned a verdict awarding each of the appellees $10,000 in compensatory damages and $45,000 in punitive damages.4
15
The Supreme Court of Virginia affirmed. 213 Va. 377, 192 S.E.2d 737 (1972). In view of appellants' substantial claims that their statements in the newsletter were protected expression under the First Amendment and federal labor law, and that the state courts had erred in interpreting the pre-emptive effect of Linn, we noted probable jurisdiction and set this case for oral argument with Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789, 412 U.S. 917, 93 S.Ct. 2731, 37 L.Ed.2d 143 (1973). We reverse.
II
16
As noted, this case calls upon us to determine the extent to which state libel laws may be applied to penalize statements made in the course of labor disputes without undermining the freedom of speech which has long been a basic tenet of federal labor policy. We do not approach this problem, however, with a clean slate. The Court has already performed the difficult task of reconciling the competing state and federal interests involved in this area, and established the framework for our analysis here, in Linn v. Plant Guard Workers, supra.
17
In Linn, an assistant general manager of Pinkerton's Detective Agency brought suit under state libel laws against the Plant Guard Workers in a diversity action in federal court. Linn alleged that statements made in a union leaflet during a campaign to organize the company's employees, which charged him with 'lying' to the employees and 'robbing' them of pay increases, were false and defamatory. The District Court dismissed the complaint on the ground that the National Labor Relations Board had exclusive jurisdiction over the subject matter of the complaint, finding that the union's conduct would arguably be an unfair labor practice under § 8(b) of the National Labor Relations Act, as amended, 29 U.S.C. § 158(b), and that the Court's decision in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), therefore compelled dismissal on pre-emption grounds. The Court of Appeals affirmed.
18
A bare majority of this Court disagreed, however, and held that the NLRA did not completely pre-empt the application of state laws to libels published during labor disputes. The Court found that the exercise of state jurisdiction over such defamation actions would be a 'merely peripheral concern' of the federal labor laws, within the meaning of Garmon, as long as appropriate substantive limitations were imposed to insure that the freedom of speech guaranteed by federal law was protected. Further, the Court recognized an "overriding state interest' in protecting (state) residents from malicious libels.' 383 U.S., at 61, 86 S.Ct., at 662. Mr. Justice Clark, writing the opinion for the Court, also pointed out that application of state law to libels occurring during labor disputes would not significantly interfere with the NLRB's role in considering arguable contemporaneous violations of the Act. As he observed, the Board has different substantive interests from state libel law, being concerned with the coercive or misleading nature of the statements, rather than their defamatory quality. And the NLRA and state laws provide quite different remedies: only state law can provide damages to compensate the libel victim; only the NLRB can order a new representation election if the libel is found to have substantially affected the outcome of an election.
19
On the other hand, the Court recognized the danger that unrestricted libel actions under state law could easily interfere with federal labor policy. The Court observed:
20
'Labor disputes are ordinarily heated affairs; the language that is commonplace there might well be deemed actionable per se in some state jurisdictions. Indeed, representation campaigns are frequently characterized by bitter and extreme charges, countercharges, unfounded rumors, vituperations, personal accusations, misrepresentations and distortions. Both labor and management often speak bluntly and recklessly, embellishing their respective positions with imprecatory language.' 383 U.S., at 58, 86 S.Ct., at 660.
21
This freewheeling use of the written and spoken word, we found, has been expressly fostered by Congress and approved by the NLRB. Thus, Mr. Justice Clark acknowledged that there was 'a congressional intent to encourage free debate on issues dividing labor and management,' id., at 62, 86 S.Ct., at 663, and noted that 'the Board has given frequent consideration to the type of statements circulated during labor controversies, and . . . it has allowed wide latitude to the competing parties.' Id., at 60, 86 S.Ct., at 662.
22
The Court therefore found it necessary to impose substantive restrictions on the state libel laws to be applied to defamatory statements in labor disputes in order to prevent 'unwarranted intrusion upon free discussion envisioned by the Act.' Id., at 65, 86 S.Ct., at 664. The Court looked to the NLRB's decisions, and found that 'although the Board tolerates intemperate, abusive and inaccurate statements made by the union during attempts to organize employees, it does not interpret the Act as giving either party license to injure the other intentionally by circulating defamatory or insulting material known to be false.' Id., at 61, 86 S.Ct., at 662. The Court therefore found it appropriate to adopt by analogy the standards of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Accordingly, we held that libel actions under state law were pre-empted by the federal labor laws to the extent that the State sought to make actionable defamatory statements in labor disputes which were published without knowledge of their falsity or reckless disregard for the truth.
III
23
In this case, of course, the relevant federal law is Executive Order No. 11491 rather than the NLRA. Nevertheless, we think that the same federal policies favoring uninhibited, robust, and wide-open debate in labor disputes are applicable here, and that the same accommodation of conflicting federal and state interests necessarily follows.5
24
The basic provisions of the Executive Order establish a labor-management relations system for federal employment which is remarkably similar to the scheme of the National Labor Relations Act.6 Although several significant adjustments have been made to reflect the different structure and responsibilities of the governmental employer,7 it is apparent that the Order adopted in large part the provisions and policies of the NLRA as its model.8 Indeed, one of the primary purposes of the Executive Order was to 'substantially strengthen the Federal labor relations system by bringing it more into line with practices in the private sector of the economy.' 5 Presidential Documents 1508 (Oct. 29, 1969) (announcement of the signing of Exec. Order No. 11491). Accordingly, while decisions under the NLRA may not be binding precedent under the Executive Order, the Assistant Secretary of Labor charged with administration of the Order has held that his decisions will 'take into account the experience gained in the private sector under the Labor-Management Relations Act.' Charleston Naval Shipyard Case Nos. 40—1940 (CA), 40—1950 (CA), A/SLMR No. 1, p. 3 (Nov. 3, 1970).
25
In light of this basic purpose, we see nothing in the Executive Order which indicates that it intended to restrict in any way the robust debate which has been protected under the NLRA. Such evidence as is available, rather, demonstrates that the same tolerance for union speech which has long characterized our labor relations in the private sector has been carried over under the Executive Order. For example, one of the Regional Administrators under the Executive Order program has stated, in the context of union organizing campaigns:
26
'It is a cliche by now but, nonetheless, an embedded policy in labor relations that electioneering or campaigning has a broad tolerance. We do not encourage, nor do we prohibit, the exaggeration, the dissemination of half-truth or accusation. In sum, we leave it to the employee to decide.'9
27
And the Assistant Secretary has held that agency censorship of union materials, even if only to delete 'slanderous' or 'inflammatory' material, is unlawful interference with employee rights protected under the Order and an unfair labor practice under § 19(a)(1). Los Angeles Air Route Traffic Control Center, Case No. 72—CA—3014(26), A/SLMR No. 283, App. 4 (June 30, 1973) (summarized in BNA Govt.Empl.Rel.Rep.No. 514, July 30, 1973, p. A 10).
28
We recognize that the Executive Order does not contain any provision corresponding to § 8(c) of the NLRA,10 relied on in part by the Court in Linn. But the Court recognized that this section was primarily intended 'to prevent the Board from attributing anti-union motive to an employer on the basis of his past statements.' 383 U.S., at 62—63, n. 5, 86 S.Ct., at 663 (emphasis added). A provision corresponding to § 8(c) was apparently thought unnecessary in the Executive Order because it directs the Government, as employer, to adopt a position of neutrality concerning unionization of its employees.11 'Government officials do not mount 'vote no' campaigns.' Hampton, Federal Labor-Management Relations: A Program in Evolution, 21 Cath.U.L.Rev. 493, 502 (1972).
29
The primary source of protection for union freedom of speech under the NLRA, however, particularly in an organizational context, is the guarantee in § 7 of the Act of the employees' rights 'to form, join, or assist labor organizations.'12
30
'Basic to the right guaranteed to employees in § 7 to form, join or assist labor organizations, is the right to engage in concerted activities to persuade other employees to join for their mutual aid and protection. Indeed, even before the Norris-LaGuardia Act, 47 Stat. 70 and the Wagner Act, 49 Stat. 449 this Court recognized a right in unions to 'use all lawful propaganda to enlarge their membership." NLRB v. Drivers Local 639, 362 U.S. 274, 279, 80 S.Ct. 706, 709, 4 L.Ed.2d 710 (1960) (citations omitted).
31
Vigorous exercise of this right 'to persuade other employees to join' must not be stifled by the threat of liability for the overenthusiastic use of rhetoric or the innocent mistake of fact. Thus, the Board has concluded that statements of fact or opinion relevant to a union organizing campaign are protected by § 7, even if they are defamatory and prove to be erroneous, unless made with knowledge of their falsity. See, e.g., Atlantic Towing Co., 75 N.L.R.B. 1169, 1171—1173 (1948). The Court in Linn recognized the importance of this § 7 protection, in words quite pertinent to this case:
32
'Likewise, in a number of cases, the Board has concluded that epithets such as 'scab,' 'unfair,' and 'liar' are commonplace in these struggles and not so indefensible as to remove them from the protection of § 7, even though the statements are erroneous and defame one of the parties to the dispute.' 383 U.S., at 60—61, 86 S.Ct., at 662.
33
These considerations are equally applicable under the Executive Order. Section 1 of the Order guarantees federal employees these same rights.13
34
Section 7 of the NLRA and § 1 of the Executive Order also dispose of appellees' suggestion that no 'labor dispute' within the meaning of Linn is presented on the facts of this case. It is true, as appellees point out, that there was no dispute between labor and management involved here, and that the union's organizing efforts were neither during the course of a representation election campaign nor directed toward achieving recognition. But whether Linn's partial pre-emption of state libel remedies is applicable obviously cannot depend on some abstract notion of what constitutes a 'labor dispute'; rather, application of Linn must turn on whether the defamatory publication is made in a context where the policies of the federal labor laws leading to protection for freedom of speech are significantly implicated.
35
As noted, one of the primary reasons for the law's protection of union speech is to insure that union organizers are free to try peacefully to persuade other employees to join the union without inhibition or restraint. Accordingly, we think that any publication made during the course of union organizing efforts, which is arguably relevant to that organizational activity, is entitled to the protection of Linn. We see no reason to limit this protection to statements made during representation election campaigns. The protection of § 7 and § 1 is much broader. Indeed, Linn itself involved union organizing activity outside the election campaign context. We similarly reject any distinction between union organizing efforts leading to recognition and post-recognition organizing activity. Unions have a legitimate and substantial interest in continuing organizational efforts after recognition. Whether the goal is merely to strengthen or preserve the union's majority, or is to achieve 100% employee membership—a particularly substantial union concern where union security agreements are not permitted, as they are not here, see n. 2, supra—these organizing efforts are equally entitled to the protection of § 7 and § 1.14
IV
36
The courts below did not question the applicability of Linn to this case. Instead, both courts believed that Linn required only that the jury be instructed that it must find the defamatory statements to have been made with malice before it could impose liability. And both courts thought that instructions which defined malice in the common-law sense—as 'hatred, personal spite, ill will, or desire to injure'—were adequate under Linn.
37
This reflects a fundamental misunderstanding of the Court's holding in Linn. The Linn Court explicitly adopted the standards of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and the heart of the New York Times test is the requirement that recovery can be permitted only if the defamatory publication was made 'with knowledge that it was false or with reckless disregard of whether it was false or not.' Id., at 280, 84 S.Ct., at 726. The adoption in Linn of the reckless-or-knowing falsehood test was reiterated time and again in the Court's opinion. See 383 U.S., at 61, 63, 65, 86 S.Ct., at 662, 663, 664.
38
Of course, the Court also said that recovery would be permitted if the defamatory statements were shown to have been made with malice. But the Court was obviously using 'malice' in the special sense it was used in New York Times—as a shorthand expression of the 'knowledge of falsity or reckless disregard of the truth' standard. See New York Times Co. v. Sullivan, supra, 376 U.S., at 279—280, 84 S.Ct., at 726. Instructions which permit a jury to impose liability on the basis of the defendant's hatred, spite, ill will, or desire to injure are 'clearly impermissible.' Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 82, 88 S.Ct. 197, 198, 19 L.Ed.2d 248 (1967). '(I)ll will toward the plaintiff, or bad motives, are not elements of the New York Times standard.' Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 52 n. 18, 91 S.Ct. 1811, 1824, 29 L.Ed.2d 296 (1971) (opinion of Brennan, J.). Accord, Garrison v. Louisiana, 379 U.S. 64, 73—74, 77—79, 85 S.Ct. 209, 215 216, 217—218, 13 L.Ed.2d 125 (1964); Henry v. Collins, 380 U.S. 356, 85 S.Ct. 992, 13 L.Ed.2d 892 (1965); Rosenblatt v. Baer, 383 U.S. 75, 84, 86 S.Ct. 669, 675, 15 L.Ed.2d 597 (1966); Greenbelt Cooperative Publishing Assn. v. Bresler, 398 U.S. 6, 9—11, 90 S.Ct. 1537, 1539—1540, 26 L.Ed.2d 6 (1970). It is therefore clear that the libel judgments in this case must be reversed because of the court's erroneous instructions.
39
This, however, cannot be the end of our inquiry. The Court has often recognized that in cases involving free expression we have the obligation, not only to formulate principles capable of general application, but also to review the facts to insure that the speech involved is not protected under federal law. New York Times Co. v. Sullivan, supra, 376 U.S., at 284—285, 84 S.Ct., at 728—729; Pickering v. Board of Education, 391 U.S. 563, 574—575, 88 S.Ct. 1731, 1737—1738, 20 L.Ed.2d 811 (1968); Greenbelt Cooperative Publishing Assn. v. Bresler, supra, 398 U.S., at 11, 90 S.Ct., at 1540. 'We must 'make an independent examination of the whole record,' Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 683, 9 L.Ed.2d 697, so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression.' New York Times Co. v. Sullivan, supra, 376 U.S., at 285, 84 S.Ct., at 729.
40
While this duty has been most often recognized in the context of claims that the expression involved was entitled to First Amendment protection, the same obligation exists in cases involving speech claimed to be protected under the federal labor laws. This obligation, derived from the supremacy of federal labor law over inconsistent state regulation, Hill v. Florida ex rel. Watson, 325 U.S. 538, 65 S.Ct. 1373, 89 L.Ed. 1782 (1945); Teamsters Local 24 v. Oliver, 358 U.S. 283, 295—296, 79 S.Ct. 297, 304—305, 3 L.Ed.2d 312 (1959), requires us to determine whether any state libel award arising out of the publication of the union newsletter involved here would be inconsistent with the protection for freedom of speech in labor disputes recognized in Linn.
41
It should be clear that the newsletter's use of the epithet 'scab' was protected under federal law and cannot be the basis of a state libel judgment. Rather than being a reckless or knowing falsehood, naming the appellees as scabs was literally and factually true. One of the generally accepted definitions of 'scab' is 'one who refuses to join a union,' Webster's Third New International Dictionary (unabridged ed. 1961), and it is undisputed that the appellees had in fact refused to join the Branch. To be sure, the word is most often used as an insult or epithet. But Linn recognized that federal law gives a union license to use intemperate, abusive, or insulting language without fear of restraint or penalty if it believes such rhetoric to be an effective means to make its point. Indeed, the Court observed that use of this particular epithet is common parlance in labor disputes and has specifically been held to be entitled to the protection of § 7 of the NLRA. 383 U.S., at 60—61, 86 S.Ct., at 661—662.
42
Appellees nonetheless argue that the publication here may be actionable under state law, basing their claiming on the newsletter's publication of Jack London's 'definition of a scab.' Appellees contend that this can be read to charge them with having 'rotten principles,' with lacking 'character,' and with being 'traitor(s)'; that these charges are untrue; and that appellants knew they were untrue. The Supreme Court of Virginia upheld the damages awards here on the basis of these charges. 213 Va., at 384, 192 S.E.2d, at 742.
43
We cannot agree. We believe that publication of Jack London's rhetoric is equally entitled to the protection of the federal labor laws.15 The sine qua non of recovery for defamation in a labor dispute under Linn is the existence of falsehood. Mr. Justice Clark put it quite bluntly: 'the most repulsive speech enjoys immunity provided it falls short of a deliberate or reckless untruth.' 383 U.S., at 63, 86 S.Ct., at 663. Before the test of reckless or knowing falsity can be met, there must be a false statement of fact. Gertz v. Robert Welch, Inc., 418 U.S., at 339—340, 94 S.Ct., at 3006 3007. But, in our view, the only factual statement in the disputed publication is the claim that appellees were scabs, that is, that they had refused to join the union.
44
The definition's use of words like 'traitor' cannot be construed as representations of fact. As the Court said long before Linn, in reversing a state court injunction of union picketing, 'to use loose language or undefined slogans that are part of the conventional give-and-take in our economic and political controversies—like 'unfair' or 'fascist'—is not to falsity facts.' Cafeteria Employees Local 302 v. Angelos, 320 U.S. 293, 295, 64 S.Ct. 126, 127, 88 L.Ed. 58 (1943). Such words were obviously used here in a loose, figurative sense to demonstrate the union's strong disagreement with the views of those workers who oppose unionization. Expression of such an opinion, even in the most pejorative terms, is protected under federal labor law. Here, too, 'there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.' Gertz v. Robert Welch, Inc., 418 U.S., at 339—340, 94 S.Ct., at 3007.
45
Appellees' claim is similar to that rejected by the Court recently in Greenbelt Cooperative Publishing Assn. v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970). There, petitioners had characterized the position of the respondent, a public figure, in certain negotiations as 'blackmail,' and he had recovered damages for libel on the theory that petitioners knew that he had committed no such criminal offense. The Court reversed, holding that this use of the word 'blackmail' could not be the basis of a libel judgment under the New York Times standard. Mr. Justice Stewart, writing for the Court, reasoned:
46
'It is simply impossible to believe that a reader who reached the word 'blackmail' in either article would not have understood exactly what was meant: it was Bresler's public and wholly legal negotiating proposals that were being criticized. No reader could have thought that either the speakers at the meetings or the newspaper articles reporting their words were charging Bresler with the commission of a criminal offense. On the contrary, even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered Bresler's negotiating position extremely unreasonable.' 398 U.S., at 14, 90 S.Ct., at 1542 (footnote omitted).
47
It is similarly impossible to believe that any reader of the Carrier's Corner would have understood the newsletter to be charging the appellees with committing the criminal offense of treason.16 As in Bresler, Jack London's 'definition of a scab' is merely rhetorical hyperbole, a lusty and imaginative expression of the contempt felt by union members towards those who refuse to join. The Court in Linn recognized that such exaggerated rhetoric was commonplace in labor disputes and protected by federal law. Indeed, we note that the NLRB has held that the use of this very 'definition of a scab' is permissible under federal law. Cambria Clay Products Co., 106 N.L.R.B. 267, 273 (1953), enforced in pertinent part, 215 F.2d 48 (CA6 1954). It has become a familiar piece of trade union literature; according to undisputed testimony in this case, it has been published countless times in union publications over the last 30 years or more. Permitting state libel judgments based on publication of this piece of literature would be plainly inconsistent with the union's justifiable reliance on the protection of federal law.
48
This is not to say that there might not be situations where the use of this writing or other similar rhetoric in a labor dispute could be actionable, particularly if some of its words were taken out of context and used in such a way as to convey a false representation of fact. See Greenbelt Cooperative Publishing Assn. v. Bresler, supra, 398 U.S., at 13, 90 S.Ct., at 1541. But in the context of this case, no such factual representation can reasonably be inferred, and the publication is protected under the federal labor laws.17 Accordingly, the judgments appealed from must be reversed.
49
Judgment reversed.
50
Mr. Justice DOUGLAS, concurring in the result.
51
As the Court states, this case calls upon us to determine the extent to which state libel laws may be used to penalize statements expressed in the course of a labor dispute. In this instance Virginia's libel laws were used to impose massive damages1 upon a labor union for publicly expressing, during the heat of an organizational drive, its highly pejorative but not too surprising opinion of 'scabs.' I agree that this expression is protected and that the judgments below cannot stand. Unlike the Court, however, I do not view the task of reconciling the competing state and federal interests in this area as a difficult one, nor do I view the federal interest as merely a matter of federal labor policy. I think that such expression is constitutionally protected and I cannot agree that there might be situations 'where the use of this writing or other similar rhetoric in a labor dispute could be actionable.'
52
I agree with the Court that federal labor policy, as manifested both in the NLRA and in Executive Order 11491, favors uninhibited, robust and wide open debate in labor disputes. I disagree with the Court, however on the reach of that policy. I think that the pre-emptive effect of federal labor regulation is such that States are prohibited from interfering with those federally regulated relations by arming disputants in labor controversies with an arsenal of defamation laws. See Linn v. Plant Guard Workers Local 114, 383 U.S. 53, 69, 86 S.Ct. 657, 666, 15 L.Ed.2d 582 (Fortas, J., dissenting). Though referring to this state of affairs as federal labor policy, I expressly reject any implication that the policy could be otherwise were Congress or the Executive to reassess the underlying considerations and attempt to reformulate the policy.
53
We said in Thornhill v. Alabama, 310 U.S. 88, 102, 60 S.Ct. 736, 744, 84 L.Ed. 1993, that, '(i)n the circumstances of our times the dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution.'2 Since I do not think that discussion is free in the constitutional sense when it subjects the speaker to the penalty of libel judgments, in my view the ability of Congress or the Executive to formulate any labor policy penalizing those who might 'say naughty things during labor disputes'3 is precisely nil. I believe the Framers did all the policymaking necessary in this area when they devised the constitutional framework which binds us all. As I stated in Gertz v. Robert Welch, Inc., supra, 418 U.S. 323, at 356—357, 94 S.Ct. 2997, at 3015, 41 L.Ed.2d 789, the First Amendment would prohibit Congress from passing any libel law4 and the limitation on labor policy formulation is but an example of that general restriction.
54
If the States were not limited to the same extent as the Federal Government in restraining discussion, the pre-emptive effect of federal labor regulations would be crucial. But I have always thought that the application of the First Amendment to the States through the Fourteenth5 leaves the States as constitutionally impotent as the Federal Government in enforcing such restrictions. This conclusion is compelled if freedom of speech is regarded, as I think it must, be as a privilege or immunity of United States citizenship within the meaning of that term in the Fourteenth Amendment rather than some ephemeral right protected against state intrusion only to the extent a majority of this Court might view as 'implicit in the concept of ordered liberty.'6 As I stated in my dissent to Gertz v. Robert Welch, Inc., 418 U.S., at 358—359, 94 S.Ct., at 3016:
55
'(T)he Court frequently has rested state free speech and free press decisions on the Fourteenth Amendment generally rather than on the Due Process Clause alone. The Fourteenth Amendment speaks not only of due process but also of 'privileges and immunities' of United States citizenship. I can conceive of no privilege or immunity with a higher claim to recognition against state abridgement than the freedoms of speech and of the press.'
56
Since labor disputes are "within that area of free discussion that is guaranteed by the Constitution" and since in my view the States and the Federal Government are equally bound to honor that guarantee, the fate of the libel award in this case is clear. 'Discussion is not free . . . within the meaning of our First Amendment, if that discussion may be penalized by judgments for damages in libel actions.' Linn v. Plant Guard Workers Local 114, 383 U.S., at 68, 86 S.Ct., at 666 (Black, J., dissenting). The extensive damages awarded in this case well illustrate that any protection short of a complete bar to suits for defamation will be cold comfort to those who enter the arena of free discussion in labor disputes. The imaginative vituperation which is commonplace in labor strife well exceeds the 'normal' levels of hyperbole to which most members of the community may be accustomed. A jury determination in a libel suit, no matter what the standard of recovery, is as likely to be influenced by community attitudes toward unionization and the often colorful individuals involved in its promotion as by any real appreciation for the damage perceived as inflicted by any alleged falsehood.
57
Since I do not believe that the judgments below are consistent with either federal labor policy or with constitutionally protected free speech, I concur in their reversal.
58
Mr. Justice POWELL, with whom THE CHIEF JUSTICE and Mr. Justice REHNQUIST join, dissenting.
59
Today the Court extends the rule of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), to encompass every defamatory statement made in a context that falls within the majority's expansive construction of the phrase 'labor dispute.' Because this decision appears to allow both unions and employers to defame individual workers with little or no risk of being held accountable for doing so, I dissent.
60
* Executive Order 11491 establishes for certain federal employees a legal system for labor-management relations essentially similar to that provided employees in the private sector by the National Labor Relations Act. (NLRA). The Court acknowledges that the two schemes are not identical but finds no persuasive reason to differentiate between them for the purpose of determining their pre-emptive impact on state libel law. With this much I agree.
61
The majority then concludes that the instant case is controlled by Linn v. Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966). In Linn the Court construed the NLRA to bar state libel judgments for defamatory statements made in a 'labor dispute' covered by the Act, unless those statements were made 'with knowledge of their falsity or with reckless disregard of whether they were true or false. . . .' Id., at 65, 86 S.Ct., at 664. Thus the Court adopted as a rule of labor law pre-emption the constitutional standard of media liability for defamation originally enunciated for libel actions by public officials in New York Times Co., supra, and subsequently extended to public figures in Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). In the instant case the majority relies on the analogy to the NLRA to support its conclusion that Executive Order 11491 pre-empts the libel judgments in favor of these appellees because liability was not premised on the knowing-or-reckless falsity standard that Linn held applicable to defamatory statements made in a 'labor dispute.' I perceive no reason in law or in public policy for such a sweeping extension of New York Times. Linn is distinguishable on its facts and in its rationale, and the New York Times rule of knowledge of falsity or reckless disregard for the truth is therefore inapplicable to the case at hand.
62
Linn involved a classic confrontation between union and management locked in combat during an organizational campaign. Linn was assistant general manager of Pinkerton's National Detective Agency, Inc. Pinkerton's employees were then the subject of an organizational campaign by the United Plant Guard Workers. In the course of that effort the union published a leaflet urging Pinkerton's employees to join the union and allegedly accusing Linn of 'lying' to the employees and 'robbing' them of pay increases. Linn sued the union for libel, but the trial court held that the National Labor Relations Board had exclusive jurisdiction over the subject matter of the dispute. It found that Linn's complaint charged the union with conduct arguably constituting an unfair labor practice under the NLRA and that San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), therefore required dismissal of the suit.
63
This Court disagreed with that reasoning. It recognized an "overriding state interest' in protecting (state) residents from malicious libels . . .,' 383 U.S., at 61, 86 S.Ct., at 662, and noted that federal labor law does not protect individuals against injury to reputation. Even where statements actionable as libel under state law would also constitute an unfair labor practice, the Board's interest would be limited to their coercive or misleading character, and the Board would be powerless to award damages or take any other step to redress the injury to the reputation of a defamed individual. The Court therefore held that the NLRA does not wholly pre-empt state libel law, even where the subject matter of the libel action might also constitute an unfair labor practice under the Act. Even in that circumstance, the States remain free to award damages for defamatory falsehoods published with knowledge of their falsity or in reckless disregard of the truth.
64
The result of Linn is a rule of partial pre-emption. The States may award libel judgments on the basis of the knowing-or-reckless-falsity formulation but are pre-empted from allowing defamation plaintiffs to recover under any less demanding standard of liability. The level of pre-emption is defined by New York Times Co. v. Sullivan. But the Linn rule of partial pre-emption has another dimension, one that distinguishes the case at hand. That is the scope of the rule—in other words, the range of circumstances in which state libel law is partially displaced by federal labor law. This is determined by the phrase 'labor dispute.'
65
In Linn the Court relied on the presence of a 'labor dispute' to justify partial preemption of state libel law, but it did not delineate the boundaries of that concept. Indeed, the Court had no occasion to do so, for, as we have seen, Linn involved a prototypical organizational campaign confrontation between labor and management. Given that factual setting, the Court found a potential conflict between federal labor law and state libel law. One side or the other could use defamation actions as an unauthorized weapon in the battle for the loyalty of unorganized employees and possibly undermined the federal policies favoring uninhibited debate between union and management. The instant dispute is so for removed from the factual setting in Linn that the considerations supporting partial preemption of state libel law in that case simply do not obtain here.
66
Appellant union had long been recognized by the postal authorities as the exclusive collective-bargaining representative for the letter carriers in the Richmond area. Of a maximum of 435 letter carriers in the unit, all save 15 were active union members. Thus the union was solidly entrenched, with approximately 96% of the letter carriers signed up. The three appellees were among those 15 employees who elected not to join the union. There is no evidence of concerted action by these 15 letter carriers; they were acting individually, motivated by principle or personal conviction or perhaps, as appellant union alleges, by a desire not to pay dues. In any event, the three appellees had worked as letter carriers for 14, 13, and 12 years, respectively, without any sort of trouble either with the postal authorities or with their fellow employees. In fact, there is no evidence that the appellees were involved in a dispute with anyone until the union officials became displeased with appellees' exercise of their admitted right not to join the union and began to subject them to public ridicule and vilification.
67
The majority characterizes the union's actions as part of an ongoing organizational campaign, ante, at 267, and treats this situation as a 'labor dispute' within the intendment of the Linn rule of partial pre-emption. But this is accurate only if federal labor law is sufficiently implicated to warrant pre-emption of state libel law whenever an employee declines an invitation to become a union member. Certainly, there was no dispute here between labor and management. There was also no conflict between competing labor organizations and no effort, either organized or otherwise, to encourage defection from appellant union. There was, in short, no dispute of any sort save the union's attempt to coerce appellees by scurrilous and defamatory statements to do what they had an admitted legal right not to do. Thus the union, by its own coercive conduct, created a 'dispute,' the presence of which, according to the majority, provides partial immunity from the consequences of its wrondoing under state law.
68
In my view this is an unnecessary and unwise extension of Linn. Here there was no confrontation between powerful forces of labor and management, no clash of opposing economic interests that might warrant the attention of federal regulatory authorities, and hence no prospect whatever that reliance on state libel law might subvert the federal scheme for the fair and peaceful resolution of labor disputes. Yet the majority nevertheless holds that the state libel judgments entered below are pre-empted by federal labor law. This conclusion seems to me a needless denigration of the 'overriding state interest' in compensating individuals for injury to reputation. Moreover, it leaves these appellees without effective remedy for the wrong done them. Far from representing a powerful economic interest that could fight for itself within the federally created system of individual self-government, these appellees were defenseless individuals.* In their 'dispute' with the union, appellees found themselves in that state of helpless inequality that first gave social meaning to the labor movement. And after today's decision, the individual employee's exposure to harm without effective remedy is not limited to defamation by a labor union, for presumably a corporate employer may also claim the knowing-or-reckless-falsity privilege as a bar to liability for defamatory statements concerning an employee's decision to join or remain in a union. I do not believe Linn can fairly be construed to warrant any such regressive result.
II
69
As an alternative basis for its decision, the Court concludes that appellees are prohibited from recovering because there was no libel, indeed no falsehood of any kind, in the union's publication. According to the majority, the only factual allegation contained in the article was that appellees were 'scabs,' as that term is used in the labor movement, and that naming the appellees as scabs was literally and factually true.' Ante, at 283. It is true, of course, that appellees were identified by name as 'scabs' in the union newsletter, but it is also true that the use of the word 'scab' was explicated by a long and vituperative article appearing immediately above appellees' names. The only fair way to read this article is to substitute each appellee's name for the word 'scab' whenever it appears. So construed, the plain meaning and import of this publication was that appellees lacked character, that they had 'rotten principles,' and that they were traitors to their God, their country, their families, and their friends. Appellants make no attempt to prove the truth of these accusations, contending instead that they were mere hyperbole involving no statement of fact. The majority accepts this argument, in my view erroneously.
70
It seems to me that the majority fails to distinguish between defamatory references to an anonymous group, class, or occupation, and a similar description of a named individual. It is one thing to say that lawyers are shysters and that doctors are quacks, but it is quite another matter—indeed, it is libelous per se—to publish that lawyer Jones is a shyster or that Dr. Smith is a quack. Here the union did not merely voice its opinion of 'scabs' generally; it identified these appellees by name and specifically impugned their character.
71
I would hold that federal law does not prohibit appellees from recovering from appellant union for injury to reputation. I would reverse and remand for a new trial in accord with our decision in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789.
1
34 Fed.Reg. 17605 (1969), 3 CFR 861 (1966—1970 Compilation), as amended, 3 CFR 254 (1974). The Executive Order was promulgated on October 29, 1969, and became effective on January 1, 1970. It remains in effect with respect to most employees in the Executive Branch today. Postal employees, however, are no longer covered by the Executive Order. The Postal Reorganization Act of 1970, 84 Stat. 719, convered the cabinet-level Post Office Department into the United States Postal Service, an 'independent establishment of the executive branch,' 39 U.S.C. § 201. As part of this reorganization, labor-management relations in the Postal Service were largely placed under the regulation of the National Labor Relations Act and the NLRB, effective July 1, 1971. See 39 U.S.C. §§ 1201—1209. While the Branch apparently remains the exclusive bargaining representative for letter carriers in Richmond under the Postal Reorganization Act, this case arose during the brief period when the Executive Order was controlling.
2
Section 12(c) of the Executive Order provides:
'(N)othing in the agreement (between an agency and a labor organization) shall require an employee to become or to remain a member of a labor organization, or to pay money to the organization . . ..'
The Postal Reorganization Act continues this prohibition of union security agreements, 39 U.S.C. § 1209(c). The NLRA, of course, permits certain union security agreements, § 8(a)(3), 61 Stat. 140, 29 U.S.C. § 158(a)(3), except insofar as they may violate state law, § 14(b), 29 U.S.C. § 164(b). See Retail Clerks Local 1625 v. Schermerhorn, 375 U.S. 96, 84 S.Ct. 219, 11 L.Ed.2d 179 (1963).
3
These actions are actually based on Virginia's 'insulting words' statute, Va.Code Ann. § 8—630 (1957), which provides:
'All words which from their usual construction and common acceptation are construed as insults and tend to violence and breach of the peace shall be actionable.'
However, the Virginia courts have held that '(a)n action for insulting words under Code, § 8—630 is treated precisely as an action for slander or libel, for words actionable per se' with one exception not relevant here. Carwile v. Richmond Newspapers, Inc., 196 Va. 1, 6, 82 S.E.2d 588, 591 (1954). See opinion below in 213 Va. 377, 381, 192 S.E.2d 737, 740 (1972).
4
At least one suit brought by one of the other 12 letter carriers whose names were listed in the June newsletter has been held in abeyance pending the outcome of this appeal. The potential damages liability growing out of this publication is thus greater even than the $165,000 which has already been awarded.
5
The Executive Order is plainly a reasonable exercise of the President's responsibility for the efficient operation of the Executive Branch. American Federation of Government Employees v. Hampton, 77 L.R.R.M. 2977 (DC), aff'd sub nom. Wolkomir v. Federal Labor Relations Council, 79 L.R.R.M. 2634 (CADC 1971), cert. denied, 405 U.S. 920, 92 S.Ct. 954, 30 L.Ed.2d 791 (1972); Manhattan-Bronx Postal Union v. Gronouski, 121 U.S.App.D.C. 321, 350 F.2d 451 (1965), cert. denied, 382 U.S. 978, 86 S.Ct. 548, 15 L.Ed.2d 469 (1966); cf. United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 555, 93 S.Ct. 2880, 2885, 37 L.Ed.2d 796 (1973). Moreover, the Executive Order finds express statutory authorization in 5 U.S.C. § 7301, which provides that '(t)he President may prescribe regulations for the conduct of employees in the executive branch.' In view of the substantial federal interests in effective management of the business of the National Government and exclusive control over the conduct of federal employees, and this congressional authorization, we have no difficulty concluding that the Executive Order is valid and may create rights protected against inconsistent state laws through the Supremacy Clause. See United States v. Pink, 315 U.S. 203, 230—232, 62 S.Ct. 552, 565—567, 86 L.Ed. 796 (1942); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635—637, 72 S.Ct. 863, 870—871, 96 L.Ed. 1153 (1952) (Jackson, J., concurring); Farkas v. Texas Instruments, Inc., 375 F.2d 629, 632 (CA5), cert. denied, 389 U.S. 977, 88 S.Ct. 480, 19 L.Ed.2d 471 (1967); Farmer v. Philadelphia Electric Co., 329 F.2d 3, 8 (CA3 1964).
6
Section 1 of the Order grants federal employees 'the right, freely and without fear of penalty or reprisal, to form, join, and assist a labor organization,' as well as 'to refrain from any such activity,' and provides that 'each employee shall be protected in the exercise of this right,' much as employees in the private sector are protected by § 7 of the NLRA. Sections 19(a) and 19(b) of the Order define unfair labor practices of agency management and unions, respectively, which are largely taken from the prohibitions of §§ 8(a) and 8(b) of the NLRA. And § 10 of the Executive Order establishes a system of exclusive recognition of labor organizations chosen by a majority of the employees in an appropriate unit through representation elections by secret ballot, as under § 9(c)(1) of the NLRA.
Primary responsibility for administration of this system is given to the Assistant Secretary of Labor for Labor-Management Relations, who largely performs the role of the NLRB in the private sector. Under § 6(a) of the Order, he is empowered to make determinations of appropriate collective-bargaining units, to supervise the conduct of representation elections, and to decide complaints alleging unfair labor practices. Upon a finding of a violation of the Order, § 6(b) empowers the Assistant Secretary to order Government agencies or unions to cease and desist from violations of the Order, and to take appropriate affirmative action. Appeals from decisions of the Assistant Secretary are heard by the Federal Labor Relations Council, established under § 4 of the Order, which is also given a significant policymaking function.
7
Most notable among the departures from the NLRA are the prohibition of strikes and picketing in § 19(b)(4) of the Executive Order and the limitation of subjects of bargaining in § 11(b). See generally Hampton, Federal Labor-Management Relations: A Program in Evolution, 21 Cath.U.L.Rev. 493 (1972).
8
See Naumoff, Ground Rules for Recognition under Executive Order 11491, 22 Lab.L.J. 100 (1970); cf. Hart, Government Labor's New Frontiers through Presidential Directive, 48 Va.L.Rev. 898, 904—905 (1962) (discussing Exec. Order No. 10988, predecessor of the present Order).
9
Naumoff, supra, n. 8, at 103. Compare the similar language of the Board in Stewart-Warner Corp., 102 N.L.R.B. 1153, 1158 (1953), quoted in Linn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53, 60, 86 S.Ct. 657, 661, 15 L.Ed.2d 582 (1966).
10
Section 8(c) provides:
'The expressing of any views, argument, or opinion, or the dissemination thereof, . . . shall not constitute or be evidence of an unfair labor practice . . . if such expression contains no threat of reprisal or force or promise of benefit.'
11
This policy of agency neutrality is derived from two parts of the Executive Order. The preamble of the Order recites that
'the well-being of employees and efficient administration of the Government are benefited by providing employees an opportunity to participate in the formulation and implementation of personnel policies and practices affecting the conditions of their employment.'
And § 1(a) directs the head of each agency to 'take the action required to assure that employees in the agency are apprised of their rights under this section and that no interference, restraint, coercion, or discrimination is practiced within his agency to encourage or discourage membership in a labor organization.'
See Hampton, supra, n. 7, at 501—502.
12
In other contexts, other provisions of the NLRA may be sources of protection for union freedom of speech. For example, one such source would be the system of representation elections by secret ballot established by § 9(c) (1) of the Act. Wide latitude for what is written and said in election campaigns is necessary to insure the free exchange of information and opinions, and thus to promote the informed choice by the employees needed to make the system work fairly and effectively. The same policy is applicable under the Executive Order, which establishes in § 10 a similar system of representation elections for federal employees.
13
Section 1 of the Executive Order does not grant federal employees the right, guaranteed by § 7 of the NLRA for employees in the private sector, 'to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.' The right to attempt to persuade others to join the union, however, is derived from the rights to form, join, and assist a union, as well as from the right to engage in concerted activities. The absence of mention of a right to engage in concerted activities is obviously no more than a reflection of the fact that the Order does not permit federal employee unions to engage in strikes or picketing. The prohibition of picketing and the lack of protection for concerted activities might be thought to indicate an intention in the Executive Order to regulate the location or form of employee speech to a somewhat greater extent than under the NLRA, but we do not perceive any intention to curtail in any way the content of union speech.
14
Appellees argue that, rather than being entitled to the protection of Linn, the union's organizing efforts here were unlawful
attempts to 'coerce' them into joining the union in violation of § 19(b)(1) of the Order. But we would expect § 19(b)(1) to be interpreted in light of the construction the Court has given the parallel provision of the NLRA, § 8(b)(1)(A). In NLRB v. Drivers Local 639, 362 U.S. 274, 80 S.Ct. 706, 4 L.Ed.2d 710 (1960), the Court held that § 8(b)(1)(A) was 'a grant of power to the Board limited to authority to proceed against union tactics involving violence, intimidation, and reprisal or threats thereof.' Id., at 290, 80 S.Ct., at 715. Mr. Justice Brennan emphasized that there was no intention to restrict the use by unions of methods of peaceful persuasion, quoting Senator Taft's remarks during the debate on the Taft-Hartley Act:
'It seems to me very clear that so long as a union-organizing drive is conducted by persuasion, by propaganda, so long as it has every legitimate purpose, the Board cannot in any way interfere with it. . . .
'The Board may say, 'You can persuade them; you can put up signs; you can conduct any form of propaganda you want to in order to persuade them, but you cannot, by threat of force or threat of economic reprisal, prevent them from exercising their right to work." Id., at 287—288, 80 S.Ct., at 714.
It is true that the Executive Order provides that a union may not 'interfere with' an employee in the exercise of his right to refrain from joining the union, as well as incorporating the wording of the NLRA making it unlawful to 'restrain' or 'coerce' an employee. The Court in Drivers Local 639 pointed out, however, that even the words 'interfere with,' which originally appeared in a draft of the Taft-Hartley Act, were intended to have a 'limited application' and to reach 'reprehensible practices' like violence and threats of loss of employment, but not methods of peaceful persuasion. Id., at 286, 80 S.Ct., at 713. It seems likely that the Executive Order was similarly not intended to limit union propaganda or prohibit any other method of peaceful persuasion.
In any event, appellees' contention is properly addressed to the Assistant Secretary in the first instance, through an unfair labor practice complaint, and not to this Court. Even if appellees should
ultimately prove to be correct, Linn is still applicable here, and state libel remedies are pre-empted unless appellees can show that the publication was knowingly false or made with reckless disregard for the truth.
15
In view of our conclusion that the publication here was protected under the federal labor laws, we have no occasion to consider the First Amendment arguments advanced by appellants.
16
On the contrary, it is apparent from the record that the basis for the libel action in this case was the use of the epithet 'scab' rather than the claimed charge of treason. It was the publication of the 'List of Scabs' which disturbed the appellees, and which moved appellee Austin to complain prior to the June publication at issue and to threaten to sue if he was called a scab again. Moreover, it appears that the only asserted damage to appellees followed from the publication of the fact that they were 'scabs.' Appellees testified only that their coworkers and others became hostile to them, referring to them as the 'scabs' the union was talking about, and that this made them tense and nervous and caused headaches. There is no evidence that anyone took literally the use of the word 'traitor' or that appellees were in any way concerned about or affected by this charge.
Nor can it be claimed that the jury's verdict is itself some indication that the charge of 'traitor' was construed as a defamatory representation of fact. There is certainly nothing in the trial court's instructions which would suggest that the newsletter's use of 'scab' was not the basis for the jury's verdict. The court did not instruct the jury that the use of 'scab' could not be the basis for imposing liability. The court did not even instruct the jury that a true statement of fact could not be the foundation for liability. Indeed, the trial court's instruction that 'insults' made with 'ill will' were sufficient to impose liability fairly invited the jury to base its verdict on the newsletter's use of 'scab.'
17
Since we find that any libel award on the basis of this publication would be inconsistent with the protection of federal law, we need not rule on appellants' alternative argument that the damages awarded here were excessive. We think it important again to point out, however, that 'in view of the propensity of juries to award excessive damages for defamation, the availability of libel actions may pose a threat to the stability of labor unions and smaller employers.' Linn, 383 U.S., at 64, 86 S.Ct., at 664. It is for this reason that the Court in Linn held that '(i)f the amount of damages awarded is excessive, it is the duty of the trial judge to require a remittitur or a new trial.' Id., at 65 66, 86 S.Ct., at 664 (emphasis added).
1
The judgments in this case awarded damages of $165,000 but the total figure might be larger since at least one other suit arising out of the same publication has been held in abeyance pending the outcome of this appeal.
2
The view has been expressed that the First Amendment should accord protection only to explicitly political speech. See Bork, Neutral Principles and Some First Amendment Problems, 47 Ind.L.J. 1, 20 (1971). Decisions such as Thornhill, however, reject any such emasculative reading of the First Amendment. As Mr. Justice Black has said: 'There is nothing in the language of the First Amendment to indicate that it protects only political speech, although to provide such protection was no doubt a strong reason for the Amendment's passage.' H. Black, A Constitutional Faith 46 (1969). The importance of free discussion in all areas was well perceived in this country before our constitutional scheme was formulated. In a letter sent to the inhabitants of Quebec in 1774, the Continental Congress spoke of 'five great rights,' stating in part: 'The last right we shall mention, regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government . . ..' 1 Journals of the Continental Congress 1774—1789 p. 108 (Ford ed. 1904) (emphasis added).
3
See Linn v. Plant Guard Workers Local 114, 383 U.S. 53, 67, 86 S.Ct. 657, 665, 15 L.Ed.2d 582 (Black, J., dissenting).
4
See also Rosenblatt v. Baer, 383 U.S. 75, 90, 86 S.Ct. 669, 678, 15 L.Ed.2d 597 (concurring). In explaining the constitutional history which led him to the same conclusion, Mr. Justice Black said of the Framers: 'They knew what history was behind them; they were familiar with the sad and useless tragedies of countless people who had had their tongues plucked out, their ears cut off or their hands chopped off, or even worse things done to them, because they dared to speak or write their opinions. They wanted to ordain in this country that the new central government should not tell the people what they should believe or say or publish.' H. Black, A Constitutional Faith, at 46 (1968).
5
See, e.g., Stromberg v. California, 283 U.S. 359, 368—369, 51 S.Ct. 532, 535—536, 75 L.Ed. 1117, cases compiled in Gertz v. Robert Welch, Inc., 418 U.S., at 359 n. 8, 94 S.Ct., at 3016 (Douglas, J., dissenting).
6
See Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288.
*
The publication was sent in the union's paper to all members and also was posted on the bulletin board. Appellees had no means to reply or defend their reputations.
| 23
|
418 U.S. 166
94 S.Ct. 2940
41 L.Ed.2d 678
UNITED STATES et al., Petitioners,v.William B. RICHARDSON.
No. 72—885.
Argued Oct. 10, 1973.
Decided June 25, 1974.
Syllabus
Respondent, as a federal taxpayer, brought this suit for the purpose of obtaining a declaration of unconstitutionality of the Central Intelligence Agency Act, which permits the CIA to account for its expenditures 'solely on the certificate of the Director . . ..' 50 U.S.C. § 403j(b). The complaint alleged that the Act violated Art. I, § 9, cl. 7, of the Constitution insofar as that clause requires a regular statement and account of public funds. The District Court's dismissal of the complaint for, inter alia, respondent's lack of standing under Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947, was reversed by the Court of Appeals. That court held that respondent had standing as a taxpayer on the ground that he satisfied Flast's requirements that the allegations (1) challenge an enactment under the Taxing and Spending Clause of Art. I, § 8, and show (2) a 'nexus' between the plaintiff's status and a specific constitutional limitation on the taxing and spending power. Held: Respondent lacks standing to maintain this suit. Pp. 171—180.
(a) Flast, which stressed the need for meeting the requirements of Art. III, did not 'undermine the salutary principle . . . established by Frothingham (v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078) . . . that a taxpayer may not 'employ a federal court as a forum in which to air his generalized grievances about the conduct of government or the allocation of power in the Federal System." Pp. 171—174.
(b) Respondent's challenge, not being addressed to the taxing or spending power but to the statutes regulating the CIA's accounting and reporting procedures, provides no 'logical nexus' between his status as 'taxpayer' and the asserted failure of Congress to require more detailed reports of expenditures of the CIA. Pp. 174—175.
(c) Respondent's claim that without detailed information on the CIA's expenditures he cannot properly follow legislative or executive action and thereby fulfill his obligations as a voter is a generalized grievance insufficient under Frothingham or Flast to show that 'he has sustained or is immediately in danger of sustaining a direct injury as the result' of such action. Ex parte Le vitt, 302 U.S. 633, 634, 58 S.Ct. 1, 82 L.Ed. 493. Pp. 176—178.
465 F.2d 844, reversed.
Sol. Gen. Robert H. Bork for petitioners.
Osmond K. Fraenkel, New York City, for respondent.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari in this case to determine whether the respondent has standing to bring an action as a federal taxpayer1 alleging that certain provisions concerning public reporting of expenditures under the Central Intelligence Agency Act of 1949, 63 Stat. 208, 50 U.S.C. § 403a et seq., violate Art. I, § 9, cl. 7, of the Constitution which provides:
2
'No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.'
3
Respondent brought this suit in the United States District Court on a complaint in which he recites attempts to obtain from the Government information concerning detailed expenditures of the Central Intelligence Agency. According to the complaint, respondent wrote to the Government Printing Office in 1967 and requested that he be provided with the documents 'published by the Government in compliance with Article I, section 9, clause (7) of the United States Constitution.' The Fiscal Service of the Bureau of Accounts of the Department of the Treasury replied, explaining that it published the document known as the Combined Statement of Receipts, Expenditures, and Balances of the United States Government. Several copies of the monthly and daily reports of the office were sent with the letter. Respondent then wrote to the same office and, quoting part of the CIA Act, asked whether this statute did not 'cast reflection upon the authenticity of the Treasury's Statement.' He also inquired as to how he could receive further information on the expenditures of the CIA. The Bureau of Accounts replied stating that it had no other available information.
4
In another letter, respondent asserted that the CIA Act was repugnant to the Constitution and requested that the Treasury Department seek an opinion of the Attorney General. The Department answered declining to seek such an opinion and this suit followed. Respondent's complaint asked the court to 'issue a permanent injunction enjoining the defendants from publishing their 'Combined Statement of Receipts, Expenditures and Balances of the United States Government' and representing it as the fulfillment of the mandates of Article I Section 9 Clause 7 until same fully complies with those mandates.'2 In essence, the respondent asked the federal court to declare unconstitutional that provision of the Central Intelligence Agency Act which permits the Agency to account for its expenditures 'solely on the certificate of the Director . . ..' 50 U.S.C. § 403j(b). The only injury alleged by respondent was that he 'cannot obtain a document that sets out the expenditures and receipts' of the CIA but on the contrary was 'asked to accept a fraudulent document.' The District Court granted a motion for dismissal on the ground respondent lacked standing under Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), and that the subject matter raised political questions not suited for judicial disposition.
5
The Court of Appeals sitting en banc, with three judges dissenting, reversed, 465 F.2d 844 (CA3 1972), holding that the respondent had standing to bring this action.3 The majority relied chiefly on Flast v. Cohen, supra, and its two-tier test that taxpayer standing rests on a showing of (a) a 'logical link' between the status as a taxpayer and the challenged legislative enactment, i.e., an attack on an enactment under the Taxing and Spending Clause of Art. I, § 8, of the Constitution; and (b) a 'nexus' between the plaintiff's status and a specific constitutional limitation imposed on the taxing and spending power. 392 U.S., at 102—103, 88 S.Ct., at 1953—1954. While noting that the respondent did not directly attack an appropriations act, as did the plaintiff in Flast, the Court of Appeals concluded that the CIA statute challenged by the respondent was 'integrally related,' 465 F.2d, at 853, to his ability to challenge the appropriations since he could not question an appropriation about which he had no knowledge. The Court of Appeals seemed to rest its holding on an assumption that this case was a prelude to a later case challenging, on the basis of information obtained in this suit, some particular appropriation for or expenditure of the CIA; respondent stated no such an intention in his complaint. The dissenters took a different approach urging denial of standing principally because, in their view, respondent alleged no specific injury but only a general interest common to all members of the public.
6
We conclude that respondent lacks standing to maintain a suit for the relief sought and we reverse.
7
* As far back as Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803), this Court held that judicial power may be exercised only in a case properly before it—a 'case or controversy' not suffering any of the limitations of the political-question doctrine, not then moot or calling for an advisory opinion. In Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), this limitation was described in terms that a federal court cannot
8
"pronounce any statute, either of the state or of the United States, void, because irreconcilable with the constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies.' Liverpool, N.Y. & P. Steamship Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899.'
9
Recently in Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), the Court, while noting that '(g)eneralizations about standing to sue are largely worthless as such,' id., at 151, 90 S.Ct., at 829, emphasized that '(o)ne generalization is, however, necessary and that is that the question of standing in the federal courts is to be considered in the framework of Article III which restricts judicial power to cases' and 'controversies."4
10
Although the recent holding of the Court in Flast v. Cohen, supra, is a starting point in an examination of respondent's claim to prosecute this suit as a taxpayer, that case must be read with reference to its principal predecessor, Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923). In Frothingham, the injury alleged was that the congressional enactment challenged as unconstitutional would, if implemented, increase the complainant's future federal income taxes.5 Denying standing, the Frothingham Court rested on the 'comparatively minute(,) remote, fluctuating and uncertain,' id., at 487, 43 S.Ct., at 601, impact on the taxpayer, and the failure to allege the kind of direct injury required for standing.
11
'The party who invokes the (judicial) power must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.' Id., at 488, 43 S.Ct., at 601.
12
When the Court addressed the question of standing in Flast, Mr. Chief Justice Warren traced what he described as the 'confusion' following Frothingham as to whether the Court had announced a constitutional doctrine barring sutis by taxpayers challenging federal expenditures as unconstitutional or simply a policy rule of judicial self-restraint. In an effort to clarify the confusion and to take into account intervening developments, of which class actions and joinder under the Federal Rules of Civil Procedure were given as examples, the Court embarked on 'a fresh examination of the limitations upon standing to sue in a federal court and the application of those limitations to taxpayer suits.' 392 U.S., at 94, 88 S.Ct., at 1949. That re-examination led, however, to the holding that a 'taxpayer will have standing consistent with Article III to invoke federal judicial power when he alleges that congressional action under the taxing and spending clause is in derogation of those constitutional provisions which operate to restrict the exercise of the taxing and spending power.' Id., at 105—106, 88 S.Ct., at 1955 (Emphasis supplied.) In so holding, the Court emphasized that Art. III requirements are the threshold inquiry:
13
'The 'gist of the question of standing' is whether the party seeking relief has 'alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness . . . upon which the court so largely depends for illumination of difficult constitutional questions." Id., at 99, 88 S.Ct., at 1952, citing Baker v. Carr, 369 U.S., at 204, 82 S.Ct., at 703.
14
The Court then announced a two-pronged standing test which requires allegations: (a) challenging an enactment under the Taxing and Spending Clause of Art. I, § 8, of the Constitution; and (b) claiming that the challenged enactment exceeds specific constitutional limitations imposed on the taxing and spending power. 392 U.S., at 102—103, 88 S.Ct., at 1953—1954. While the 'impenetrable barrier to suits against Acts of Congress brought by individuals who can assert only the interest of federal taxpayers,' id., at 85, 88 S.Ct., at 1944, had been slightly lowered, the Court made clear it was reaffirming the principle of Frothingham precluding a taxpayer's use of 'a federal court as a forum in which to air his generalized grievances about the conduct of government or the allocation of power in the Federal System.' Id., at 106, 88 S.Ct., at 1956. The narrowness of that holding is emphasized by the concurring opinion of Mr. Justice Stewart in Flast:
15
'In concluding that the appellants therefore have standing to sue, we do not undermine the salutary principle, established by Frothingham and reaffirmed today, that a taxpayer may not 'employ a federal court as a forum in which to air his generalized grievances about the conduct of government or the allocation of power in the Federal System." (Citation omitted.) Id., at 114, 88 S.Ct., at 1960.
II
16
Although the Court made it very explicit in Flast that a 'fundamental aspect of standing' is that it focuses primarily on the party seeking to get his complaint before the federal court rather than 'on the issues he wishes to have adjudicated,' id., at 99, 88 S.Ct., at 1952, it made equally clear that
17
'in ruling on (taxpayer) standing, it is both appropriate and necessary to look to the substantive issues for another purpose, namely, to determine whether there is a logical nexus between the status asserted and the claim sought to be adjudicated.' ibid., 88 S.Ct., at 1953.6
18
We therefore turn to an examination of the issues sought to be raised by respondent's complaint to determine whether he is 'a proper and appropriate party to invoke federal judicial power,' id., at 102, 88 S.Ct., at 1953, with respect to those issues.
19
We need not and do not reach the merits of the constitutional attack on the statute; our inquiry into the 'substantive issues' is for the limited purpose indicated above. The mere recital of the respondent's claims and an examination of the statute under attack demonstrate how far he falls short of the standing criteria of Flast and how neatly he falls within the Frothingham holding left undisturbed. Although the status he rests on is that he is a taxpayer, his challenge is not addressed to the taxing or spending power, but to the statutes regulating the CIA, specifically 50 U.S.C. § 403j(b). That section provides different accounting and reporting requirements and procedures for the CIA, as is also done with respect to other governmental agencies dealing in confidential areas.7
20
Respondent makes no claim that appropriated funds are being spent in violation of a 'specific constitutional limitation upon the . . . taxing and spending power . . ..' 392 U.S., at 104, 88 S.Ct., at 1954. Rather, he asks the courts to compel the Government to give him information on precisely how the CIA spends its funds. Thus there is no 'logical nexus' between the asserted status of taxpayer and the claimed failure of the Congress to require the Executive to supply a more detailed report of the expenditures of that agency.8
21
The question presented thus is simply and narrowly whether these claims meet the standards for taxpayer standing set forth in Flast; we hold they do not. Respondent is seeking 'to employ a federal court as a forum in which to air his generalized grievances about the conduct of government.' 392 U.S., at 106, 88 S.Ct., at 1956. Both Frothingham and Flast, supra, reject that basis for standing.
III
22
The Court of Appeals held that the basis of taxpayer standing
23
'need not always be the appropriation and the spending of (taxpayer's) money for an invalid purpose. The personal stake may come from an injury in fact even if it is not directly economic in nature. Association of Data Processing Organizations, Inc. v. Camp, (397 U.S. 150) 154, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970).' 465 F.2d, at 853.9
24
The respondent's claim is that without detailed information on CIA expenditures—and hence its activities—he cannot intelligently follow the actions of Congress or the Executive, nor can he properly fulfill his obligations as a member of the electorate in voting for candidates seeking national office.
25
This is surely the kind of a generalized grievance described in both Frothingham and Flast since the impact on him is plainly undifferentiated and 'common to all members of the public.' Ex parte Le vitt, 302 U.S. 633, 634, 58 S.Ct. 1, 82 L.Ed. 493 (1937); Laird v. Tatum, 408 U.S. 1, 13, 92 S.Ct. 2318, 2325, 33 L.Ed.2d 154 (1972). While we can hardly dispute that this respondent has a genuine interest in the use of funds and that his interest may be prompted by his status as a taxpayer, he has not alleged that, as a taxpayer, he is in danger of suffering any particular concrete injury as a result of the operation of this statute. As the Court noted in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972):
26
'(A) mere 'interest in a problem,' no matter how long-standing the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization 'adversely affected' or 'aggrieved' within the meaning of the APA.' Id., at 739, 92 S.Ct., at 1368.
27
Ex parte Le vitt, supra, is especially instructive. There Le vitt sought to challenge the validity of the commission of a Supreme Court Justice who had been nominated and confirmed as such while he was a member of the Senate. Le vitt alleged that the appointee had voted for an increase in the emoluments provided by Congress for Justices of the Supreme Court during the term for which he was last elected to the United States Senate. The claim was that the appointment violated the explicit prohibition of Art. I, § 6, cl. 2, of the Constitution.10 The Court disposed of Le vitt's claim, stating:
28
'It is an established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immediately in danger of sustaining a direct injury as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public.' 302 U.S., at 634, 58 S.Ct., at 1. (Emphasis supplied.)
29
Of course, if Le vitt's allegations were true, they made out an arguable violation of an explicit prohibition of the Constitution. Yet even this was held insufficient to support standing because, whatever Le vitt's injury, it was one he shared with 'all members of the public.' Respondent here, like the petitioner in Le vitt, also fails to clear the threshold hurdle of Baker v. Carr, 369 U.S., at 204, 82 S.Ct., at 703. See supra, at 171, and Flast, supra.11
30
It can be argued that if respondent is not permitted to litigate this issue, no one can do so. In a very real sense, the absence of any particular individual or class to litigate these claims gives support to the argument that the subject matter is committed to the surveillance of Congress, and ultimately to the political process. Any other conclusion would mean that the Founding Fathers intended to set up something in the nature of an Athenian democracy or a New England town meeting to oversee the conduct of the National Government by means of lawsuits in federal courts. The Constitution created a representative Government with the representatives directly responsible to their constituents at stated periods of two, four, and six years; that the Constitution does not afford a judicial remedy does not, of course, completely disable the citizen who is not satisfied with the 'ground rules' established by the Congress for reporting expenditures of the Executive Branch. Lack of standing within the narrow confines of Art. III jurisdiction does not impair the right to assert his views in the political forum or at the polls. Slow, cumbersome, and unresponsive though the traditional electoral process may be thought at times, our system provides for changing members of the political branches when dissatisfied citizens convince a sufficient number of their fellow electors that elected representatives are delinquent in performing duties committed to them.
31
As our society has become more complex, our numbers more vast, our lives more varied, and our resources more strained, citizens increasingly request the intervention of the courts on a greater variety of issues than at any period of our national development. The acceptance of new categories of judicially cognizable injury has not eliminated the basic principle that to invoke judicial power the claimant must have a 'personal stake in the outcome,' Baker v. Carr, supra, at 204, 82 S.Ct., at 703, or a 'particular, concrete injury,' Sierra Club, supra, 405 U.S., at 740—741, n. 16, 92 S.Ct., at 1369, or 'a direct injury,' Ex parte Le vitt, supra, 302 U.S., at 634, 58 S.Ct., at 1; in short, something more than 'generalized grievances,' Flast, supra, 392 U.S., at 106, 88 S.Ct., at 1956. Respondent has failed to meet these fundamental tests; accordingly, the judgment of the Court of Appeals is reversed.
32
Reversed.
33
Mr. Justice POWELL, concurring.
34
I join the opinion of the Court because I am in accord with most of its analysis, particularly insofar as it relies on traditional barriers against federal taxpayer or citizen standing. And I agree that Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), which set the boundaries for the arguments of the parties before us, is the most directly relevant precedent and quite correctly absorbs a major portion of the Court's attention. I write solely to indicate that I would go further than the Court and would lay to rest the approach undertaken in Flast. I would not overrule Flast on its facts, because it is now settled that federal taxpayer standing exists in Establishment Clause cases. I would not, however, perpetuate the doctrinal confusion inherent in the Flast two-part 'nexus' test. That test is not a reliable indicator of when a federal taxpayer has standing, and it has no sound relationship to the question whether such a plaintiff, with no other interest at stake, should be allowed to bring suit against one of the branches of the Federal Government. In my opinion, it should be abandoned.
35
* My difficulties with Flast are several. The opinion purports to separate the question of standing from the merits, id., at 99 101, 88 S.Ct., at 1952—1953, yet it abruptly returns to the substantive issues raised by a plaintiff for the purpose of determining 'whether there is a logical nexus between the status asserted and the claim sought to be adjudicated.' Id., at 102, 88 S.Ct., at 1953. Similarly, the opinion distinguishes between constitutional and prudential limits on standing. Id., at 92—94, 97, 88 S.Ct., at 1948. I find it impossible, however, to determine whether the two-part 'nexus' test created in Flast amounts to a constitutional or a prudential limitation, because it has no meaningful connection with the Court's statement of the bare-minimum constitutional requirements for standing.
36
Drawing upon Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), the Court in Flast stated the "gist of the question of standing" as 'whether the party seeking relief has 'alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." 392 U.S., at 99, 88 S.Ct., at 1952. As the Court today notes, ante, at 173, this is now the controlling definition of the irreducible Art. III case-or-controversy requirements for standing.1 But, as Mr. Justice Harlan pointed out in his dissent in Flast, 392 U.S., at 116 et seq., 88 S.Ct., at 1961, it is impossible to see how an inquiry about the existence of 'concrete adverseness' is furthered by an application of the Flast test.
37
Flast accounced the following two-part 'nexus' test:
38
'The nexus demanded of federal taxpayers has two aspects to it. First, the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. Thus, a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, § 8, of the Constitution. It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute. . . . Secondly, the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged. Under this requirement, the taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8. When both nexuses are established, the litigant will have shown a taxpayer's stake in the outcome of the controversy and will be a proper and appropriate party to invoke a federal court's jurisdiction.' Id., at 102—103, 88 S.Ct., at 1954.
39
Relying on history, the Court identified the Establishment Clause as a specific constitutional limitation upon the exercise by Congress of the taxing and spending power conferred by Art. I, § 8. 392 U.S., at 103—105, 88 S.Ct., at 1954 1955. On the other hand, the Tenth Amendment, and apparently the Due Process Clause of the Fifth Amendment, were determined not to be such 'specific' limitations. The bases for these determinations are not wholly clear, but it appears that the Court found the Tenth Amendment addressed to the interests of the States, rather than of taxpayers, and the Due Process Clause no protection against increases in tax liability. Id., at 105, 88 S.Ct., at 1955.
40
In my opinion, Mr. Justice Harlan's critique of the Flast 'nexus' test is unanswerable. As he pointed out, 'the Court's standard for the determination of standing (i.e., sufficiently concrete adverseness) and its criteria for the satisfaction of that standard are entirely unrelated.' Id., at 122, 88 S.Ct., at 1964. Assuming that the relevant constitutional inquiry is the intensity of the plaintiff's concern, as the Court initially posited, Id., at 99, 88 S.Ct., at 1952, the Flast criteria 'are not in any sense a measurement of any plaintiff's interest in the outcome of any suit. Id., at 121, 88 S.Ct., at 1964 (Harlan, J., dissenting). A plaintiff's incentive to challenge an expenditure does not turn on the 'unconnected fact' that it relates to a regulatory rather than a spending program, id., at 122, 88 S.Ct., at 1964, or on whether the constitutional provision on which he relies is a 'specific limitation' upon Congress' spending powers. Id., at 123, 88 S.Ct., at 1965.2
41
The ambiguities inherent in the Flast '(exus' limitations on federal taxpayer standing are illustrated by this case. There can be little doubt about respondent's fervor in pursuing his case, both within administrative channels and at every level of the federal courts. The intensity of his interest appears to bear no relationship to the fact that, literally speaking, he is not challenging directly a congressional exercise of the taxing and spending power. On the other hand, if the involvement of the taxing and spending power has some relevance, it requires no great leap in reasoning to conclude that the Statement and Account Clause, Art. I, § 9, cl. 7, on which respondent relies, is inextricably linked to that power. And that Clause might well be seen as a 'specific' limitation on congressional spending. Indeed, it could be viewed as the most democratic of limitations. Thus, although the Court's application of Flast to the instant case is probably literally correct, adherence to the Flast test in this instance suggests, as does Flast itself, that the test is not a sound or logical limitation on standing.
42
The lack of real meaning and of principled content in the Flast 'nexus' test renders it likely that it will in time collapse of its own weight, as Mr. Justice Douglas predicted in his concurring opinion in that case. 392 U.S. at 107, 88 S.Ct., at 1956. This will present several options for the Court. It may either reaffirm pre-Flast prudential limitations on federal and citizen taxpayer standing; attempt new doctrinal departures in this area, as would Mr. Justice STEWART, post, at 203—204; or simply drop standing barriers altogether, as, judging by his concurring opinion in Flast, supra, and his dissenting opinion today, would Mr. Justice DOUGLAS.3 I believe the first option to be the appropriate course, for reasons which may be emphasized by noting the difficulties I see with the other two. And, while I do not disagree at this late date with the Baker v. Carr statement of the constitutional indicia of standing, I further believe that constitutional limitations are not the only pertinent considerations.
II
43
Mr. Justice STEWART, joined by Mr. Justice MARSHALL, would grant citizen or taxpayer standing under those clauses of the Constitution that impose on the Federal Government 'an affirmative duty' to do something on behalf of its citizens and taxpayers. Post, at 203—204. Although he distinguishes between an affirmative constitutional duty and a 'constitutional prohibition' for purposes of this case, post, at 202, it does not follow that Mr. Justice STEWART would deny federal taxpayer standing in all cases involving a constitutional prohibition, as his concurring opinion in Flast makes clear.4 Rather, he would find federal taxpayer standing and perhaps citizen standing, in all cases based on constitutional clauses setting forth an affirmative duty and in unspecified cases where the constitutional clause at issue may be seen as a plain or explicit prohibition.
44
For purposes of determining whether a taxpayer or citizen has standing to challenge the actions of the Federal Government, I fail to perceive a meaningful distinction between constitutional clauses that set forth duties and those that set forth prohibitions.5 In either instance, the relevant inquiry is the same—may a plaintiff, relying no nothing other than citizen or taxpayer status, bring suit to adjudicate whether an entity of the Federal Government is carrying out its responsibilities in conformance with the requirements of the Constitution? A taxpayer's or citizen's interest in and willingness to pursue with vigor such a suit would not turn on whether the constitutional clause at issue imposed a duty on the Government to do something for him or prohibited the Government from doing something to him. Prohibitions and duties in this context are opposite sides of the same coin. Thus, I do not believe that the inquiry whether federal courts should entertain public actions is advanced by line drawing between affirmative duties and prohibitions.6
45
In short, in my opinion Brother STEWART's view fails to provide a meaningful stopping point between an all-or-nothing position with regard to federal taxpayer or citizen standing. In this respect, it shares certain of the deficiencies of Flast. I suspect that this may also be true of any intermedia position in this area. Mr. Justice DOUGLAS correctly discerns, I think, that the alternatives here as a matter of doctrine are essentially bipolar. His preference is clear: 'I would be as liberal in allowing taxpayers standing to object to . . . violations of the First Amendment as I would in granting standing to people to complain of any invasion of their rights under the Fourth Amendment or the Fourteenth or under any other guarantee in the Constitution itself or in the Bill of Rights.' Flast v. Cohen, 392 U.S., at 114, 88 S.Ct., at 1959 (concurring opinion). My view is to the contrary.
III
46
Relaxation of standing requirements is directly related to the expansion of judicial power.7 It seems to me inescapable that allowing unrestricted taxpayer or citizen standing would significantly alter the allocation of power at the national level, with a shift away from a democratic form of government. I also believe that repeated and essentially head-on confrontations between the lifetenured branch and the representative branches of government will not, in the long run, be beneficial to either. The public confidence essential to the former and the vitality critical to the latter may well erode if we do not exercise self-restraint in the utilization of our power to negative the actions of the other branches. We should be ever mindful of the contradictions that would arise if a democracy were to permit general oversight of the elected branches of government by a nonrepresentative, and in large measure insulated, judicial branch.8 Moreover, the argument that the Court should allow unrestricted taxpayer or citizen standing underestimates the ability of the representative branches of the Federal Government to respond to the citizen pressure that has been responsible in large measure for the concurrent drift toward expanded standing. Indeed, taxpayer or citizen advocacy, given its potentially broad base, is precisely the type of leverage that in a democracy ought to be employed against the branches that were intended to be responsive to public attitudes about the appropriate operation of government. 'We must as judges recall that, as Mr. Justice Holmes wisely observed, the other branches of the Government 'are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.' Missouri, Kansas & Texas R. Co. v. May, 194 U.S. 267, 270, 24 S.Ct. 638, 48 L.Ed. 971.' Flast v. Cohen, 392 U.S., at 131, 88 S.Ct., at 1968 (Harlan, J., dissenting).
47
Unrestrained standing in federal taxpayer or citizen suits would create a remarkably illogical system of judicial supervision of the coordinate branches of the Federal Government. Randolph's proposed Council of Revision, which was repeatedly rejected by the Framers, at least had the virtue of being systematic; every law passed by the legislature automatically would have been previewed by the Judiciary before the law could take effect.9 On the other hand, since the Judiciary cannot select the taxpayers or citizens who bring suit or the nature of the suits, the allowance of public actions would produce uneven and sporadic review, the quality of which would be influenced by the resources and skill of the particular plaintiff. And issues would be presented in abstract form, contrary to the Court's recognition that 'judicial review is effective largely because it is not available simply at the behest of a partisan faction, but is exercised only to remedy a particular, concrete injury.' Sierra Club v. Morton, 405 U.S. 727, 740—741, n. 16, 92 S.Ct. 1361, 1369, 31 L.Ed.2d 636 (1972).10
48
The power recognized in Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803), is a potent one. Its prudent use seems to me incompatible with unlimited notions of taxpayer and citizen standing. Were we to utilize this power as indiscriminately as is now being urged, we may witness efforts by the representative branches drastically to curb its use. Due to what many have regarded as the unresponsiveness of the Federal Government to recognized needs or serious inequities in our society, recourse to the federal courts has attained an unprecedented popularity in recent decades. Those courts have often acted as a major instrument of social reform. But this has not always been the case, as experiences under the New Deal illustrate. The public reaction to the substantive due process holdings of the federal courts during that period requires no elaboration, and it is not unusual for history to repeat itself.
49
Quite apart from this possibility, we risk a progressive impairment of the effectiveness of the federal courts if their limited resources are diverted increasingly from their historic role to the resolution of public-interest suits brought by litigants who cannot distinguish themselves from all taxpayers or all citizens. The irreplaceable value of the power articulated by Mr. Chief Justice Marshall lies in the protection it has afforded the constitutional rights and liberties of individual citizens and minority groups against oppressive or discriminatory government action. It is this role, not some amorphous, general supervision of the operations of government, that has maintained public esteem for the federal courts and has permitted the peaceful coexistence of the cuntermajoritarian implications of judicial review and the democratic principles upon which our Federal Government in the final analysis rests.
50
The considerations outlined above underlie, I believe, the traditional hostility of the Court to federal taxpayer or citizen standing where the plaintiff has nothing at stake other than his interest as a taxpayer or citizen. It merits noting how often and how unequivocally the Court has expressed its antipathy to efforts to convert the Judiciary into an open forum for the resolution of political or ideological disputes about the performance of government. See, e.g., Ex parte Le vitt, 302 U.S. 633, 634, 58 S.Ct. 1, 82 L.Ed. 493 (1937);11 Frothingham v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078 (1923);12 Fairchild v. Hughes, 258 U.S. 126, 129, 42 S.Ct. 274, 275, 66 L.Ed. 499 (1922);13 Tyler v. Judges of Court of Registration, 179 U.S. 405, 406, 21 S.Ct. 206, 207, 45 L.Ed. 252 (1900).14 These holdings and declarations reflect a wise view of the need for judicial restraint if we are to preserve the Judiciary as the branch 'least dangerous to the political rights of the Constitution . . ..' Federalist No. 78, p. 483 (Lodge ed. 1908).
51
To be sure, standing barriers have been substantially lowered in the last three decades. The Court has confirmed the power to Congress to open the federal courts to representatives of the public interest through specific statutory grants of standing. E.g., FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 60 S.Ct. 693, 84 L.Ed. 869 (1940); Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 62 S.Ct. 875, 86 L.Ed. 1229 (1942); Flast v. Cohen, 392 U.S., at 130—133, 88 S.Ct., at 1968—1970 (Harlan, J., dissenting); Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 212, 93 S.Ct. 364, 368, 34 L.Ed.2d 415 (1972) (White, J., concurring). Even in the absence of specific statutory grants of standing, economic interests that at one time would not have conferred standing have been re-examined and found sufficient. Compare, e.g., Association of Data Processing Service Organizations, Ins. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), and Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970), with e.g., Tennessee Electric Power Co. v. TVA, 306 U.S. 118, 59 S.Ct. 366, 83 L.Ed. 543 (1939), and Alabama Power Co. v. Ickes, 302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374 (1938). See also Investment Co. Institute v. Camp, 401 U.S. 617, 91 S.Ct. 1091, 28 L.Ed.2d 367 (1971); Arnold Tours, Inc. v. Camp, 400 U.S. 45, 91 S.Ct. 158, 27 L.Ed.2d 179 (1970). Noneconomic interests have been recognized. E.g., Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). A stringently limited exception for federal taxpayer standing has been created. Flast v. Cohen, supra. The concept of particularized injury has been dramatically diluted. E.g., United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973).
52
The revolution in standing doctrine that has occurred, particularly in the 12 years since Baker v. Carr, supra, has not meant, however, that standing barriers have disappeared altogether. As the Court noted in Sierra Club, 'broadening the categories of injury that may be alleged in support of standing is a different matter from abandoning the requirement that the party seeking review must himself have suffered an injury.' 405 U.S., at 738, 92 S.Ct., at 1368. Accord, Linda R.S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973).15 Indeed, despite the diminution of standing requirements in the last decade, the Court has not broken with the traditional requirement that, in the absence of a specific statutory grant of the right of review, a plaintiff must allege some particularized injury that sets him apart from the man on the street.16
53
I recognize that the Court's allegiance to a requirement of particularized injury has on occasion required a reading of the concept that threatens to transform it beyond recognition. E.g., Baker v. Carr, supra; Flast v. Cohen, supra.17 But despite such occasional digressions, the requirement remains, and I think it does so for the reasons outlined above. In recognition of those considerations, we should refuse to go the last mile toward abolition of standing requirements that is implicit in broadening the 'precarious opening 'for federal taxpayers created by Flast, see 392 U.S., at 116, 88 S.Ct., at 1961 (Fortas, J., concurring), or in allowing a citizen qua citizen to invoke the power of the federal courts to negative unconstitutional acts of the Federal Government.
54
In sum, I believe we should limit the expansion of federal taxpayer and citizen standing in the absence of specific statutory authorization to an outer boundary drawn by the results in Flast and Baker v. Carr. I think we should face up to the fact that all such suits are an effort 'to employ a federal court as a forum in which to air . . . generalized grievances about the conduct of government or the allocation of power in the Federal System.' Flast v. Cohen, 392 U.S., at 106, 88 S.Ct., at 1956. The Court should explicitly reaffirm traditional prudential barriers against such public actions.18 My reasons for this view are rooted in respect for democratic processes and in the conviction that '(t)he powers of the federal judiciary will be adequate for the great burdens placed upon them only if they are employed prudently, with recognition of the strengths as well as the hazards that go with out kind of representative government.' Id., at 131, 88 S.Ct., at 1968 (Harlan, J., dissenting).
55
Mr. Justice DOUGLAS, dissenting.
56
I would affirm the judgment of the Court of Appeals on the 'standing' issue. My views are expressed in my dissent to the Schlesinger case, 418 U.S. 208, 229, 94 S.Ct. 2925, 2936, 41 L.Ed.2d 706, decided this day. There a citizen and taxpayer raised a question concerning the Incompatibility Clause of the Constitution which bars a person from 'holding any Office under the United States' if he is a Member of Congress, Art. I, § 6, cl. 2. That action was designed to bring the Pentagon into line with that constitutional requirement by requiring it to drop 'reservists' who were Members of Congress.
57
The present action involves Art. I, § 9, cl. 7, of the Constitution which provides:
58
'No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.'
59
We held in Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947, that a taxpayer had 'standing' to challenge the constitutionality of taxes raised to finance the establishment of a religion contrary to the command of the First and Fourteenth Amendments. A taxpayer making such outlays, we held, had sufficient 'personal stake' in the controversy, Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663, to give the case the 'concrete adverseness' necessary for the resolution of constitutional issues. Ibid.
60
Respondent in the present case claims that he has a right to 'a regular statement and account' of receipts and expenditures of public moneys for the Central Intelligence Agency. As the Court of Appeals noted, Flast recognizes 'standing' of a taxpayer to challenge appropriations made in the face of a constitutional prohibition, and it logically asks, 'how can a taxpayer make that challenge unless he knows how the money is being spent?' 465 F.2d 844, 853.
61
History shows that the curse of government is not always venality; secrecy is one of the most tempting coverups to save regimes from criticism. As the Court of Appeals said:
62
'The Framers of the Constitution deemed fiscal information essential if the electorate was to exercise any control over its representatives and meet their new responsibilities as citizens of the Republic; and they mandated publication, although stated in general terms, of the Government's receipts and expenditures. Whatever the ultimate scope and extent of that obligation, its elimination generates a sufficient, adverse interest in a taxpayer.' Ibid. (Footnote omitted.)
63
Whatever may be the merits of the underlying claim, it seems clear that the taxpayer in the present case is not making a generalized complaint about the operation of Government. He does not even challenge the constitutionality of the Central Intelligence Agency Act. He only wants to know the amount of tax money exacted from him that goes into CIA activities. Secrecy of the Government acquires new sanctity when his claim is denied. Secrecy has, of course, some constitutional sanction. Article I, § 5, cl. 3, provides 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 . . ..' But the difference was great when it came to an accounting of public money. Secrecy was the evil at which Art. I, § 9, cl. 7, was aimed. At the Convention, Mason took the initiative in moving for an annual account of public expenditures. 2 M. Farrand, The Records of the Federal Convention of 1787, p. 618 (1911). Madison suggested it be 'from time to time,' id., at 618—619, because it was thought that requiring publication at fixed intervals might lead to no publication at all. Indeed under the Articles of Confederation '(a) punctual compliance being often impossible, the practice ha(d) ceased altogether.' Id., at 619.
64
During the Maryland debates on the Constitution, McHenry said: '(T)he People who give their Money ought to know in what manner it is expended,' 3 Farrand, supra, at 150. In the Virginian debates Mason expressed his belief that while some matters might require secrecy (e.g., ongoing diplomatic negotiations and military operations) 'he did not conceive that the receipts and expenditures of the public money ought ever to be concealed. The people, he affirmed, had a right to know the expenditures of their money.' 3 J. Elliot, Debates on the Federal Constitution 459 (1836). Lee said that the clause 'must be supposed to mean, in the common acceptation of language, short, convenient periods' and that those 'who would neglect this provision would disobey the most pointed directions.' Ibid. Madison added that an accounting from 'time to time' insured that the accounts would be 'more full and satisfactory to the public, and would be sufficiently frequent.' Id., at 460. Madison thought 'this provision went farther than the constitution of any state in the Union, or perhaps in the world.' Ibid. In New York Livingston said: 'Will not the representatives . . . consider it as essential to their popularity, to gratify their constituents with full and frequent statements of the public accounts? There can be no doubt of it,' 2 Elliot, supra, at 347.*
65
From the history of the clause it is apparent that the Framers inserted it in the Constitution to give the public knowledge of the way public funds are expended. No one has a greater 'personal stake' in policing this protective measure than a taxpayer. Indeed, if a taxpayer may not raise the question, who may do so? The Court states that discretion to release information is in the first instance 'committed to the surveillance of Congress,' and that the right of the citizenry to information under Art. I, § 9 cl. 7, cannot be enforced directly, but only through the (s)low cumbersome, and unresponsive' electoral process. One has only to read constitutional history to realize that statement would shock Mason and Madison. Congress of course has discretion; but to say that it has the power to read the clause out of the Constitution when it comes to one or two or three agencies is astounding. That is the bare-bones issue in the present case. Does Art. I, § 9, cl. 7, of the Constitution permit Congress to withhold 'a regular Statement and Account' respecting any agency it chooses? Respecting all federal agencies? What purpose, what function is the clause to perform under the Court's construction? The electoral process already permits the removal of legislators for any reason. Allowing their removal, at the polls for failure to comply with Art. I, § 9, cl. 7, effectively reduces that clause to a nullity, giving it no purpose at all.
66
The sovereign in this Nation is the people, not the bureaucracy. The statement of accounts of public expenditures goes to the heart of the problem of sovereignty. If taxpayers may not ask that rudimentary question, their sovereignty becomes an empty symbol and a secret bureaucracy is allowed to run our affairs.
67
The resolution of that issue has not been entrusted to one of the other coordinate branches of government—the test of the 'political question' under Baker v. Carr, 369 U.S., at 217, 82 S.Ct., at 710. The question is 'political' if there is 'a textually demonstrable constitutional commitment of the issue to a coordinate political department,' Ibid. The mandate runs to the Congress and to the agencies it creates to make 'a regular Statement and Account of the Receipts and Expenditures of all public Money.' The beneficiary—as is abundantly clear from the constitutional history—is the public. The public cannot intelligently know how to exercise the franchise unless it has a basic knowledge concerning at least the generality of the accounts under every head of government. No greater crisis in confidence can be generated than today's decision. It § consequences are grave because it relegates to secrecy vast operations of government and keeps the public from knowing what secret plans concerning this Nation or other nations are afoot. The fact that the result is serious does not, of course, make the issue 'justiciable.' But resolutions of any doubts or abmiguities should be toward protecting an individual's stake in the integrity of constitutional guarantees rather than turning him away without even a chance to be heard.
68
I would affirm the judgment below.
69
Mr. Justice STEWART, with whom Mr. Justice MARSHALL joins, dissenting.
70
The Court's decisions in Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), and Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923), throw every little light on the question at issue in this case. For, unlike the plaintiffs in those cases, Richardson did not bring this action asking a court to invalidate a federal statute on the ground that it was beyond the delegated power of Congress to enact or that it contravened some constitutional prohibition. Richardson's claim is of an entirely different order. It is that Art. I, § 9, cl. 7, of the Constitution, the Statement and Account Clause, gives him a right to receive, and imposes on the Government a corresponding affirmative duty to supply, a periodic report of the receipts and expenditures 'of all public Money.'1 In support of his standing to litigate this claim, he has asserted his status both as a taxpayer and as a citizen-voter. Whether the Statement and Account Clause imposes upon the Government an affirmative duty to supply the information requested and whether that duty runs to every taxpayer or citizen are questions that go to the substantive merits of this litigation. Those questions are not now before us, but I think that the Court is quite wrong in holding that the respondent was without standing to raise them in the trial court.
71
Seeking a determination that the Government owes him a duty to supply the information he has requested, the respondent is in the position of a traditional Hohfeldian plaintiff.2 He contends that the Statement and Account Clause gives him a right to receive the information and burdens the Government with a correlative duty to supply it. Courts of law exist for the resolution of such right-duty disputes. When a party is seeking a judicial determination that a defendant owes him an affirmative duty, it seems clear to me that he has standing to litigate the issue of the existence vel non of this duty once he shows that the defendant has declined to honor his claim. If the duty in question involved the payment of a sum of money, I suppose that all would agree that a plaintiff asserting the duty would have standing to litigate the issue of his entitlement to the money upon a showing that he had not been paid. I see no reason for a different result when the defendant is a Government official and the asserted duty relates not to the payment of money, but to the disclosure of items of information.
72
When the duty relates to a very particularized and explicit performance by the asserted obligor, such as the payment of money or the rendition of specific items of information, there is no necessity to resort to any extended analysis, such as the Flast nexus tests, in order to find standing in the obligee. Under such circumstances, the duty itself, running as it does from the defendant to the plaintiff, provides fully adequate assurance that the plaintiff is not seeking to 'employ a federal court as a forum in which to air his generalized grievances about the conduct of government or the allocation of power in the Federal System.' Flast, supra, 392 U.S., at 106, 88 S.Ct., at 1956. If such a duty arose in the context of a contract between private parties, no one would suggest that the obligee should be barred from the courts. It seems to me that when the asserted duty is, as here, as particularized, palpable, and explicit as those which courts regularly recognize in private contexts, it should make no difference that the obligor is the Government and the duty is embodied in our organic law. Certainly after United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973), it does not matter that those to whom the duty is owed may be many. '(S)tanding is not to be denied simply because many people suffer the same injury.' Id., at 687, 93 S.Ct., at 2416.
73
For example, the Freedom of Information Act creates a private cause of action for the benefit of persons who have requested certain records from a public agency and whose request has been denied. 5 U.S.C. § 552(a)(3). The statute requires nothing more than a request and the denial of that request as a predicate to a suit in the district court. The provision purports to create a duty in the Government agency involved to make those records covered by the statute available to 'any person.' Correspondingly, it confers a right on 'any person' to receive those records, subject to published regulations regarding time, place, fees, and procedure. The analogy, of course, is clear. If the Court is correct in this case in holding that Richardson lacks standing under Art. III to litigate his claim that the Statement and Account Clause imposes an affirmative duty that runs in his favor, it would follow that a person whose request under 5 U.S.C. § 552 has been denied would similarly lack standing under Art. III despite the clear intent of Congress to confer a right of action to compel production of the information.
74
The issue in Flast and its predecessor, Frothingham, supra, related solely to the standing of a federal taxpayer to challenge allegedly unconstitutional exercises of the taxing and spending power. The question in those cases was under what circumstances a federal taxpayer whose interest stemmed solely from the taxes he paid to the Treasury '(would) be deemed to have the personal stake and interest that impart the necessary concrete adverseness to such litigation so that standing can be conferred on the taxpayer qua taxpayer consistent with the constitutional limitations of Article III.' 392 U.S., at 101, 88 S.Ct., at 1953. But the 'nexus' criteria developed in Flast were not intended as a litmus test to resolve all conceivable standing questions in the federal courts; they were no more than a response to the problem of taxpayer standing to challenge federal legislation enacted in the exercise of the taxing and spending power of Congress.
75
Richardson is not asserting that a taxing and spending program exceeds Congress' delegated power or violates a constitutional limitation on such power. Indeed, the constitutional provision that underlies his claim does not purport to limit the power of the Federal Government in any respect, but, according to Richardson, simply imposes an affirmative duty on the Government with respect to all taxpayers or citizen-voters of the Republic. Thus, the nexus analysis of Flast is simply not relevant to the standing question raised in this case.
76
The Court also seems to say that this case is not justiciable because it involves a political question. Ante, at 179. This is an issue that is not before us. The 'Question Presented' in the Government's petition for certiorari was the respondent's 'standing to challenge the provisions of the Central Intelligence Agency Act which provide that appropriations to and expenditures by that Agency shall not be made public, on the ground that such secrecy contravenes Article I, section 9, clause 7 of the Constitution.'3 The issue of the justiciability of the respondent's claim was thus not presented in the petition for certiorari, and it was not argued in the briefs.4 At oral argument, in response to questions about whether the Government was asking this Court to rule on the justiciability of the respondent's claim, the following colloquy occurred between the Court and the Solicitor General:
77
'MR. BORK: . . . I think the Court of Appeals was correct that the political question issue could be resolved much more effectively if we were in the full merits of the case than we can at this stage. I think standing is all that really can be effectively discussed in the posture of the case now.
78
'Q: . . . (I)f we disagree with you on standing, the Government agrees then that the case should go back to the District Court?
79
'MR. BORK: I think that is correct.' The Solicitor General's answer was clearly right. '(W)hen standing is placed in issue in a case, the question is whether the person whose standing is callenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable.' Flast, supra, at 99—100, 88 S.Ct., at 1952.
80
On the merits, I presume that the Government's position would be that the Statement and Account Clause of the Constitution does not impose an affirmative duty upon it; that any such duty does not in any event run to Richardson; that any such duty is subject to legislative qualifications, one of which is applicable here; and that the question involved is political and thus not justiciable. Richardson might ultimately be thrown out of court on any one of these grounds, or some other. But to say that he might ultimately lose his lawsuit certainly does not mean that he had no standing to bring it.
81
For the reasons expressed, I believe that Richardson had standing to bring this action. Accordingly, I would affirm the judgment of the Court of Appeals.
1
Respondent's complaint alleged that he was 'a member of the electorate, and a loyal citizen of the United States.' At the same time, he states that he 'does not challenge the formulation of the issue contained in the petition for certiorari.' Brief for Respondent in Opposition to Pet. for Cert. 1. The question presented there was: 'Whether a federal taxpayer has standing to challenge the provisions of the Central Intelligence Agency Act which provide that appropriations to and expenditures by that Agency shall not be made public, on the ground that such secrecy contravenes Article I, section 9, clause 7 of the Constitution.' Pet. for Cert. 2.
2
App. 15—16. Respondent's complaint also asked for a three-judge district court and this application was denied by a single District Judge with directions to place the case on the calendar in the usual manner. The Court of Appeals, in the judgment under review, ordered that, on remand, the case be considered by a three-judge court. The District Court has granted a stay of respondent's motion to convene a three-judge court, pending disposition of this petition for writ of certiorari. On September 26, 1972, the Third Circuit denied a petition for mandamus, filed by respondent, to compel the immediate convening of a three-judge court.
3
The majority found that the respondent had standing to bring this suit as a taxpayer. One judge held that he had standing as a citizen. This case was originally argued before a panel consisting of two Circuit Judges and one District Judge sitting by designation. After a second round of briefs, the Court of Appeals determined sua sponte to hear the case en banc without further argument. The District Judge sat with the Court of Appeals en banc. This point was not raised in the question presented in the petition for certiorari but the Solicitor General, in a footnote, called attention to the District Judge's participation. He expressed the view that, although 28 U.S.C. § 46(c) limits en banc hearings to circuit judges in active service (and any retired circuit judge who participated in the initial hearing), the error was harmless. In these circumstances we need not reach the question.
4
397 U.S., at 151, 90 S.Ct., at 829. See also K. Davis, Administrative Law Treatise § 22.09—6, p. 753 (Supp.1970).
5
In Frothingham, the plaintiff sought to enjoin enforcement of the Federal Maternity Act of 1921, 42 Stat. 224, which provided for financial grants to States with programs for reducing maternal and infant mortality. She alleged violation of the Fifth Amendment's Due Process Clause on the ground that the legislation encroached on an area reserved to the States.
6
In some cases, the operative effect of this 'look at the substantive issues' could lead to the conclusion that the 'substantive issues' were nonjusticiable and in consequence no one would have standing. See Gilligan v. Morgan, 413 U.S. 1, 9, 93 S.Ct. 2440, 2445, 37 L.Ed.2d 407 (1973); Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 1950, 20 L.Ed.2d 947 (1968); Poe v. Ullman, 367 U.S. 497, 508—509, 81 S.Ct. 1752, 1758—1759, 6 L.Ed.2d 989 (1961).
7
See 28 U.S.C. § 537 (Federal Bureau of Investigation); 31 U.S.C. § 107 (foreign affairs); 42 U.S.C. § 2017(b) (Atomic Energy Commission).
8
Congress has taken notice of the need of the public for more information concerning governmental operations, but at the same time it has continued traditional restraints on disclosure of confidential information. See Freedom of Information Act, 5 U.S.C. § 552; Environmental Protection Agency v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973).
9
The Court of Appeals thus appeared to rely on Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). Abstracting some general language of that opinion from the setting and controlling facts of that case, the Court of Appeals overlooked the crucial factor that standing in that case arose under a specific statute, Bank Service Corporation Act of 1962, 76 Stat. 1132, 12 U.S.C. § 1861. The petitioners in Data Processing alleged competitive economic injury to private business enterprise due to a ruling by the Comptroller of the Currency permitting national banks to sell their data processing services to other banks and to bank customers whose patronage the data processing companies sought. We recognized standing for those private business proprietors who were engaged in selling the same kind of services the Comptroller allowed banks to sell; we held only that the claims of impermissible competition were 'arguably . . . within the zone of interests protected' by § 4 of the Bank Service Corporation Act. 397 U.S., at 156, 90 S.Ct., at 831. In short, Congress had provided competitor standing. The Court saw no indication that Congress had sought to preclude judicial review of administrative rulings of the Comptroller of the Currency as to the limitations Congress placed on national banks.
10
'No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time . . ..'
11
Although we need not reach or decide precisely what is meant by 'a regular Statement and Account,' it is clear that Congress has plenary power to exact any reporting and accounting it considers appropriate in the public interest. It is therefore open to serious question whether the Framers of the Constitution ever imagined that general directives to the Congress or the Executive would be subject to enforcement by an individual citizen. While the available evidence is neither qualitatively nor quantitatively conclusive, historical analysis of the genesis of cl. 7 suggests that it was intended to permit some degree of secrecy of governmental operations. The ultimate weapon of enforcement available to the Congress would, of course, be the 'power of the purse.' Independent of the statute here challenged by respondent, Congress could grant standing to taxpayers or citizens, or both, limited, of course, by the 'cases' and 'controversies' provisions of Art. III.
Not controlling, but surely not umimportant, are nearly two centuries of acceptance of a reading of cl. 7 as vesting in Congress plenary power to spell out the details of precisely when and with what specificity Executive agencies must report the expenditure of appropriated funds and to exempt certain secret activities from comprehensive public reporting. See 2 M. Farrand, The Records of the Federal Convention of 1787, pp. 618—619 (1911); 3 id., at 326—327; 3 J. Elliot, Debates on the Federal Constitution 462 (1836); D. Miller, Secret Statutes of the United States 10 (1918).
1
See also, e.g., Barlow v. Collins, 397 U.S. 159, 170—171, 90 S.Ct. 832, 839—840, 25 L.Ed.2d 192 (1970) (Brennan, J., dissenting); Scott, Standing in the Supreme Court—A Functional Analysis, 86 Harv.l.Rev. 645, 658 (1973). The test announced in Baker and reiterated in Flast reflects how far the Court has moved in recent years in relaxing standing restraints. In Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923), for example, the Court declared that to permit a federal taxpayer suit 'would be not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and co-equal department, an authority which plainly we do not possess.' Id., at 489, 43 S.Ct., at 601. And in denying standing to citizens and taxpayers seeking to bring suit to invalidate the Nineteenth Amendment in Fairchild v. Hughes, 258 U.S. 126, 42 S.Ct. 274, 66 L.Ed. 499 (1922), the Court stated:
'It is frankly a proceeding to have the Nineteenth Amendment declared void. In form it is a bill in equity; but it is not a case within the meaning of § 2 of Article III of the Constitution . . ..' Id., at 129, 42 S.Ct., at 275.
2
Mr. Justice Harlan's criticisms of the Court's analysis in Flast have been echoed by several commentators. E.g., Scott, supra, n. 1, at 660—662; Davis, Standing: Taxpayers and Others, 35 U.Chi.L.Rev. 601, 604—607 (1968). As Professor Scott notes:
'(The Flast 'nexus' test) can be understood as an expedient by a court retreating from the absolute barrier of Frothingham, but not sure of how far to go and desirous of a formula that would enable it to make case by case determinations in the future. By any other standard, however, it is untenable.' 86 Harv.L.Rev., at 661.
3
But see Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 18, 20—21, 62 S.Ct. 875, 884—885, 86 L.Ed. 1229 (1942) (Douglas, J., dissenting). Mr. Justice BRENNAN's view, see 418 U.S., at 237—238, 94 S.Ct. at 2962—2963, that federal taxpayers are able to meet the 'injury-in-fact' test that he articulated in Barlow v. Collins, 397 U.S., at 167—173, 90 S.Ct., at 838—842, renders his position, for me at least, indistinguishable from that of Mr. Justice DOUGLAS. Furthermore, I think that Mr. Justice BRENNAN has modified the standard he identified in Barlow by finding it satisfied in this case. It is a considerable step from the 'distinctive and discriminating' economic injury alleged in Barlow, see Id., at 172 n. 5, 90 S.Ct., at 841, to the generalized interest of a taxpayer or citizen, as Mr. Justice Brennan appears to have acknowledged in his opinion in that case. Ibid.
4
In Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), Mr. Justice Stewart based his concurrence in the majority's opinion on the view that the Establishment Clause constitutes an explicit prohibition on the taxing and spending power:
'Because that clause plainly prohibits taxing and spending in aid of religion, every taxpayer can claim a personal constitutional right not to be taxed for the support of a religious institution. The present case is thus readily distinguishable from Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078, where the taxpayer did not rely on an explicit constitutional prohibition but instead questioned the scope of the powers delegated to the national legislature by Article I of the Constitution.' 392 U.S., at 114, 88 S.Ct., at 1960. (Emphasis supplied.)
5
One commentator, who espouses a broadening of standing in what he refers to as 'public actions,' apparently shares this difficulty. See L. Jaffe, Judicial Control of Administrative Action 484 (1965):
'(T)he ability of a taxpayer or citizen to bring a public action) should not depend on whether the question official conduct is of a positive or negative character, that is, whether it consist of the performance of an improper act or the failure to fulfill a duty.'
6
Such an approach might well lead to problems of classification that would divert attention from the fundamental question of whether public actions are an appropriate matter for the federal courts. And, if distinctions between constitutional prohibitions and duties are to make a difference, there are certain to be some incongruous rules as to when such a public action may be brought. This is apparent when one attempts to categorize the provisions of the Constitution primarily addressed at limiting the powers of the National Government—Art. I, § 9, and the Bill of Rights. All of the clauses of Art. I, § 9, except the seventh, which is at issue here, are stated as prohibitions. In fact the seventh clause is in part a prohibition against expenditures of public money in the absence of appropriations and in part an affirmative duty to publish periodically an account of such expenditures. The rationale for according special treatment solely to one-half of Art. I, § 9, cl. 7, and not to the other and not to the remaining clauses of Art. I, § 9, is not immediately apparent.
The same observation may be made of the Bill of Rights. The First Amendment through the Fifth, and Eighth, and possibly the Tenth are stated in terms of prohibitions. The Sixth Amendment and portions of the Seventh can be classified as duties. The Ninth defies classification. Rational rules for standing in public actions are, it seems to me, unlikely to emerge from an effort to make the format of a particular Amendment determinative.
7
One commentator predicted this phenomenon and its possible implications at the outset of the past decade of dramatic changes in standing doctrine:
'(J)udicial power expands as the requirements of standing are relaxed. . . . (I)f the so-called public action . . . were allowed with respect to constitutional challenges to legislation, then the halls of Congress and of the state legislatures would become with regularity only Act I of any contest to enact legislation involving public officials in its enforcement or application. Act II would, with the usual brief interlude, follow in the courts. . . .' Brown, Quis Custodiet Ipsos Custodes?—The School-Prayer Cases, 1963 Sup.Ct.Rev. 1—16.
8
Cf. A Bickel, The Least Dangerous Branch 122 (1962).
9
Randolph's Resolutions, also referred to as the Virginia Plan, served as the 'matrix' for the document ultimately developed by the Constitutional Convention. See 1 J. Goebel, History of the Supreme Court of the United States 204 (1971). The eighth of Mr. Randolph's 15 proposals was as follows:
'8. Resd. that the Executive and a convenient number of the National Judiciary, ought to compose a council of revision with authority to examine every act of the National Legislature before it shall operate, & every act of a particular Legislature before a Negative thereon shall be final; and that the dissent of the said
Council shall amount to a rejection, unless the Act of the National Legislature be again passed, or that of a particular Legislature be again negatived by (an unspecified number) of the members of each branch.' 1 M. Farrand, The Records of the Federal Convention of 1787, p. 21 (1911) (hereafter Farrand).
See 1 J. Elliot on the Federal Constitution 144 (1836). Madison ably supported the proposal, but it was defeated on three separate votes. 1 Farrand 140, 2 Farrand 71—72, 298.
The analogy between the proposed Council of Revision and unrestricted taxpayer or citizen standing is not complete. For example, Randolph proposed to link the Judiciary directly to the Executive, in large measure to enhance the Executive and to protect it from legislative encroachments. See, e.g., 1 Farrand 108, 138; 2 Farrand 74, 79. Thus, reliance on the Framers' rejection of the Council must be approached with caution. Nevertheless, the arguments advanced at the Convention in support of and in opposition to the Council provide an interesting parallel to present contentions regarding unrestrained public actions. For example, Madison spoke of the 'good' that would 'proceed from the perspicuity, the conciseness, and the systematic character wch. the Code of laws wd. receive from the Judiciary talents.' 1 Farrand 139. He declared that the proposal would be useful 'to restrain the Legislature from encroaching on the other co-ordinate Departments, or on the rights of the people at large; or from passing laws unwise in their principle, or incorrect in their form . . .,' ibid., and that such a system would be 'useful to the Community at large as an additional check' against unwise legislative measures. 2 Farrand 74. Those opposed to the proposal, including Gerry, Martin, and Rutledge, preferred to rely 'on the Representatives of the people as the guardians of their Rights & interests.' Id., at 75. Judges were not presumed 'to possess any peculiar knowledge of the mere policy of public measures . . .,' id., at 73, or any 'higher . . . degree' of knowledge of mankind and of 'Legislative affairs . . ..' Id., at 76. It was 'necessary that the Supreme Judiciary should have the confidence of the people . . .,' id., at 76—77, and this would 'soon be lost, if they are employed in the task of remonstrating
agst. popular measures of the Legislature.' Id., at 77. Moreover, the 'Judges ought never to give their opinion on a law till it comes before them.' Id., at 80.
The arguments adduced at the Convention in opposition to the Council of Revision ultimately prevailed. I believe that analogous arguments should guide us in refusing as a general matter to entertain public actions.
10
Some Western European democracies have experimented with forms of constitutional judicial review in the abstract, see e.g., M. Cappelletti, Judicial Review in the Contemporary World 71—72 (1971), but that has not been our experience, and I think for good reasons. Cf. Bickel, supra, n. 8, at 115—116.
11
'It is an established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immediately in danger of sustaining a direct injury as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public.'
12
'The party who invokes the power (of the Judiciary to declare a statute unconstitutional) must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.'
13
'(Standing will be denied where a plaintiff) has only the right, possessed by every citizen, to require that the government be administered according to law and that the public moneys be not wasted.'
14
'Save in a few instances where, by statute or the settled practice of the courts, the plaintiff is permitted to sue for the benefit of another, he is bund to show an interest in the suit personal to himself, and even in a proceeding which he prosecutes for the benefit of the public, as, for example, in cases of nuisance, he must generally aver an injury peculiar to himself, as distinguished from the great body of his fellow citizens.'
15
See ibid.:
'Although the law of standing has been greatly changed in the last 10 years, we have steadfastly adhered to the requirement that, at least in the absence of a statute expressly conferring standing, federal plaintiffs must allege some threatened or actual injury resulting from the putatively illegal action before a federal court may assume jurisdiction.' (Footnotes omitted.)
16
For example, as the Court noted in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), 'if any group with a bona fide 'special interest' could initiate . . . litigation, it is difficult to perceive why any individual citizen with the same bona fide special interest would not also be entitled to do so.' Id., at 739—740, 92 S.Ct., at 1368. The clear implication is that allowing 'any individual citizen with (a) . . . bona fide special interest' to trigger federal court litigation is a result to be avoided. All standing cases, even the most recent ones, include references to the need for particularized injury or similar language. None of them as yet has equated the interest of a taxpayer or citizen, suing in that status alone, with the particularized interest that standing doctrine has traditionally demanded. To take that step, it appears to me, would render the requirement of direct or immediate injury meaningless and would reduce the Court's consistent insistence on such an injury to mere talk.
17
Baker v. Carr may have a special claim to sui generis status. It was perhaps a necessary response to the manifest distortion of democratic principles practiced by malapportioned legislatures and to abuses of the political system so pervasive as to undermine democratic processes. Flast v. Cohen may also have been a reaction to what appeared at the time as an immutable political logjam that included unsuccessful efforts to confer specific statutory grants of standing. See, e.g., C. Wright, The Law of Federal Courts 40 (2d ed. 1970). Cf. 392 U.S., at 115—116, 88 S.Ct., at 1960—1961 (Fortas, J., concurring).
18
The doctrine of standing has always reflected prudential as well as constitutional limitations. Indeed, it might be said that the correct reading of the Flast nexus test is as a prudential limit, given the Baker v. Carr definition of the constitutional bare minima. The same is undoubtedly true of, for example, the second test created in Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970)—'whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.' See also Barrows v. Jackson,346 U.S. 249, 255, 73 S.Ct. 1031, 1034, 97 L.Ed. 1586 (1953); 'Apart from the (constitutional) requirement, this Court has developed a complementary rule of self-restraint for its own governance . . . which ordinarily precludes a person from challenging the constitutionality of state action by invoking the rights of others.' See Flast v. Cohen, 392 U.S., at 120, 130—133, 88 S.Ct., at 1962, 1968—1970 (Harlan, J., dissenting). Whatever may have been the Court's initial perception of the intent of the Framers, see n. 1, supra, it is now settled that such rules of self-restraint are not required by Art. III but are 'judicially created overlays that Congress may strip away. . . .' G. Gunther & N. Dowling, Cases and Materials on Constitutional Law 106 (8th ed. 1970). But where Congress does so, my objections to public actions are ameliorated by the congressional mandate. Specific statutory grants of standing in such cases alleviate the conditions that make 'judicial forbearance the part of wisdom.' Flast, supra, at 132, 88 S.Ct., at 1969 (Harlan, J., dissenting) (footnote omitted).
*
Livingston used the proposed Art. I, § 9, cl. 7, to combat the idea that the new Congress would be corrupt. He said in part:
'You will give up to your state legislatures everything dear and valuable; but you will give no power to Congress, because it may be abused; you will give them no revenue, because the public treasures may be squandered. But do you not see here a capital check? Congress are to publish, from time to time, an account of their receipts and expenditures. These may be compared together; and if the former, year after year, exceed the latter, the corruption will be detected, and the people may use the constitutional mode of redress. The gentleman admits that corruption will not take place immediately: its operations can only be conducted by a long series and a steady system of measures. These measures will be easily defeated, even if the people are unapprised of them. They will be defeated by that continual change of members, which naturally takes place in free governments, arising from the disaffection and inconstancy of the people. A changeable assembly will be entirely incapable of conducting a system of mischief; they will meet with obstacles and embarrassments on every side.' 2 Elliot, supra at 345—346.
1
'No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.'
2
Jaffe, The Citizen as Litigant in Public Actions: The Non-Hohfeldian or Ideological Plaintiff, 116 U.Pa.L.Rev. 1033 (1968). See Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16 (1913).
3
The Court has often indicated that, except in the most extraordinary circumstances, it will not consider questions that have not been presented in the petition for certiorari. E.g., General Talking Pictures Corp. v. Western Electric Co., 304 U.S. 175, 177—178, 58 S.Ct. 849, 850—851, 82 L.Ed. 1273 (1938); National Licorice Co. v. NLRB, 309 U.S. 350, 357 n. 2, 60 S.Ct. 569, 574, 84 L.Ed. 799 (1940); Irvine v. California, 347 U.S. 128, 129, 74 S.Ct. 381, 98 L.Ed. 561 (1954) (opinion of Jackson, J.); Mazer v. Stein, 347 U.S. 201, 206 n. 5, 74 S.Ct. 460, 464, 98 L.Ed. 630 (1954).
4
The District Court dismissed the complaint on the alternative grounds of lack of standing and nonjusticiability (because the court thought that the question involved was a political one). The Court of Appeals reversed the standing holding, but concluded that the justiciability issue was so intertwined with the merits that it should await consideration of the merits by the District Court on remand. The Government then brought the case here on petition for certiorari.
| 89
|
418 U.S. 208
94 S.Ct. 2925.
41 L.Ed.2d 706
James R. SCHLESINGER, Secretary of Defense, et al., Petitioners,v.RESERVISTS COMMITTEE TO STOP THE WAR et al.
No. 72—1188.
Argued Jan. 14, 1974.
Decided June 25, 1974.
Syllabus
Respondents—an association of present and former members of the Armed Forces Reserve opposing United States involvement in Vietnam, and five association members who were United States citizens and taxpayers—brought a class action on behalf, inter alia, of all United States citizens and taxpayers against petitioners, the Secretary of Defense and the three Service Secretaries, challenging the Reserve membership of Members of Congress as violating the Incompatibility Clause of Art. I, § 6, cl. 2, of the Constitution, which provides that 'no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.' The District Court held that respondents had standing to sue as citizens but not as taxpayers, and on the merits granted partial relief. The Court of Appeals affirmed. Held:
1. Respondents had no standing to sue as citizens, since the claimed nonobservance of the Incompatibility Clause which they assert deprives citizens of the faithful discharge of the legislative duties of reservist Members of Congress implicates only the generalized interest of all citizens in constitutional governance and is thus merely an abstract injury rather than the concrete injury that is essential to satisfy Art. III's case or controversy' requirement. Pp. 216—227.
2. Respondents also lacked standing to sue as taxpayers, since they failed to establish the required 'logical nexus between the (taxpayer) status asserted and the claim sought to be adjudicated.' Flast v. Cohen, 392 U.S. 83, 102, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947. Pp. 227—228.
Reversed and remanded.
Solicitor Gen. Robert H. Bork, for petitioners.
William A. Dobrovir, Washington, D.C., for respondents.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari, sub nom. Richardson v. Reservists Committee to Stop the War, 411 U.S. 947, 93 S.Ct. 1927, 36 L.Ed.2d 408 (1973), to review the judgment of the Court of Appeals affirming, without opinion, the District Court's partial summary judgment for respondents declaring that 'Article I, Section 6, Clause 2 of the Constitution renders a member of Congress ineligible to hold a commission in the Armed Forces Reserve during his continuance in office.' Reservists Committee to Stop the War v. Laird, 323 F.Supp. 833, 843 (DC1971). We hold that respondents do not have standing to sue as citizens or taxpayers. The judgment of the Court of Appeals is therefore reversed.
2
* Article I, § 6, cl. 2, of the Federal Constitution provides:
3
'No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.'
4
The Constitution thereby makes Members of Congress ineligible for appointment to certain offices through the limitation of the Ineligibility Clause, and prohibits Members of Congress from holding other offices through the latter limitation, the Incompatibility Clause.
5
Respondents, the Reservists Committee to Stop the War and certain named members thereof,1 challenged the Reserve membership of Members of Congress2 as being in violation of the Incompatibility Clause. They commenced a class action in the District Court against petitioners, the Secretary of Defense and the three Service Secretaries, seeking (1) and order in the nature of mandamus directed to petitioners requiring them to strike from the rolls of the Reserves all Members of Congress presently thereon, to discharge any member of the Reserves who subsequently became a Member of Congress, and to seek to reclaim from Members and former Members of Congress any Reserve pay said Members received while serving as Members of Congress, (2) a permanent injunction preventing petitioners from placing on the rolls of the Reserves any Member of Congress while serving in Congress, and (3) a declaration that membership in the Reserves is an office under the United States prohibited to Members of Congress by Art. I, § 6, cl. 2, and incompatible with membership in the Congress.
6
Respondents sought the above relief on behalf of four classes of persons. The Committee and the individual respondents sought to represent the interests of (1) all persons opposed to United States military involvement in Vietnam and purporting to use lawful means, including communication with and persuasion of Members of Congress, to end that involvement. The individual respondents alone sought to represent the interests of (2) all officers and enlisted members of the Reserves who were not Members of Congress, (3) all taxpayers of the United States, and (4) all citizens of the United States. The interests of these four classes were alleged to be adversely affected by the Reserve membership of Members of Congress in various ways.
7
As relevant here, citizens and taxpayers were alleged in respondents' complaint to have suffered injury because Members of Congress holding a Reserve position in the Executive Branch were said to be subject to the possibility of undue influence by the Executive Branch,3 in violation of the concept of the independence of Congress implicit in Art. I of the Constitution. Reserve membership was also said to place upon Members of Congress possible inconsistent obligations which might cause them to violate their duty faithfully to perform as reservists or as Members of Congress. Reserve membership by Members of Congress thus, according to respondents' complaint,
8
'deprives or may deprive the individual named plaintiffs and all other citizens and taxpayers of the United States of the faithful discharge by members of Congress who are members of the Reserves of their duties as members of Congress, to which all citizens and taxpayers are entitled.' Pet. for Cert. 46.
9
Petitioners filed a motion to dismiss respondents' complaint on the ground that respondents lacked standing to bring the action, and because the complaint failed to state a cause of action, upon which relief could be granted. The latter ground was based upon the contention that the Incompatibility Clause sets forth a qualification for Membership in the Congress, U.S.Const., Art. I, § 5, cl. 1, not a qualification for a position in the Executive Branch. The power to judge that qualification was asserted to rest exclusively with Congress, not the courts, under Powell v. McCormack, 395 U.S. 486, 550, 89 S.Ct. 1944, 1979, 23 L.Ed.2d 491 (1969).
10
The District Court concluded that it first had to determine whether respondents had standing to bring the action and, without citation to authority, stated:
11
'In recent years the Supreme Court has greatly expanded the concept of standing and in this Circuit the concept has now been almost completely abandoned.' 323 F.Supp., at 839.
12
The court then held that of the four classes respondents sought to represent, '(o)nly their status as citizens' gave them standing to sue in this case. Id., at 840. The District Court denied standing to respondents as reservists, as opponents of our Vietnam involvement, and as taxpayers. The court acknowledged that there were very few instances in which the assertion of 'merely the undifferentiated interest of citizens,' ibid., would be sufficient, but was persuaded to find that interest sufficient here by several considerations it found present in the nature of the dispute before it and by the asserted abandonment of standing limitations by the Court of Appeals, whose decisions were binding on the District Court.
13
In response to petitioners' contention that the Incompatibility Clause sets forth a qualification only for Membership in the Congress, which Congress alone might judge, the District Court characterized the issue as whether respondents presented a nonjusticiable 'political question,' resolution of which by the text of the Constitution was committed to the Congress under Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962). The court held that the failure of the Executive Branch to remove reservist Members of Congress from their Reserve positions was justiciable.
14
Having resolved the issues of standing and political question in favor of respondents, the District Court held on the merit that a commission in the Reserves is an 'Office under the United States' within the meaning of the Incompatibility Clause. On the basis of the foregoing, the court in its final order granted partial summary judgment for respondents by declaring that the Incompatibility Clause renders a Member of Congress ineligible, during his continuance in office, to hold a Reserve 'commission'; the court denied such parts of respondents' motion for summary judgment which sought a permanent injunction and relief in the nature of mandamus.4 323 F.Supp., at 843.
15
The Court of Appeals affirmed the judgment of the District Court in an unpublished opinion 'on the basis of the memorandum opinion of the District Court.' The Court of Appeals added that it was 'also of the view that (respondents) have the requisite standing and that their claim is judicially enforceable under the rationale of' Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), and Baker v. Carr, supra. Petitioners present three questions for review: (1) whether respondents have standing, 'either as citizens or as federal taxpayers,' to bring this claim, (2) whether respondents' claim presents a 'political question' not subject to judicial review, and (3) whether 'membership' in the Reserves constitutes an 'Office under the United States' within the meaning of the Incompatibility Clause. Pet. for Cert. 2.
II
A.
16
In Flast v. Cohen, supra, 392 U.S., at 95, 88 S.Ct., at 1949, the Court noted that the concept of justiciability, which expresses the jurisdictional limitations imposed upon federal courts by the 'case or controversy' requirement of Art. III, embodies both the standing and political question doctrines upon which petitioners in part rely. Each of these doctrines poses a distinct and separate limitation, Powell v. McCormack, 395 U.S., at 512, 89 S.Ct., at 1959; Baker v. Carr, supra, 369 U.S., at 198, 82 S.Ct., at 699, so that either the absence of standing or the presence of a political question suffices to prevent the power of the federal judiciary from being invoked by the complaining party. The more sensitive and complex task of determining whether a particular issue presents a political question causes courts, as did the District Court here, to turn intially, although not invariably,5 to the question of standing to sue. In light of the District Court's action we turn to petitioners' contention that respondents lacked standing to bring the suit. Our conclusion that the District Court erred in holding that respondents had standing to sue as United States citizens, but was correct in denying respondents' standing as taxpayers, eliminates the need to consider the other questions presented by petitioners.
17
The District Court considered standing as to each of the four capacities in which respondents brought suit; it rejected standing as to three of the four, holding that respondents could sue only as citizens. The Court of Appeals' judgment of affirmance, based solely upon the opinion of the District Court, did not alter the District Court's ruling on standing. The standing question presented in the petition for certiorari is addressed to the District Court's holding on citizen standing and seeks to add the question whether respondents also had standing as taxpayers.6 Respondents do not contend that the District Court erred in denying standing to them in the other two capacities in which they sought to proceed, i.e., as opponents of American military involvement in Vietnam, and as reservists. We therefore proceed to consideration of respondents' standing only as citizens and taxpayers.
B
Citizen Standing
18
To have standing to sue as a class representative it is essential that a plaintiff must be a part of that class, that is, he must possess the same interest and suffer the same injury shared by all members of the class he represents. Indiana Employment Security Division v. Burney, 409 U.S. 540, 93 S.Ct. 883, 35 L.Ed.2d 62 (1973); Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962). In granting respondents standing to sue as representatives of the class of all United States citizens, the District Court therefore necessarily—and correctly—characterized respondents' interest as 'undifferentiated' from that of all other citizens.
19
The only interest all citizens share in the claim advanced by respondents is one which presents injury in the abstract. Respondents seek to have the Judicial Branch compel the Executive Branch to act in conformity with the Incompatibility Clause, an interest shared by all citizens. The very language of respondents' complaint, supra, at 212, reveals that it is nothing more than a matter of speculation whether the claimed nonobservance of that Clause deprives citizens of the faithful discharge of the legislative duties of reservist Members of Congress. And that claimed nonobservance, standing alone, would adversely affect only the generalized interest of all citizens in constitutional governance, and that is an abstract injury.7 The Court has previously declined to treat 'generalized grievances' about the conduct of Government as a basis for taxpayer standing. Flast v. Cohen, 392 U.S., at 106, 88 S.Ct., at 1955. We consider now whether a citizen has standing to sue under such a generalized complaint.
20
Our analysis begins with Baker v. Carr, supra, where the Court stated that the gist of the inquiry must be whether the complaining party has
21
'Alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.' Id., 369 U.S., at 204, 82 S.Ct., at 703.
22
Although dealing with a case of claimed taxpayer standing, Flast v. Cohen, supra, gave further meaning to the need for a 'personal stake' in noting that it was meant to assure that the complainant seeking to adjudicate his claim was the 'proper party' to present the claim 'in an adversary context and in a form historically viewed as capable of judicial resolution.' 392 U.S., at 100, 101, 88 S.Ct., at 1953. In the circumstances of Flast, the Court held that the taxpayer-complainant before it had established a relationship between his status as a taxpayer and his claim under the Taxing and Spending Clause sufficient to give assurance
23
'that the questions will be framed with the necessary specificity, that the issues will be contested with the necessary adverseness and that the litigation will be pursued with the necessary vigor to assure that the constitutional challenge will be made in a form traditionally thought to be capable of judicial resolution.' Id., at 106, 88 S.Ct., at 1956.
24
While Flast noted that the 'case or controversy' limitation on the federal judicial power found in Art. III is a 'blend of constitutional requirements and policy considerations,' id., at 97, 88 S.Ct. at 1951, the Court, subsequently, in the context of judicial review of regulatory agency action held that whatever else the 'case or controversy' requirement embodied, its essence is a requirement of 'injury in fact.' Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S., 150, 152, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970). Although we there noted that the categories of judicially cognizable injury were being broadened, id., at 154, 90 S.Ct., at 830, we have more recently stressed that the broadening of categories 'is a different matter from abandoning the requirement that the party seeking review must himself have suffered an injury.' Sierra Club v. Morton, 405 U.S. 727, 738, 92 S.Ct. 1361, 1368, 31 L.Ed.2d 636 (1972). And, in defining the nature of that injury, we have only recently stated flatly: 'Abstract injury is not enough.' O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974).
25
Ex parte Le vitt, 302 U.S. 633, 58 S.Ct. 1, 82 L.Ed. 493 (1937), was the only other occasion in which the Court faced a question under Art. I, § 6, cl. 2, although that challenge was made under the Ineligibility Clause, not the Incompatibility Clause involved here. There a petition was filed in this Court seeking an order to show cause why one of the Justices should not be disqualified to serve as an Associate Justice. The petition asserted that the appointment and confirmation of the Justice in August 1937 was unlawful because the Act of March 1, 1937, permitting Justices to retire at full salary after a period of specified service, thereby increased the emoluments of the office and that the statute was enacted while the challenged Justice was a Senator. The appointment of the Justice by the President and his confirmation by the Senate were thus said to violate the Ineligibility Clause which provides:
26
'No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States . . . the Emoluments whereof shall have been encreased during such time . . ..'
The Court held:
27
'The motion papers disclose no interest upon the part of the petitioner other than that of a citizen and a member of the bar of this Court. That is insufficient. It is an established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained, or is immediately in danger of sustaining, a direct injury as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public.' 302 U.S., at 634, 58 S.Ct., at 1.8
28
The Court has today recognized the continued vitality of Le vitt,9 United States v. Richardson, 418 U.S. 166, at 176—179, 94 S.Ct. 2940, at 2946—2948, 41 L.Ed.2d 678; see also Laird v. Tatum, 408 U.S. 1, 13, 92 S.Ct. 2318, 2325, 33 L.Ed.2d 154 (1972). We reaffirm Le vitt in holding that standing to sue may not be predicated upon an interest of the kind alleged here which is held in common by all members of the public, because of the necessarily abstract nature of the injury all citizens share. Concrete injury, whether actual or threatened, is that indispensable element of a dispute which serves in part to cast it in a form traditionally capable of judicial resolution. It adds the essential dimension of specificity to the dispute by requiring that the complaining party have suffered a particular injury caused by the action challenged as unlawful. This personal stake is what the Court has consistently held enables a complainant authoritatively to present to a court a complete perspective upon the adverse consequences flowing from the specific set of facts undergirding his grievance. Such authoritative presentations are an integral part of the judicial process, for a court must rely on the parties' treatment of the facts and claims before it to develop its rules of law.10 Only concrete injury presents the factual context within which a court, aided by parties who argue within the context, is capable of making decisions.
29
Moreover, when a court is asked to undertake constitutional adjudication, the most important and delicate of tis responsibilities, the requirement of concrete injury further serves the function of insuring that such adjudication does not take place unnecessarily. This principle is particularly applicable here, where respondents seek an interpretation of a constitutional provision which has never before been construed by the federal courts. First, concrete injury removes from the realm of speculation whether there is a real need to exercise the power of judicial review in order to protect the interests of the complaining party.
30
'The desire to obtain (sweeping relief) cannot be accepted as a substitute for compliance with the general rule that the complainant must present facts sufficient to show that his individual need requires the remedy for which he asks.' McCabe v. Atchison, T. & S.F.R. Co., 235 U.S. 151, 164, 35 S.Ct. 69, 72, 59 L.Ed. 169 (1914).
31
Second, the discrete factual context within which the concrete injury occurred or is threatened insures the framing of relief no broader than required by the precise facts to which the court's ruling would be applied. This is especially important when the relief sought produces a confrontation with one of the coordinate branches of the Government; here the relief sought would, in practical effect, bring about conflict with two coordinate branches.
32
To permit a complainant who has no concrete injury to require a court to rule on important constitutional issues in the abstract would create the potential for abuse of the judicial process, distort the role of the Judiciary in its relationship to the Executive and the Legislature and open the Judiciary to an arguable charge of providing 'government by injunction.'
33
'The powers of the federal judiciary will be adequate for the great burdens placed upon them only if they are employed prudently, with recognition of the strengths as well as the hazards that go with our kind of representative government.' Flast v. Cohen, 392 U.S., at 131, 88 S.Ct., at 1968 (Harlan, J., dissenting).11
34
Our conclusion that there is no citizen standing here, apart from being in accord with all other federal courts of appeals that have considered the question, until the Court of Appeals' holding now under review,12 is also consistent with the recent holdings of this Court. It is one thing for a court to hear an individual's complaint that certain specific government action will cause that person private competitive injury, Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), or a complaint that individual enjoyment of certain natural resources has been impaired by such action, United States v. SCRAP, 412 U.S. 669, 687, 93 S.Ct. 2405, 2415, 37 L.Ed.2d 254 (1973), but it is another matter to allow a citizen to call on the courts to resolve abstract questions.13 The former provides the setting for a focused consideration of a concrete injury. In the latter, although allegations assert an arguable conflict with some limitation of the Constitution, it can be only a matter of speculation whether the claimed violation has caused concrete injury to the particular complainant.
35
Finally, the several considerations advanced by the District Court in support of respondents' standing as citizens do not militate against our conclusion that it was error to grant standing to respondents as citizens. First, the District Court acknowledged that any injury resulting from the reservist status of Members of Congress was hypothetical, but stressed that the Incompatibility Clause was designed to prohibit such potential for injury.14 323 F.Supp., at 840. This rationale fails, however, to compensate for the respondents' failure to present a claim under that Clause which alleges concrete injury. The claims of respondents here, like the claim under the Ineligibility Clause in Le vitt, supra, would require courts to deal with a difficult and sensitive issue of constitutional adjudication on the complaint of one who does not allege 'a personal stake in the outcome of the controversy.' Baker v. Carr, 369 U.S., at 204, 82 S.Ct., at 703. To support standing there must be concrete injury in a form which assures 'the necessary specificity' called for by Flast, 392 U.S., at 106, 88 S.Ct., at 1955, and 'that concrete adverseness . . . upon which the court so largely depends for illumination of difficult constitutional questions.' Baker v. Carr, supra, at 204, 82 S.Ct., at 703. Standing was thus found by premature evaluation of the merits of respondents' complaint.15
36
The District Court next acknowledged this Court's longstanding reluctance to entertain 'generalized grievances about the conduct of government,' Flast v. Cohen, 392 U.S., at 106, 88 S.Ct., at 1956, but distinguished respondents' complaint from such grievances by characterizing the Incompatibility Clause as 'precise (and) self-operative.' 323 F.Supp., at 840. Even accepting that characterization of the Clause it is not an adequate substitute for the judicially cognizable injury not present here. Moreover, that characterization rested, as did the preceding characterization, on an interpretation of the Clause by way of the Court's preliminary appraisal of the merits of respondents' claim before standing was found. In any event, the Ineligibility Clause involved in Le vitt, supra, is no less specific or less 'precise (and) self-operative' than the Incompatibility Clause.
37
The District Court further relied on the fact that the adverse parties sharply conflicted in their interests and views and were supported by able briefs and arguments. Id., at 841. We have no doubt about the sincerity of respondents' stated objectives and the depth of their commitment to them. But the essence of standing.
38
'is not a question of motivation but of possession of the requisite . . . interest that is, or is threatened to be, injured by the unconstitutional conduct.' Doremus v. Board of Education, 342 U.S. 429, 435, 72 S.Ct. 394, 397, 96 L.Ed. 475 (1952).
39
This same theme as to the inadequacy of motivation to support standing is suggested in the Court's opinion in Sierra Club, supra:
40
'But a mere 'interest in a problem,' no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization 'adversely affected' or 'aggrieved' within the meaning of the APA.' 405 U.S., at 739, 92 S.Ct., at 1368.
41
Respondents' motivation has indeed brought them sharply into conflict with petitioners, but as the Court has noted, motivation is not a substitute for the actual injury needed by the courts and adversaries to focus litigation efforts and judicial decision making. Moreover, the evaluation of the quality of the presentation on the merits was a retrospective judgment that could have properly been arrived at only after standing had been found so as to permit the court to consider the merits. A logical corollary to this approach would be the manifestly untenable view that the inadequacy of the presentation on the merits would be an appropriate basis for denying standing.
42
Furthermore, to have reached the conclusion that respondents' interests as citizens were meant to be protected by the Incompatibility Clause because the primary purpose of the Clause was to insure independence of each of the branches of the Federal Government, similarly involved an appraisal of the merits before the issue of standing was resolved. All citizens, of course, share equally an interest in the independence of each branch of Government. In some fashion, every provision of the Constitution was meant to serve the interests of all. Such a generalized interest, however, is too abstract to constitute a 'case or controversy' appropriate for judicial resolution.16 The proposition that all constitutional provisions are enforceable by any citizen simply because citizens are the ultimate beneficiaries of those provisions has no boundaries.
43
Closely linked to the idea that generalized citizen interest is a sufficient basis for standing was the District Court's observation that it was not irrelevant that if respondents could not obtain judicial review of petitioners' action, 'then as a practical matter no one can.' Our system of government leaves many crucial decisions to the political processes. The assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing. See United States v. Richardson, 418 U.S., at 179, 94 S.Ct., at 2947.
C
Taxpayer Standing
44
Consideration of whether respondents have standing to sue as taxpayers raises a different question from whether they may sue as citizens. Flast v. Cohen, supra, established that status as a taxpayer can, under certain limited circumstances, supply the personal stake essential to standing. There, the Court held that, in order to ensure the necessary personal stake, there must be 'a logical nexus between the (taxpayer) status asserted and the claim sought to be adjudicated,' 392 U.S., at 102, 88 S.Ct., at 1953. In Flast, the Court determined that the taxpayer demonstrated such a 'logical nexus' because, (1) he challenged the exercise of 'congressional power under the taxing and spending clause of Art. I, § 8 . . .' and (2) 'the challenged enactment exceed(ed) specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power' under Art. I, § 8. Id., at 102—103, 88 S.Ct., at 1954.
45
Here, the District Court, applying the Flast holding, denied respondents' standing as taxpayers for failure to satisfy the nexus test. We agree with that conclusion since respondents did not challenge an enactment under Art. I, § 8, but rather the action of the Executive Branch in permitting Members of Congress to maintain their Reserve status.17
46
Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded to the District Court for further proceedings consistent with this opinion.
47
It is so ordered.
48
Reversed and remanded.
49
Mr. Justice STEWART, concurring.
50
I agree with the Court that the respondents lack standing to sue either as citizens or taxpayers in this case. Here, unlike United States v. Richardson, 418 U.S. 166, 94 S.Ct. 2940, 41 L.Ed.2d 678 the respondents do not allege that the petitioners have refused to perform an affirmative duty imposed upon them by the Constitution. Nor can there be tax payer standing under Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947, since there is simply no challenge to an exercise of the taxing and spending power.
51
The Court's judgment in this case is wholly consistent with United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254. Standing is not today found wanting because an injury has been suffered by many, but rather because none of the respondents has alleged the sort of direct, palpable injury required for standing under Art. III. Like the plaintiff in Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078, the respondents seek only to air what we described in Flast as 'generalized grievances about the conduct of government.' 392 U.S., at 106, 88 S.Ct., at 1956. Our prior cases make clear that such abstract allegations cannot suffice to confer Art. III standing, and I therefore join the opinion and judgment of the Court.
52
Mr. Justice DOUGLAS, dissenting.
53
The requirement of 'standing' to sue is a judicially created instrument serving several ends: (1) It protects the status quo by reducing the challenges that may be made to it and to its institutions. It greatly restricts the classes of persons who may challenge administrative action. Its application in this case serves to make the bureaucracy of the Pentagon more and more immune from the protests of citizens. (2) It sometimes is used to bar from the courts questions which by the Constitution are left to the other two coordinate branches to resolve, viz., the so-called political question. (3) It is at times a way of ridding court dockets whether of abstract questions or questions involving no concrete controversial issue.
54
Our leading case is Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078, decided in 1923, where a taxpayer challenged the constitutionality of an Act of Congress that gave grants to States which agreed to a plan to reduce maternal and infant mortality. The Court said:
55
'The administration of any statute, likely to produce additional taxation to be imposed upon a vast number of taxpayers, the extent of whose several liability is indefinite and constantly changing, is essentially a matter of public and not of individual concern. If one taxpayer may champion and litigate such a cause, then every other taxpayer may do the same, not only in respect of the statute here under review, but also in respect of every other appropriation act and statute whose administration requires the outlay of public money, and whose validity may be questioned. The bare suggestion of such a result, with its attendant inconveniences, goes for to sustain the conclusion which we have reached, that a suit of this character cannot be maintained. It is of much significance that no precedent sustaining the right to maintain suits like this has been called to our attention, although, since the formation of the government, as an examination of the acts of Congress will disclose, a large number of statutes appropriating or involving the expenditure of moneys for nonfederal purposes have been enacted and carried into effect.' Id., at 487—488, 43 S.Ct., at 601.
56
That ruling had in it an admixture of the 'political question' because, said the Court, the only occasion when the federal court may act is when a federal law results in 'some direct injury suffered or threatened, presenting a justiciable issue.' Id., at 488, 43 S.Ct., at 601. When that element is lacking, judicial intrusion would trespass on powers granted another department of Government. 'To do so would be, not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and coequal department, an authority which plainly we do not possess.' Id., at 488—489, 43 S.Ct., at 601.
57
In 1968—45 years after Frothingham—that case was revisited in Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947, where federal taxpayers sued to enjoin the expenditure of federal funds under an Act of Congress granting financial aid to religious schools. The Court held that those taxpayers did have 'standing' to sue for two reasons. First, because they challenged the exercise of congressional power under the Taxing and Spending Clause of Art. I, § 8, of the Constitution, not the incidental expenditure of tax funds in the administration of an essentially regulatory statute. Second, because the challenged enactment exceeded the limitations imposed upon the exercise of the congressional taxing and spending power. See 392 U.S., at 102—104, 88 S.Ct., at 1953—1955. Therefore, the Court concluded that the taxpayer had 'the requisite personal stake,' id., at 101, 88 S.Ct., at 1953, in the litigation to have 'standing' to sue and the Court went on to hold that the Establishment Clause of the First Amendment 'operates as a specific constitutional limitation upon the exercise by Congress of the taxing and spending power conferred by Art. I, § 8.' 392 U.S., at 104, 88 S.Ct., at 1954.
58
The present case implicates two provisions of the Constitution. Article I, § 8, cl. 1, provides: 'The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States . . ..' Article I, § 6, cl. 2, of the Constitution says that 'no Person holding any Office(1) under the United States, shall be a Member of either House during his Continuance in Office.'
59
The present suit is not one to oust Members from Congress. Rather it is brought against the Secretary of Defense challenging his keeping in the Armed Services of the United States Members of Congress who hold commissions as Reservists.
60
Various Acts of Congress make various appropriations for the services of Reservists. See e.g., Pub.L. 92—145, 85 Stat. 414; Pub.L. 92—545, 86 Stat. 1154.
61
Article I, § 6, cl. 2, is often referred to as the Incompatibility Clause. At the 1783 convention some proposed that Members of Congress be allowed to serve in the Executive Branch,2 others were opposed; Mason apparently represented the majority view when he insisted that 'ineligibility will keep out corruption, by excluding office-hunters.'3 Article I, § 6, cl. 2, like the Establishment Clause of the First Amendment, 'was designed as a specific bulwark against such potential abuses . . . and . . . operates as a specific constitutional limitation upon' such expenditures. Flast v. Cohen, supra, at 104, 88 S.Ct., at 1954.
62
As stated by Hamilton in The Federalist No. 76, p. 476 (H. Lodge ed. 1888), in Incompatibility Clause had a specific purpose: to avoid 'the danger of executive influence upon the legislative body.'
63
While respondents have standing as taxpayers, their citizenship also gives them standing to challenge the appropriation acts financing activities of the Reservists.
64
We tend to overlook the basic political and legal reality that the people, not the bureaucracy, are the sovereign. Our Federal Government was created for the security and happiness of the people. Executives, lawmakers, and members of the Judiciary are inferior in the sense that they are in office only to carry out and execute the constitutional regime.
65
The Preamble of the Constitution states that 'We the People' ordained and established the Constitution.
66
The Declaration of Independence stated that to insure 'certain unalienable Rights,' 'Governments are instituted among Men, deriving their just powers from the consent of the governed' and 'That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it.'
67
The present case does not involve a restructuring of society a procedure left to legislative action in part but mostly to constitutional conventions. All that the citizens in this case seek is to have the Constitution enforced as it is written. It is not a suit to unseat Members of Congress. Any decree that issued would run to the Secretary of Defense to take the challenged reservists off his list.
68
The interest of citizens is obvious. The complaint alleges injuries to the ability of the average citizen to make his political advocacy effective whenever it touches on the vest interests of the Pentagon. It is said that all who oppose the expansion of military influence in our national affairs find they are met with a powerful lobby—the Reserve Officers Association which has strong congressional allies.
69
Whether that is true or not we do not know. So far as the Incompatibility Clause of the Constitution is concerned that contention is immaterial. It is as immaterial to the function of Art. I, § 6, cl. 2, of the Constitution as would be a suggestion that the establishment of a religion under the First Amendment is benign in a given case. What the Framers did in each case was to set up constitutional fences barring certain affiliations, certain kinds of appropriations. Their judgment was that the potential for evil was so great that no appropriations of that character should be made.
70
The interest of citizens in guarantees written in the Constitution seems obvious. Who other than citizens has a better right to have the Incompatibility Clause enforced? It is their interests that the Incompatibility Clause was designed to protect. The Executive Branch under our regime is not a fiefdom or principality competing with the Legislative as another center of power. It operates within a constitutional framework, and it is that constitutional framework that these citizens want to keep intact. That is, in my view, their rightful concern. We have insisted that more than generalized grievances of a citizen be shown, that he must have a 'personal stake in the outcome,' Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663. But that 'personal stake' need not be a monetary one. In Baker v. Carr it was the right to vote, an important badge of citizenship. The 'personal stake' in the present case is keeping the Incompatibility Clause an operative force in the Government by freeing the entanglement of the federal bureaucracy with the Legislative Branch.
71
Ex parte Le vitt, 302 U.S. 633, 58 S.Ct. 1, 82 L.Ed. 493, is not opposed. Le vitt moved in this Court to have it declare the appointment of Mr. Justice Black unconstitutional. He alleged that Mr. Justice Black, as Senator, had voted to increase the 'emoluments' of the office of Associate Justice and was therefore barred from taking office by reason of Art. I, § 6, cl. 2, of the Constitution. The Court denied the motion to file an original action stating:
72
'It is an established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained, or is immediately in danger of sustaining, a direct injury as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public.' 302 U.S., at 634, 58 S.Ct., at 1.
73
The only 'emolument' of office which Mr. Justice Black as Senator had voted to increase was the retirement compensation of federal judges as spelled out in the Act of March 1, 1937, c. 21, 50 Stat. 24. That emolument might never accrue to an appointee for he would first have to serve a designated number of years. It turned out that even though Justice Black served over 34 years he never received any benefits under the Retirement Act. Hence the Court showed wisdom in deciding that Le vitt showed no 'direct injury.' His claim of constitutional violation was remote, speculative, and contingent. The present suit has no such deficiency. It asserts a present, ongoing conflict between the Pentagon's policies and the Incompatibility Clause of the Constitution.
74
The interest of the citizen in this constitutional question is of course, common to all citizens. But as we said in United States v. SCRAP, 412 U.S. 669, 687—688, 93 S.Ct. 2405, 2415—2416, 37 L.Ed.2d 254 'standing is not to be denied simply because many people suffer the same injury. . . . 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.'
75
I would affirm the judgment below.
76
Mr. Justice BRENNAN, dissenting.
77
The 'standing' of a plaintiff to be heard on a claim of invasion of his alleged legally protected right is established, in my view, by his good-faith allegation that 'the challenged action has caused him injury in fact." Barlow v. Collins, 397 U.S. 159, 167—168, 90 S.Ct. 832, 838, 25 L.Ed.2d 192 (1970) (concurring in the result and dissenting). The Court's further inquiry, in each of these cases, into the connection between 'the zone of interests to be protected or regulated by the statute or constitutional guarantee in question,' Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970), and the 'interest sought to be protected by the complainant,' ibid., is relevant, not to 'standing' but, it at all, only to such limitations on exercise of the judicial function as justiciability, see e.g., Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), or reviewability, see, e.g., Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1510, 18 L.Ed.2d 681 (1967).
78
Richardson plainly alleged injury in fact. My Brother STEWART demonstrates this in his analysis of Richardson's claimed right to have the budget of the Central Intelligence Agency published. The claim was not merely that failure to publish was a violation of the Constitution. The claim went further and alleged that this violation deprived Richardson, as an individual, and not as an inseparable part of the citizenry, of a right given him by Art. I, § 9, cl. 7. Moreover, his complaint, properly construed, alleged that the violations caused him injury not only in respect of his right as a citizen to know how Congress was spending the public fisc, but also in respect of his right as a voter to receive information to aid his decision how and for whom to vote. These claims may ultimately fail on the merits, but Richardson has 'standing' to assert them.
79
Similarly, I would hold that respondent Reservists Committee and its members have demonstrated sufficient 'injury in fact' to maintain their suit. Their allegation that they are injured as taxpayers, while at first glance seeming extraordinarily difficult to prove, is neither impossible nor, on the basis of this record, made in bad faith. If the Secretary of Defense takes a contrary position with regard to either of these requirements, it is open to him to move for summary judgment and compel respondents to establish their position. See Barlow, supra, 397 U.S., at 175, 90 S.Ct., at 842. More stringent requirements, such as the Court's demand that these respondents satisfy Flast's 'nexus' requirement, are not appropriate issues for resolution under the rubric of 'standing.' Since I would find the injury-in-fact requirement met by respondents' taxpayer allegation, I have no occasion to reach the question whether respondent Reservists Committee and its members' allegations of injury to their interests as citizens would be sufficient to confer standing under the circumstances of this case.
80
Unlike my Brother STEWART, who distinguishes these two cases, I would find that Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), supports the conclusion that these allegations of injury-in-fact are sufficient to give respondents in both cases 'standing.' Speaking generally of standing, we there said:
81
'The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated. The 'gist of the question of standing' is whether the party seeking relief has 'alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.' Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). In other words, when standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable.' Id., at 99—100, 88 S.Ct., at 1952.
82
The two-pronged test fashioned by Flast was not a qualification upon these general principles but was fashioned solely as a determinant of standing of plaintiffs alleging only injury as taxpayers who challenge alleged violations of the Establishment and Free Exercise Clauses of the First Amendment. See Barlow v. Collins, supra, 397 U.S., at 170—172, 90 S.Ct., at 839—841. The extension of that test to the very different challenges here only produces the confusion evidenced by the differing views of the Flast test expressed in the several opinions filed today in these cases. Outside its proper sphere, as my Brother POWELL soundly observes, that test is not 'a reliable indicator of when a federal taxpayer has standing.' United States v. Richardson, 418 U.S. 166, at 180, 94 S.Ct. 2940, at 2948, 41 L.Ed.2d 678. We avoid that confusion if, as I said in Barlow, supra, 397 U.S., at 176, 90 S.Ct., at 843, we recognize:
83
'(A)lleged injury in fact, reviewability, and the merits pose questions that are largely distinct from one another, each governed by its own considerations. To fail to isolate and treat each inquiry independently of the other two, so far as possible, is to risk obscuring what is at issue in a given case, and thus to risk uninformed, poorly reasoned decisions that may result in injustice. . . .
84
'The risk of ambiguity and injustice can be minimized by cleanly severing, so far as possible, the inquiries into reviewability and the merits from the determination of standing.'
85
Mr. Justice MARSHALL, dissenting.
86
I agree with my Brother DOUGLAS that respondents have standing as citizens to bring this action. I cannot accept the majority's characterization of respondents' complaint as alleging only 'injury in the abstract' and "generalized grievances' about the conduct of the Government.' Ante, at 217. According to their complaint, respondents are present and former members of the various Armed Forces Reserves
87
'organized for the purpose of opposing the military involvement of the United States in Vietnam and of using all lawful means to end that involvement, including efforts by its members individually to persuade the Congress of the United States and all members of the Congress to take all steps necessary and appropriate to end that involvement.'
88
The specific interest which they thus asserted, and which they alleged had been infringed by violations of the Incompatibility Clause, though doubtless widely shared, is certainly not a 'general interest common to all members of the public.' Ex parte Le vitt, 302 U.S. 633, 634, 58 S.Ct. 1, 82 L.Ed. 493 (1937). Not all citizens desired to have the Congress take all steps necessary to terminate American involvement in Vietnam, and not all citizens who so desired sought to persuade members of Congress to that end.
89
Respondents nevertheless ahd a right under the First Amendment to attempt to persuade Congressmen to end the war in Vietnam. And respondents have alleged a right, under the Incompatibility Clause, to have their arguments considered by Congressmen not subject to a conflict of interest by virtue of their positions in the Armed Forces Reserves. Respondents' complaint therefore states, in my view, a claim of direct and concrete injury to a judicially cognizable interest. It is a sad commentary on our priorities that a litigant who contends that a violation of a federal statute has interfered with his aesthetic appreciation of natural resources can have that claim heard by a federal court, see United States v. SCRAP, 412 U.S. 669, 687, 93 S.Ct. 2405, 2415, 37 L.Ed.2d 254 (1973), while one who contends that a violation of a specific provision of the United States Constitution has interfered with the effectiveness of expression protected by the First Amendment is turned away without a hearing on the merits of his claim.
90
I respectfully dissent.
1
The Committee, located in California, is a national unincorporated association of present and former officers and enlisted members of the Reserves, organized for the purpose of opposing the military involvement of the United States in Vietnam and of using all lawful means to end that involvement, including efforts by its members individually to take all steps necessary and appropriate to end that involvement. The five individual respondents were all members of the Committee, residents of California, and United States citizens and taxpayers. At the time suit was filed, four of the individuals were in active Ready Reserve status; the status of the fifth, then the Committee co-chairman, was unspecified.
2
At the time suit was filed, 130 Members of the 91st Congress were also members of the Reserves, which are divided into Ready, Standby, and Retired components. By the end of the 92d Congress, 119 Members were reservists. As of November 2, 1973, the 93d Congress has seen the number of its reservists reduced to 107, all but one of whom are commissioned officers, App. 5, and none of whom can occupy the Ready Reserve status of the individual respondents, supra, n. 1. Dept. of Defense Directive 1200.7 § v, c. 2 (July 2, 1970); 32 CFR § 125.4(c)(2). Of the 107, 20 (including the one enlisted man) are in the active, and 12 in the inactive, Standby Reserve; and 73 are in the Retired Reserve, 16 of whom receive retirement pay. Two other Members are in the Army National Guard, and thus in the Ready Reserve, 10 U.S.C. § 269(b), but since the governors of the various States control appointments to offices in the Guard, petitioners could not provide relief regarding such reservists. The judgment of the District Court did not therefore extend to this category of reservist. 233 F.Supp. 833, 838 n. 3 (DC 1971).
3
Respondents appear to have had reference in part to pressure that conceivably could be applied to reservist Members of Congress through such offices as the President's power to call reservists to active duty without their consent, 10 U.S.C. §§ 672 675, or his power to discharge commissioned reservists, who serve only at his pleasure. 10 U.S.C. § 593.
4
Respondents did not, in the Court of Appeals, or by cross-petition here challenged the District Court's denial of injunctive and mandamus relief. In light of the ground for our disposition of the case, we need not and do not address ourselves to the validity or scope of the District Court's ruling on the merits of respondents' claim, or the relief it granted.
5
The lack of a fixed rule as to the proper sequence of judicial analysis of contentions involving more than one facet of the concept of justiciability was recently exhibited by the Court of Appeals for the Second Circuit, which bypassed a determination on standing to rule that a claim was not justiciable because it presented a political question:
'(T)he standing of a party need not come into question if a court determines that for other reasons the issue raised before the bench is non-justiciable.'
That court thus held in effect that if no justiciable question is presented no one has standing. DaCosta v. Laird, 471 F.2d 1146, 1152 (2 Cir. 1973). See also Sierra Club v. Morton, 405 U.S. 727, 731, 92 S.Ct. 1361, 1364, 31 L.Ed.2d 636 (1972); Flast v. Cohen, 392 U.S. 83, 100, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968).
6
The Court of Appeals did not more than affirm the judgment of the District Court, including the latter's denial of respondents' standing as taxpayers. Petitioners may, however, have sought to raise the issue of taxpayer standing in this Court because of the ambiguous reference in the court of Appeals' judgment of affirmance to Flast v. Cohen, supra, a taxpayer-standing case.
7
The generalized nature of respondents' claim is revealed by the scope of relief sought, i.e., removal of all reservist Members of Congress from Reserve status rather than the removal of only those reservist Members who manifested by their actions that they were influenced by their Reserve status to act adversely to respondents' interest.
8
The Court cited a number of cases in support of its holding, nearly all of which contained language similar to that quoted in the text. See Frothingham v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078 (1923) (insufficient for a party to show 'merely that he suffers in some indefinite way in common with people generally'); Fairchild v. Hughes, 258 U.S. 126, 129 130, 42 S.Ct. 274, 275, 66 L.Ed. 499 (1922) ('Plaintiff has only the right, possessed by every citizen, to require that the Government be administered according to law and that the public moneys be not wasted. Obviously this general right does not entitle a private citizen to institute in the federal courts a suit'); Tyler v. Judges of Court of Registration, 179 U.S. 405, 406, 21 S.Ct. 206, 207, 45 L.Ed. 252 (1900) ('even in a proceeding which he prosecutes for the benefit of the public . . . (the plaintiff) must generally aver an injury peculiar to himself, as distinguished from the great body of his fellow citizens'). See also Giles v. Harris, 189 U.S. 475, 486, 23 S.Ct. 639, 642, 47 L.Ed. 909 (1903) (Holmes, J.) ('The plaintiff alleges that the whole registration scheme of the Alabama constitution is a fraud upon the Constitution of the United States, and asks us to declare it void. But of course he could not maintain a bill for a mere declaration in the air'). Cf. Newman v. Frizzell, 238 U.S. 537, 550, 35 S.Ct. 881, 884, 59 L.Ed. 1446 (1915).
9
The Court has also recently cited with approval two of the principal cases relied upon in Ex parte Le vitt, 302 U.S. 633, 58 S.Ct. 1, 82 L.Ed. 493 (1937). Frothingham v. Mellon, supra, was used for support in O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974), as was Fairchild v. Hughes, supra, used in Baker v. Carr, 369 U.S. 186, 208, 82 S.Ct. 691, 705, 7 L.Ed.2d 663 (1962).
10
This is in sharp contrast to the political processes in which the Congress can initiate inquiry and action, define issues and objectives, and exercise virtually unlimited power by way of hearings and reports, thus making a record for plenary consideration and solutions. The legislative function is inherently general rather than particular and is not intended to be responsive to adversaries asserting specific claims or interests peculiar to themselves.
11
We have expressed apprehension about claims of standing based on 'mere 'interest in a problem." See, e.g., Sierra Club, 405 U.S., at 739, 92 S.Ct., at 1368. Earlier cases of the Court evidenced comparable concern. See, e.g., Newman v. Frizzell, 238 U.S., at 552, n. 8, 35 S.Ct., at 885.
12
Lamm v. Volpe, 449 F.2d 1202, 1204 (CA10 1971); Pietsch v. President of United States, 434 F.2d 861, 863 (CA2 1970) (Clark, J.); Troutman v. Shriver, 417 F.2d 171, 174 (CA5 1969) (citing Le vitt, supra); Velvel v. Nixon, 415 F.2d 236, 239 (CA10 1969); Pauling v. McElroy, 107 U.S.App.D.C. 372, 374, 278 F.2d 252, 254 (1960); cf. Sharrow v. Brown, 447 F.2d 94, 97 (CA2 1971). And aside from the decision under review, the only other opinion that appears to have ruled otherwise is Atlee v. Laird, 339 F.Supp. 1347 (ED Pa.1972), which relied upon the decision of the District Court here. Id., at 1357 n. 8.
13
The Court of Appeals' reliance on Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), is inapposite. United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973), pointed out that a personal stake in a fraction of a vote in Baker v. Carr was sufficient to support standing. Id., at 689 n. 14, 93 S.Ct., at 2417. The injury asserted in Baker was thus a concrete injury to fundamental voting rights, as distinguished from the abstract injury in nonobservance of the Constitution asserted by respondents as citizens.
In Baker v. Carr, the Court cited with approval the early case of Liverpool, N.Y. & Phila. S.S. Co. v. Comm'rs of Emigration, 113 U.S. 33, 5 S.Ct. 352, 28 L.Ed. 899 (1885), where it was held that a federal court can adjudge rights only 'in actual controversies.' Id., at 39, 5 S.Ct., at 355.
14
The District Court made analogy to conflict-of-interest statutes which, it said, are directed at avoiding circumstances of potential, not actual, impropriety. We have no doubt that if the Congress enacted a statute creating such a legal right, the requisite injury for standing would be found in an invasion of that right. O'Shea v. Littleton, 414 U.S., at 493 n. 2, 94 S.Ct., at 675; Linda R.S. v. Richard D., 410 U.S. 614, 617 n. 3, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 154, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970). But to satisfy the Art. III prerequisite the complaining party would still be required to allege a specific invasion of that right suffered by him. Standing could not be found—as it is not here—in a citizen who alleged no more than the right of all other citizens to have government conducted without what he perceived, without himself having suffered concrete harm, to be proscribed conflicts of interest.
15
Looking 'to the substantive issues' which Flast stated to be both 'appropriate and necessary' in relation to taxpayer standing was for the express purpose of determining 'whether there is a logical nexus between the (taxpayer) status asserted and the claim sought to be adjudicated.' 392 U.S., at 102, 88 S.Ct., at 1953. This step is not appropriate on a claim of citizen standing since the Flast nexus test is not applicable where the taxing and spending power is not challenged. Hence there was no occasion for the District Court of the Court of Appeals to reach or evaluate what it saw as the merits of respondents' complaint.
16
Satisfaction of the Data Processing 'zone of interest' requirement seemingly relied upon to find citizen standing does not support such standing for two reasons: first, that case involved judicial review under the Administrative Procedure Act of regulatory agency action alleged to have caused private competitive injury; second, Data Processing required a showing of injury in fact, in addition to the 'zone of interest' requirement. Until a judicially cognizable injury is shown no other inquiry is relevant to consideration of citizen standing.
17
As noted earlier, supra, at 211, respondents requested the District Court to compel petitioners to seek to reclaim Reserve pay received by reservist Members of Congress. Such relief would follow from the invalidity of Executive action in paying persons who could not lawfully have been reservists, not from the invalidity of the statutes authorizing pay to those who lawfully were Reservists.
1
I agree with the conclusion of the House Judiciary Committee, H.R.Rep.No.885, 64th Cong., 1st Sess. (1916), that a commission in the National Guard is an 'office' in the constitutional sense. A commission in the Reserves is not distinguishable. See United States v. Hartwell, 6 Wall. 385, 18 L.Ed. 830.
2
See 2 M. Farand, The Records of the Federal Convention of 1787 pp. 283—290 (1911).
3
Id., at 491.
| 89
|
418 U.S. 506
94 S.Ct. 2707
41 L.Ed.2d 912
Dominick CODISPOTI and Herbert Langnes, Petitioners,v.State of PENNSYLVANIA. Daniel T. TAYLOR, III, Petitioner, v. John P. HAYES, Judge, Jefferson Circuit Court, Criminal Branch, Second Division.
Nos. 73—5615, 73—473.
Supreme Court of the United States
June 26, 1974
Robert L. Eberhardt, Pittsburgh, Pa., for respondent, pro hac vice, by special leave of Court.
Mr. Justice WHITE delivered the opinion of the Court.**
1
In December 1966, petitioners Dominick Codispoti and Herbert Langnes were codefendants with Richard Mayberry in a criminal trial ending in a verdict of guilty. Each acted as his own counsel, although legal advice was available from appointed counsel. At the conclusion of the trial, the judge pronounced Mayberry guilty of 11 contempts committed during trial and sentenced him to one to two years for each contempt. Codispoti was given like sentences for each of seven separate contempts. Langnes was sentenced to one to two years on each of six separate citations. Mayberry's total sentence was thus 11 to 22 years, Codispoti's seven to 14 years, and Langnes' six to 12 years. The contempt convictions were affirmed by the Pennsylvania Supreme Court. This Court granted Mayberry's petition for certiorari, 397 U.S. 1020, 90 S.Ct. 1266, 25 L.Ed.2d 530, and vacated the judgment of the Pennsylvania court, directing that 'on remand another judge, not bearing the sting of these slanderous remarks and having the impersonal authority of the law, (sit) in judgment on the conduct of petitioner as shown by the record.' Mayberry v. Pennsylvania, 400 U.S. 455, 466, 91 S.Ct. 499, 505, 27 L.Ed.2d 532 (1971).
2
The contempt charges against Mayberry and petitioners were then tried in separate proceedings before another trial judge.1 Codispoti's demand for a jury was denied. He also moved to subpoena witnesses 'to prove that my actions did not disrupt the proceedings, and I intend to prove that my actions (sic) was not contemptuous, that it was merely an answer to the provocation made by the presiding Judge.' App. 47. This motion was also denied, the court remarking that 'this is an issue between the Court and you, and the record will speak for the Court, and you and counsel can speak for yourself.' Ibid. The trial then proceeded, the State offering into evidence the relevant portions of the transcript of the 1966 criminal proceedings in the course of which the alleged contempts occurred. The State then rested. Codispoti neither testified nor called witnesses. The court found that he had committed the seven contemptuous acts as charged and sentenced him to six months in prison for each of six contempts and a term of three months for another, all of these sentences to run consecutively.
3
Petitioner Langnes' trial followed a very similar course.2 He was found guilty of six separate contempts and sentenced to five terms of six months each and one term of two months, all to be served consecutively.
4
The trial court filed an opinion stating that 'the only points at issue are the validity of the sentences. The question of guilt of contemptuous conduct has been confirmed by both the Supreme Court of Pennsylvania . . . and by the U.S. Supreme Court . . ., therefore testimony at this hearing was limited to the record.' App. 35. The court also held that petitioners were not entitled to a jury trial
5
'because the questions of guilt to which the juries' decisions would be limited had already been adjudicated adversely to the Defendants by two appellate courts. Furthermore, in the instant cases no term of imprisonment in excess of six months was imposed for any one offense. The offenses for which sentences were imposed occurred at different times and on different dates.' Id., at 36 (footnote omitted).
6
The Pennsylvania Supreme Court affirmed without opinion, one justice dissenting on the ground that petitioners were entitled to a jury trial. 453 Pa. 619, 306 A.2d 294. We granted certiorari limited to those questions raising the issue whether petitioners should have been afforded a jury trial. 414 U.S. 1063, 94 S.Ct. 569, 38 L.Ed.2d 468 (1973).3
7
* In Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), the Court held that the Fourteenth Amendment guaranteed to defendants in state criminal trials the right to jury trial provided in the Sixth Amendment. In a companion case, Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968), the Court held that while petty contempts, like other petty crimes, could be tried without a jury, serious criminal contempts had to be tried with a jury if the defendant insisted on this mode of trial. Although the judgment about the seriousness of the crime is normally heavily influenced by the penalty authorized by the legislature, the Court held that where no legislative penalty is specified and sentence is left to the discretion of the judge, as is often true in the case of criminal contempt, the pettiness or seriousness of the contempt will be judged by the penalty actually imposed. Finally, the Court recognized that sentences up to six months could be imposed for criminal contempt without guilt or innocence being determined by a jury, but a conviction for criminal contempt in a nonjury trial could not be sustained where the penalty imposed was 24 months in prison.
8
Since that time, our decisions have established a fixed dividing line between petty and serious offenses: those crimes carrying a sentence of more than six months are serious crimes and those carrying a sentence of six months or less are petty crimes. Frank v. United States, 395 U.S. 147, 149—150, 89 S.Ct. 1503, 1505 1506, 23 L.Ed.2d 162 (1969); Baldwin v. New York, 399 U.S. 66, 69, 90 S.Ct. 1886, 1888, 26 L.Ed.2d 437 (1970).4 Under these cases, we plainly cannot accept petitioners' argument that a contemnor is entitled to a jury trial simply because a strong possibility exists that he will face a substantial term of imprisonment upon conviction, regardless of the punishment actually imposed. See Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897. Our cases, however, do not expressly address petitioners' remaining argument that they were entitled to jury trials because the prison sentences imposed after post-trial convictions for contemptuous acts during trial were to be served consecutively and, although each was no more than six months, aggregated more than six months in jail.5
II
9
There are recurring situations where the trial judge, to maintain order in the courtroom and the integrity of the trial process in the face of an 'actual obstruction of justice,' In re McConnell, 370 U.S. 230, 236, 82 S.Ct. 1288, 1292, 8 L.Ed.2d 434 (1962); see also In re Little, 404 U.S. 553, 555, 92 S.Ct. 659, 660, 30 L.Ed.2d 708 (1972), convicts and sentences the accused or the attorneys for either side for various acts of contempt as they occur. Undoubtedly, where the necessity of circumstances warrants, a contemnor may be summarily tried for an act of contempt during trial and punished by a term of no more than six months. Nor does the judge exhaust his power to convict and punish summarily whenever the punishment imposed for separate contemptuous acts during trial exceeds six months. Cf. United States v. Seale, 461 F.2d 345, 355 (CA7 1972).
10
Bloom v. Illinois, supra, recognized, as cases in this Court have consistently done, 'the need to maintain order and a deliberative atmosphere in the courtroom. The power of a judge to quell disturbance cannot attend upon the impaneling of a jury.' 391 U.S., at 210, 88 S.Ct., at 1486.
11
'(A) criminal trial, in the constitutional sense, cannot take place where the courtroom is a bedlam . . .. A courtroom is a hallowed place where trials must proceed with dignity . . ..' Illinois v. Allen, 397 U.S. 337, 351, 90 S.Ct. 1057, 1064, 25 L.Ed.2d 353 (1970) (separate opinion of Douglas, J.).
12
See also N. Dorsen & L. Friedman, Disorder in the Court: Report of the Association of the Bar of the City of New York, Special Committee on Courtroom Conduct 10—23 (1973); Burger, The Necessity for Civility, 52 F.R.D. 211, 214—215 (1971).
13
'To allow the disruptive activities of a defendant . . . to prevent his trial is to allow him to profit from his own wrong. The Constitution would protect none of us if it prevented the courts from acting to preserve the very processes that the Constitution itself prescribes.' Illinois v. Allen, supra, at 350, 90 S.Ct., at 1064 (Brennan, J., concurring).
14
More recently, in Mayberry v. Pennsylvania, supra, we again noted that a judge, when faced with the kind of conduct there at issue, 'could, with propriety, have instantly acted, holding petitioner in contempt . . ..' 400 U.S., at 463, 91 S.Ct., at 504. That the total punishment meted out during trial exceeds six months in jail or prison would not invalidate any of the convictions or sentences, for each contempt has been dealt with as a discrete and separate matter at a different point during the trial.
III
15
When the trial judge, however, postpones until after trial the final conviction and punishment of the accused or his lawyer for several or many acts of contempt committed during the trial, there is no overriding necessity for instant action to preserve order and no justification for dispensing with the ordinary rudiments of due process. Mayberry v. Pennsylvania, supra, at 463 464, 91 S.Ct., at 504; Groppi v. Leslie, 404 U.S. 496, 499—507, 92 S.Ct. 582, 584—589, 30 L.Ed.2d 632 (1972); Taylor v. Hayes, 418 U.S., at 497, 94 S.Ct., at 2702. Moreover, it is normally the trial judge who, in retrospect, determines which and how many acts of contempt the citation will cover. It is also he or, as is the case here, another judge who will determine guilt or innocence absent a jury, who will impose the sentences and who will determine whether they will run consecutively or concurrently. In the context of the post-verdict adjudication of various acts of contempt, it appears to us that there is posed the very likelihood of arbitrary action that the requirement of jury trial was intended to avoid or alleviate. Cf. ibid.
16
The jury-trial guarantee reflects 'a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government.' Duncan v. Louisiana, 391 U.S., at 155, 88 S.Ct., at 1451 (footnote omitted). The Sixth Amendment represents a 'deep commitment of the Nation to the right of jury trial in serious criminal cases as a defense against arbitrary law enforcement . . ..' Id., at 156, 88 S.Ct., at 1451. Moreover,
17
'criminal contempt is a crime in every fundamental respect . . .. (I)n terms of those considerations which make the right to jury trial fundamental in criminal cases, there is no substantial difference between serious contempts and other serious crimes. Indeed, in contempt cases an even more compelling argument can be made for providing a right to jury trial as a protection against the arbitrary exercise of official power. Contemptuous conduct, though a public wrong, often strikes at the most vulnerable and human qualities of a judge's temperament. Even when the contempt is not a direct insult to the court or the judge, it frequently represents a rejection of judicial authority, or an interference with the judicial process or with the duties of officers of the court.' Bloom v. Illinois, 391 U.S., at 201—202, 88 S.Ct., at 1482.
18
In the case before us, the original trial judge filed the contempt charges against these petitioners, while another judge tried them and imposed the sentences. Because the latter had the power to impose consecutive sentences, as he did here, guilt or innocence on the individual charges bore heavily on the ultimate sentence and was of critical importance. Here the contempts against each petitioner was tried seriatim in one proceeding, and the trial judge not only imposed a separate sentence for each contempt but also determined that the individual sentences were to run consecutively rather than concurrently, a ruling which necessarily extended the prison term to be served beyond that allowable for a petty criminal offense. As a result of this single proceeding, Codispoti was sentenced to three years and three months for his seven contemptuous acts, Langnes to two years and eight months for his six contempts. In terms of the sentence imposed, which was obviously several times more than six months, each contemnor was tried for what was equivalent to a serious offense and was entitled to a jury trial.
19
We find unavailing respondent's contrary argument that petitioners' contempts were separate offenses and that, because no more than a six months' sentence was imposed for any single offense, each contempt was necessarily a petty offense triable without a jury. Notwithstanding respondent's characterization of the proceeding, the salient fact remains that the contempts arose from a single trial, were charged by a single judge, and were tried in a single proceeding. The individual sentences imposed were then aggregated, one sentence taking account of the others and not beginning until the immediately preceding sentence had expired.
20
Neither are we impressed with the contention that today's decision will provoke trial judges to punish summarily during trial rather then awaiting a calmer, more studied proceeding after trial and deliberating 'in the cool reflection of subsequent events.' Yates v. United States, 355 U.S. 66, 76, 78 S.Ct. 128, 134, 2 L.Ed.2d 95 (1957) (footnote omitted). Summary convictions during trial that are unwarranted by the facts will not be invulnerable to appellate review. Cf. Sacher v. United States, 343 U.S. 1, 9, 13, 72 S.Ct. 451, 455, 457, 96 L.Ed. 717 (1952).6
21
Nor can we accept the trial court's view that the question of petitioners' guilt on the contempt charges had already been conclusively adjudicated in this Court. Our decision in Mayberry v. Pennsylvania, supra, although expressing strong condemnation of Mayberry's conduct, which we reaffirm, did not purport to affirm Mayberry's contempt conviction. On the contrary, the judgment affirming the conviction was vacated and a new trial required before a different judge who was to sit 'in judgment on the conduct of petitioner as shown by the record.' 400 U.S., at 466, 91 S.Ct., at 505.
22
The judgment of the Pennsylvania Supreme Court is reversed and the case remanded for further proceedings not inconsistent with this opinion.
23
So ordered.
24
Reversed and remanded.
25
Mr. Justice MARSHALL, concurring in part.
26
I concur in the judgment of the Court, and in Parts I and III of the Court's opinion. However, I cannot join Part II of the opinion, which suggests that the trial judge in a situation such as we have here could impose an unlimited number of separate, consecutive six-month sentences upon a defendant 'for separate contemptuous acts during trial,' so long as the judge convicts and punishes summarily upon the occurrence of each contemptuous act. In my view, the Sixth Amendment right to jury trial would be equally applicable to this situation.
27
* The Court's opinion observes that '(t)he Sixth Amendment represents a 'deep commitment of the Nation to the right of jury trial in serious criminal cases as a defense against arbitrary law enforcement." Ante, at 2693, quoting Duncan v. Louisiana, 391 U.S. 145, 156, 88 S.Ct. 1444, 1451, 20 L.Ed.2d 491 (1968). The opinion further recognizes that it is the trial judge who in a single proceeding acts as prosecutor, 'determin(ing) which and how many acts of contempt the citation will cover'; as trier of fact, 'determin(ing) guilt or innocence absent a jury'; and as judge, 'impos(ing) the sentences and . . . determin(ing) whether they will run consecutively or concurrently.' Ante, at 2693. Thus, the Court concludes, 'there is posed the very likelihood of arbitrary action that the requirement of jury trial was intended to avoid or alleviate.' Ibid. I agree. But I completely fail to see how there is any less likelihood of such arbitrary action by a judge when he acts summarily to punish each allegedly contemptuous act by a defendant as it occurs, rather than awaiting the end of trial to try the contempts. Indeed, the suggestion provides an incentive for a trial judge to act in the heat of the moment, and thus encourages the very arbitrary action which it is the purpose of the Sixth Amendment to eliminate.
28
We have held that a six-month sentence is the constitutional dividing line between serious offenses for which trial by jury must be afforded and petty offenses, and that in contempt cases it is the sentence actually imposed rather than the penalty authorized by law which is determinative. Accordingly, the Court today holds that Codispoti and Langnes are constitutionally entitled to a jury trial because '(i)n terms of the sentence imposed, which was obviously several times more than six months, each contemnor was tried for what was equivalent to a serious offense.' Ante, at 2693. The Court rejects the State's argument that the individual contempts were separate offenses for Sixth Amendment purposes by pointing out that the contempts arose from a single trial, that they were charged by a single judge, and that the individual sentences were then aggregated. With all due respect, the same would be true if the judge had imposed summary punishment as the contemptuous acts occurred. Where the contemptuous acts arose out of a single course of conduct by the defendant, I think that they should be treated as a single serious offense for which the Sixth Amendment requires a jury trial, whether the judge seeks to use his summary contempt power in individual instances during trial or tries the contempts together at the end of trial. See N. Dorsen & L. Friedman, Disorder in the Court: Report of the Association of the Bar of the City of New York, Special Committee on Courtroom Conduct 222—224 (1973).
29
The only justification advanced by the Court to support the contrary position is the 'overriding necessity for instant action to preserve order.' Ante, at 2692. But we rejected this very argument in Bloom v. Illinois, 391 U.S. 194, 209—210, 88 S.Ct. 1477, 1486—1487, 20 L.Ed.2d 522 (1968). There, too, it was suggested that an exception to the constitutional rule requiring jury trial in serious contempt cases should be made for contempts committed in the presence of the judge because of 'the need to maintain order and a deliberative atmosphere in the courtroom.' Although we acknowledge that there was a 'strong temptation' to do so, we held that the need to maintain order was not sufficient to justify an exception to the constitutional requirement.
II
30
Equally important, I am convinced that there is no 'overriding necessity' for repeated use of the summary contempt power against a criminal defendant to maintain order in the courtroom. No clearer statement of the problem of courtroom disorder and its solution can be found than Mr. Justice Black's statement in Illinois v. Allen, 397 U.S. 337, 343—344, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353 (1970):
31
'It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated. We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case. No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations. We think there are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant like Allen: (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly.'
32
The Court in Allen set out three alternative ways of dealing with courtroom disorder. Today may Brothers single out one of these three alternatives and sanction the use of seriatim judge-imposed six-month sentences to maintain order and a deliberative atmosphere in the courtroom because of the necessity for this remedy. There is nothing in Allen, however, that approves a succession of judge-imposed six-month contempt citations in one trial, and I have been unable to find any of our cases giving such specific authorization. This is too big a step to take where such a positive declaration of law is not necessary for the decision of the case at hand.
33
The availability of the other remedies set forth in Allen is persuasive proof that courtroom disorder can be effectively dealt with without the use of repeated summary contempts resulting in lengthy jail terms. See N. Dorsen & L. Friedman, supra, at 235. Indeed, repeated contempt citations are probably the least effective way to deal with the problem. The very fact that a series of contempt citations has failed to check the defendant's contemptuous acts and restore a deliberative atmosphere in the courtroom itself demonstrates that another citation is unlikely to do so. Either of the other two alternatives set forth in Allen would correct rather than prolong the disruptions of an orderly trial. Rather than permit the use of repeated contempt citations resulting in a sentence of over six months, Allen suggests that after an initial warning, see 397 U.S., at 350, 90 S.Ct., at 1064 (Brennan, J., concurring), the next disruption could be punished with a contempt citation and a six-month sentence, plus a firm warning that any further disruption will be followed by binding or gagging the defendant or removing him from the courtroom until he promises to conduct himself properly. This approach would be more effective in maintaining that 'dignity, order, and decorum' of which Mr. Justice Black spoke in Allen than successive contempt citations after future disruptions, without running afoul of the Sixth Amendment's right to jury trial.
34
Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE, Mr. Justice STEWART, and Mr. Justice REHNQUIST join, dissenting.
35
In Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968), this Court established a constitutional right to a jury trial of a charge for a criminal contempt where the penalty imposed exceeded six months. There the contempt consisted of a lawyer's filing a spurious will for probate. It was not a direct contempt in open court. Where, as in Bloom the criminal contempt takes place outside the presence of the court, there is little to distinguish the contempt, for purposes of using a jury as the factfinder, from the run-of-the-mill criminal offense. In this respect, the result in Bloom was a logical one.
36
In the present case, however, the contempt took place in open court and the incident and all its details are fully preserved on the trial record. The Court's opinion does not specify and leaves unclear what facts, if any, remain to be determined. I am at a loss, therefore, to see the role a jury is to perform. The perceived need to remove the case from the contemned judge is fully served by assigning the case to a different judge. See Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897; Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971). And, as Mr. Justice REHNQUIST points out, since the new judge, not the jury, will impose the sentence, there is nothing the jury can do by way of mitigating an excessive punishment.
37
The determination of whether basically undisputed facts constitute a direct criminal contempt is a particularly inappropriate task for the jury. Before today, this determination has always been the exclusive province of the court, not the jury, and never before has this Court required a jury trial in a case involving a direct contempt.* Since I believe, as a practical matter, that there is no function for a jury to serve in a case such as this, I do not join the Court's extension of Bloom to include direct, incourt contempts. I, therefore, respectfully dissent.
38
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE joins as to Part II, dissenting.
39
These two cases are graphic illustrations of the manner in which constitutional limitations on the power of a trial judge to summarily punish for contempt have been fashioned virtually out of whole cloth by this Court in the course of only 20-odd years. In Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717 (1952), the Court, speaking through Mr. Justice Jackson, said:
40
'Summary punishment always, and rightly, is regarded with disfavor and, if imposed in passion or pettiness, brings discredit to a court as certainly as the conduct it penalizes. But the very practical reasons which have led every system of law to vest a contempt power in one who presides over judicial proceedings also are the reasons which account for it being made summary. . . . The rights and immunities of accused persons would be exposed to serious and obvious abuse if the trial bench did not possess and frequently exert power to curb prejudicial and excessive zeal of prosecutors. The interests of society in the preservation of courtroom control by the judges are no more to be frustrated through unchecked improprieties by defenders.' Id., at 8, 72 S.Ct., at 454.
41
The Court's decisions today are the culmination of a recent trend of constitutional innovation which virtually emasculates this historic power of a trial judge. If the Court's holdings in this area were the product of any new historical insight into the meaning of the Fourteenth Amendment, or if indeed they could be regarded as a desirable progression toward a reign of light and law, even though of dubious constitutional ancestry, there would be less occasion for concern. But from the hodgepodge of legal doctrine embodied in these decisions, which have irretrievably blended together constitutional guarantees of jury trial in criminal cases, constitutional guarantees of impartial judges, and fragments of the law of contempt in federal courts, the only consistent thread which emerges is this Court's inveterate propensity to second-guess the trial judge.
42
* In Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897, the court holds, squarely contrary to the holding in Sacher, supra, that the respondent trial judge was not entitled to proceed summarily against petitioner, even though all of the conduct in question occurred in the presence of respondent. The Court apparently concludes that since respondent did not sentence petitioner until after the proceedings at issue were completed, and at that point refused to permit petitioner to respond, petitioner's due process rights were violated.
43
This conclusion is completely at odds with Sacher. That case involved the contempt convictions of various defense counsel as an aftermath of the trial of various Communist Party leaders on charges of violating the Smith Act. Upon receiving the guilty verdict, Judge Medina of the Southern District of New York at once filed a certificate under Fed.Rule Crim.Proc. 42(a), finding various defense counsel, including one defendant who had represented himself, guilty of contempt. Federal Rule Crim.Proc. 42(a) provided then, as it does now, that '(a) criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.' The contemnors argued that since Judge Medina had waited until the end of the trial to sentence them, the power of summary punishment for direct contempts under Rule 42(a) had expired, and the provisions of Rule 42(b) requiring notice and hearing became applicable. This Court in Sacher rejected that contention:
44
'The Rule in question contemplates that occasions may arise when the trial judge must immediately arrest any conduct of such nature that its continuance would break up a trial, so it gives him power to do so summarily. But the petitioners here contend that the Rule not only permits but requires its instant exercise, so that once the emergency has been survived punishment may no longer be summary but can only be administered by the alternative method allowed by Rule 42(b). We think 'summary' as used in this Rule does not refer to the timing of the action with reference to the offense but refers to a procedure which dispenses with the formality, delay and digression that would result from the issuance of process, service of complaint and answer, holding hearings, taking evidence, listening to arguments, awaiting briefs, submission of findings, and all that goes with a conventional court trial. The purpose of that procedure is to inform the court of events not within its own knowledge. The Rule allows summary procedure only as to offenses within the knowledge of the judge because they occurred in his presence.
45
'. . . To summon a lawyer before the bench and pronounce him guilty of contempt is not unlikely to prejudice his client. It might be done out of the presence of the jury, but we have held that a contempt judgment must be public. Only the naive and inexperienced would assume that news of such action will not reach the jurors. If the court were required also them to pronounce sentence, a construction quite as consistent with the text of the Rule as petitioners' present contention, it would add to the prejudice. . . .' 343 U.S., at 9—10, 72 S.Ct., at 455.
46
At no point did the Court in Sacher suggest that the procedures set forth in Rule 42(a) were subject to any constitutional infirmity. Yet by the decision in Taylor v. Hayes, the Court has now held that procedures upheld within the unitary confines of the federal court system only two decades ago may not now be constitutionally employed by a State. The decision in Taylor will surely come as something of a shock to federal judges who must now decide whether they may constitutionally utilize the provisions of Fed.Rule Crim.Proc. 42(a) in punishing direct contempts.
47
Our prior decisions have continuously adhered to the view that '(w)here the contempt is committed directly under the eye or within the view of the court, it may proceed 'upon its own knowledge of the facts, and punish the offender. without further proof, and without issue or trial in any form." In re Savin, 131 U.S. 267, 277, 9 S.Ct. 699, 702, 33 L.Ed. 150 (1889), quoting Ex parte Terry, 128 U.S. 289, 309, 9 S.Ct. 77, 81, 32 L.Ed. 405 (1888). See Cooke v. United States, 267 U.S. 517, 535, 45 S.Ct. 390, 394, 69 L.Ed. 767 (1925); Fisher v. Pace, 336 U.S. 155, 159 160, 69 S.Ct. 425, 427—428, 93 L.Ed. 569 (1949).1 It is only when the contempt is not a direct one, i.e., observed by the judge himself, that the power to proceed summarily becomes subject to some qualification. In re Oliver, 333 U.S. 257, 274 276, 68 S.Ct. 499, 508—509, 92 L.Ed. 682 (1948).
48
Groppi v. Leslie, 404 U.S. 496, 92 S.Ct. 582, 30 L.Ed.2d 632 (1972), relied upon by the Court, was a wholly different case from Taylor. In Groppi, the Assembly of the Wisconsin Legislature passed a resolution citing the petitioner there for contempt of that body, which had allegedly occurred two days previously. This Court reversed that conviction because petitioner had not been afforded adequate notice and hearing. The Court in Groppi noted that Sacher was a different case because it involved courtroom contempts by lawyers, with repeated warnings by the judge, and an opportunity on their behalf to speak. Taylor is no different from Sacher; respondent judge repeatedly warned petitioner of his contemptuous conduct, and when he informed petitioner that he was in contempt permitted petitioner an opportunity to speak. Indeed, the Court in Taylor indicates that it agrees with the Kentucky Court of Appeals that "(t)he contempt citations and the sentences coming at the end of the trial were not and could not have been a surprise to Taylor, because upon each occasion and immediately following the charged act of contempt the court informed Taylor that he was at that time in contempt of court." 418 U.S., at 496 497, 94 S.Ct., at 2702, quoting 494 S.W.2d 737, 741—742 (Ky.1973).
49
Even were I in agreement with the Court's conclusion that Taylor's contempt conviction should be reversed, I nevertheless could not join in the holding that if petitioner is to be tried again, he may not be tried by respondent. While conceding that petitioner's conduct did not constitute the kind of personal attack on respondent that would prevent the latter from maintaining the calm detachment necessary for fair adjudication, Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971), the Court holds that 'it appears to us that respondent did become embroiled in a running controversy with petitioner.' 418 U.S., at 501, 94 S.Ct., at 2705. This portion of the Court's holding can only be described as a total repudiation of the principle laid down in Sacher:
50
'A construction of the Rule is advocated which would deny a judge power summarily to punish a contempt that is personal to himself except, perhaps, at a moment when it is necessary to forestall abortion of the trial. His only recourse, it is said, is to become an accuser or complaining witness in a proceeding before another judge.
51
'The Rule itself expresses no such limitation, and the contrary inference is almost inescapable. It is almost inevitable that any contempt of a court committed in the presence of the judge during a trial will be an offense against his dignity and authority. At a trial the court is so much the judge and the judge so much the court that the two terms are used interchangeably in countless opinions in this Court and generally in the literature of the law, and contempt of the one is contempt of the other. It cannot be that summary punishment is only for such minor contempts as leave the judge indifferent and may be evaded by adding hectoring, abusive and defiant conduct toward the judge as an individual. Such an interpretation would nullify, in practice, the power it purports to grant.' 343 U.S., at 11 12, 72 S.Ct., at 456 (emphasis added).
52
The Court in Sacher was interpreting the language of Fed.Rule Crim.Proc. 42(a), and, without the slightest suggestion that there might be constitutional infirmities in such procedures, refused to require retrial of the contemnors there before a different judge. Twelve years later, in a state case, Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964), the Court reaffirmed the principles of Sacher, in the face of an argument that the Constitution required something different. The Court in Ungar indicated that it was 'unwilling to bottom a constitutional rule of disqualification solely upon . . . disobedience to court orders and criticism of its rulings during the course of a trial. . . . We cannot assume that judges are so irascible and sensitive that they cannot fairly and impartially deal with resistance to their authority or with highly charged arguments about the soundness of their decisions.' Id., at 584, 84 S.Ct., at 847.
53
Taylor is not a federal case, where this Court, in the exercise of some perceived wisdom of the appropriate policy to be followed in the administration of justice in the federal courts, see Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11 (1954); Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390 69 L.Ed. 767 (1925), may require retrial before another judge. By holding in Taylor that the respondent judge should be disqualified from trying petitioner's contempt, the Court has now adopted the very constitutional rule it disavowed in Ungar v. Sarafite, supra, and found not even worthy of mention in Sacher. In Mayberry v. Pennsylvania, supra, a case in which the defendant's conduct was so extraordinary that even the Court apparently concedes it affords no precedent for today's decision in Taylor, the Court was at pains to state that '(a) judge cannot be driven out of a case.' 400 U.S., at 463, 91 S.Ct., at 504. Yet the teaching of Mayberry, and of today's decision in Taylor is precisely the opposite: a judge can be driven out of a case by any counsel sufficiently astute to read the new-found constitutional principles enunciated in these decisions. Whether as a matter of policy the added procedural rights conferred upon contemptuous lawyers are worth the sacrifice of the historic authority of the trial judge to control proceedings in his court may be open to debate, the total absence of any basis in the Fourteenth Amendment for the result which the Court reaches in Taylor v. Hayes, is to me clear beyond any doubt. Accordingly, I dissent from the Court's reversal of the conviction in that case.2
II
54
The Codispoti litigation in this Court is worthy of a chapter in Charles Dickens' Bleak House. Codispoti and Langnes were codefendants with the petitioner in Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971), on contempt charges in the Pennsylvania courts and were apparently beneficiaries of this Court's judgment of reversal in that case.3 The Court's concluding language in its opinion in that case was that 'on remand another judge, not bearing the sting of these slanderous remarks and having the impersonal authority of the law (sit) in judgment on the conduct of petitioner as shown by the record.' Id., at 466, 91 S.Ct., at 505. Pennsylvania carried out this mandate to the letter, and, as the Court points out in its opinion, Codispoti and Langnes were tried before a different judge, and received on retrial substantially more lenient sentences than had been imposed in the first instance. Nonetheless, the Court in its Codispoti opinion today, without so much as batting an eye, now decides that these petitioners were entitled to a jury trial. If that were the case, and 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), each decided three years before Mayberry, require such a result, it would seem to have been appropriate to so indicate in Mayberry.
55
In holding that Duncan and Bloom require a jury trial for the petitioners in Codispoti, the Court does not sufficiently distinguish the analogous case of Jenkins v. Delaware, 395 U.S. 213, 89 S.Ct. 1677, 23 L.Ed.2d 253 (1969), which at the very least strongly suggests that petitioners were not entitled to a jury trial upon their retrial for contempt. In Jenkins, the petitioner had been convicted in a state court of murder and burglary. During the pendency of his appeal in the Supreme Court of Delaware, this Court decided Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), which held that the decision in Miranda 'applies only to cases in which the trial began after the date of (the Miranda) decision . . ..' Id., at 721, 86 S.Ct., at 1775 (emphasis added). In reversing the petitioner's conviction on various state grounds, the Supreme Court of Delaware also determined, sua sponte, that under Johnson v. New Jersey, supra, a statement obtained from petitioner without fully advising him of his constitutional rights would be admissible at his retrial. Petitioner was retried and convicted of second-degree murder, and the Supreme Court of Delaware again affirmed. This Court affirmed the conviction, rejecting petitioner's argument that the statement should have been excluded from evidence. We held that the Miranda standards do not apply to persons whose retrials have commenced after the date of that decision if their original trials had begun before that date.
56
Codispoti is a substantially similar case. Codispoti and Langnes were originally tried and convicted of criminal contempt in 1966. This Court did not decide Duncan v. Louisiana, supra, and Bloom v. Illinois, supra, until May 20, 1968. And in DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968) (per curiam), the Court held that the decisions in Duncan and Bloom would not retroactively apply to 'trials (begun) prior to May 20, 1968.' Id., at 635, 88 S.Ct., at 2096. Since the original trial of these petitioners began prior to the date of the decisions in Duncan and Bloom, under DeStefano they would not have been entitled to the benefit of those rulings at their original trials. And Jenkins v. Delaware, supra, certainly suggests that since petitioners' original trial began prior to the decisions in Duncan and Bloom, they should not receive the benefit of those cases upon their retrial. The Court's rejoinder is that Duncan and Bloom are different cases because they involve jury trials instead of 'uncorrectable police conduct which occurred prior to trial and which, if illegal, would preclude the use of perhaps critical evidence gathered in reliance on then-existing law.' But our decision in Johnson v. New Jersey, supra, that Miranda was to have only prospective application did not turn on when the police conduct at issue occurred, but instead on when the trial of the defendant occurred. The Court does not tell us why the retrial rule of Jenkins v. Delaware, supra, is not equally applicable to the jury-trial requirements of Duncan and Bloom, which DeStefano says do not govern where the original trial began prior to the date of those decisions.
57
The Court's decision in Bloom v. Illinois, supra, marked a sharp departure from prior constitutional holdings under the Fourteenth Amendment. Even were it clear that petitioners were entitled to the benefit of Bloom on retrial, final acceptance of Bloom's holding as governing Codispoti would first warrant examination as to its practical effects. Bloom, an attorney, was charged with contempt of a state court for having filed a spurious will for probate. Bloom was a classic case of 'indirect contempt,' one which occurred outside of the presence of the court, and Bloom was accorded a full trial before the court. Evidence was received tending to show that a third party had engaged Bloom to draw a will after the death of the putative testator; Bloom was convicted of contempt by the court, and was sentenced to two years' imprisonment. Under Illinois law, no maximum punishment was provided for convictions for criminal contempt. This Court, relying on Duncan v. Louisiana, supra, held that where state law did not provide a maximum punishment for criminal contempt, the Fourteenth Amendment required that the penalty actually imposed on the contemnor be the constitutional indicator of the seriousness of the offense and the right of jury trial defined by Duncan. Since Duncan held that a prosecution for a crime with a maximum penalty of two years was one for a serious offense within the terms of the Sixth and Fourteenth Amendments, the Court held that Bloom was entitled to a jury trial on the contempt charges.
58
As the Court's opinion today in Taylor v. Hayes, 418 U.S., at 495—496, 94 S.Ct., at 2691, makes clear, the constitutional rule of Bloom has now evolved into a rule whereby a contemnor must be afforded a jury trial where either a penalty over six months is authorized by statute or where the penalty actually imposed exceeds six months. Presumably, the case-law support for this conclusion is Duncan v. Louisiana, supra, and Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970), since we deal here, not with a federal case, where this Court, in the exercise of supervisory authority over the administration of justice in the federal courts, has applied this six-month rule, see Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966), but with a state case where only the Constitution may dictate such a rule. Duncan v. Louisiana, supra, was a 7—2 opinion which held that where the crime for which a state court defendant was tried was punishable by a two-year sentence, the Fourteenth Amendment required the application of the Sixth Amendment guarantee of jury trial in serious criminal cases to state prosecutions. Mr. Justice Harlan, in dissent, joined by Mr. Justice Stewart, forcefully argued that there was no indication that the drafters of the Fourteenth Amendment intended to make the Sixth Amendment applicable to the States. See fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 Stan.L.Rev. 5 (1949); Morrison, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Judicial Interpretation, 2 Stan.L.Rev. 140 (1949). Baldwin v. New York, supra, of course, was a plurality opinion of three Members of this Court, which extended the constitutional jury-trial rule of Duncan v. Louisiana, supra, to any state criminal offense where the penalty permitted was over six months. Mr. Justice Harlan, Mr. Chief Justice Burger, and Mr. Justice Stewart dissented.
59
The Court in Codispoti woodenly applies this six-month rule to the facts of that case, without any regard to the significant differences between Codispoti and Bloom, and without regard to the import of its decision. In applying this six-month rule of dubious constitutional origin to consecutive sentences on counts of six months, or less, it appears that the Baldwin plurality's proposition that six months is the constitutional sine qua non of the jury-trial requirement under the Fourteenth Amendment now commands a majority of this Court almost sub silentio by passage of time rather than by force of reason.
60
Codispoti and Langnes were convicted on their retrial of various separate contemptuous acts and were sentenced for each act to terms of six months or less, with the direction that the sentences be served consecutively. The contemnor in Bloom was sentenced to two years for one contemptuous act. Bloom's contempt was an indirect one, and he was entitled under Illinois law to the normal rights of any trial defendant save only the right to a jury trial. By awarding him a constitutional right to a jury trial, this Court in effect required that the fact-finding function be transferred from the judge to a jury. Whether right or wrong as a matter of constitutional law, the holding in Bloom was at least intelligible. But the contempts of Codispoti and Langnes were direct, committed in the presence of the trial judge. Upon retrial after our decision in Mayberry, supra, the case was tried before another Pennsylvania judge on the basis of the certificate of contempt filed by the judge who had presided at the original criminal trial of Mayberry, Codispoti, and Langnes. It does not appear that either Codispoti or Langnes seriously challenged the factual allegations in the certificate of contempt, and it would seem fair to surmise that this lack of factual dispute is typical of a trial based on a certificate of direct contempt.
61
The Court's opinion in Bloom spoke of the seriousness of an offense for which a sentence of more than six months was imposed, 391 U.S., at 196—197, 88 S.Ct., at 1478—1479, and it might be thought from the Court's opinion in Codispoti today that the jury was in some way expected to mitigate the harshness of the punishment which could be visited upon a contemnor. But there is no indication whatever in the record before us that Pennsylvania law allocates any role in the sentencing of a criminal defendant to the jury. The jury presumably will hear evidence as to relatively undisputed facts, and if it returns a verdict of guilty a sentence will be imposed by a judge trying the case. If it is the length of sentence which is to be the controlling factor in determining whether a jury trial is to be awarded, and the severity of the possible sentence to be imposed by the judge which provides the constitutional basis for requiring a jury trial, the Court's application of Bloom to a direct contempt seems questionable for more than one reason. The guarantee of jury trial accorded to these petitioners in no way limits the sentence which may be imposed by the trial judge in those cases where a guilty verdict is returned by the jury. The Court has succeeded only in requiring Pennsylvania to engraft onto its traditional procedures for adjudicating direct contempts a judicial 'fifth wheel' without appreciably furthering the constitutional goals enunciated in Duncan v. Louisiana, supra, and Bloom v. Illinois, supra.
62
The application of Bloom to the consecutive sentences imposed for the separate contemptuous acts of Codispoti and Langnes is made even more questionable in light of the concession that the result would be different in other fact situations. It is indicated in the Part II opinion that a contemnor 'may be summarily tried for an act of contempt during trial and punished by a term of no more than six months. Nor does the judge exhaust his power to convict and punish summarily whenever the punishment imposed for separate contemptuous acts during trial exceeds six months.' 418 U.S., at 514, 94 S.Ct., at 2692. The upshot of this, of course, is that trial judges are surely to be inclined to adjudicate and punish the contempt during the trial rather than awaiting the end of the trial. The answer that is made to this obvious result of the holding is the adjuration that '(s)ummary convictions during trial that are unwarranted by the facts will not be invulnerable to appellate review.' Ante, at 517, 94 S.Ct., at 2694. What this statement portends for the future of the Court's inveterate propensity to second-guess trial judges is, as they say, 'anybody's guess.'
63
I dissent from the Court's reversal of the convictions in Codispoti v. Pennsylvania.
**
Part II of the opinion is joined only by Mr. Justice DOUGLAS, Mr. Justice BRENNAN, and Mr. Justice POWELL.
1
The seven contempts charged against Codispoti were:
'1. That while being tried by a jury before Albert A. Fiok, J. on November 18, 1966, he, the defendant, accused the court of
trying to protect the prison authorities by saying, 'Are you trying to protect the prison authorities, Your Honor? Is that your reason?'
'2. That while on trial as aforesaid on November 29, 1966, he, the defendant, accused the court of kowtowing and railroading the defendant into life imprisonment by saying '. . . it is only because the defendants in this case will not sit still and be kowtowed and be railroaded into a life imprisonment.'
'3. That while on trial as aforesaid on November 30, 1966, he, the defendant, called the judge 'Caesar' and accused the court of misconduct by saying, 'You're trying to railroad us.' and '. . . I have never come across such a tyrannical display of corruption in my life.'
'4. That while on trial as aforesaid on December 1, 1966, he, the defendant, addressed the Court in an insolent and derogatory manner by saying, 'Are you going to tell me my codefendant is not crazy? You must be crazy to try me with him.'
'5. That while on trial as aforesaid on December 2, 1966, he, the defendant, accused the Court of criminal conspiracy between it and prison officials by saying, 'I further intend to prove there is a conspiracy between the prison authorities and this Court.'
'6. That while on trial as aforesaid on December 8, 1966, he, the defendant, created a despicable scene and refused to continue with the calling of his witnesses unless the Court ordered a mistrial, and in general creating an uproar, such an uproar as to cause the termination of the trial.
'7. That while on trial as aforesaid on December 9, 1966, he, the defendant, by constant and boisterous and insolent conduct interrupted the Court in its attempts to charge the jury, thereby creating an atmosphere of utter confusion and chaos.' App. 33—34.
2
The six contempts charged against Langnes were:
'1. That while being tried by a jury before Albert A. Fiok, J. on November 28, 1966, he, the defendant, accused the court of conspiracy by saying, 'For the record, before he begins again, I want the record to show this is another proof of conspiracy between this Court and institution.'
'2. That while on trial as aforesaid on November 29, 1966, he, the defendant, threatened to blow the trial judge's head off, by saying, 'If I have to blow your head off, that's exactly what I'll do. I don't give a damn if its on the record or not. If I got to use force, I will. That's what the hell I'm going to do.'
'3. That while on trial as aforesaid on December 1, 1966, he, the defendant, accused and threatened the court by saying, 'Like I told you, you force this trial on me—you going to give me an illegal trial, I told you before what I was going to do to you, and I mean it. Now I refuse to go on with this trial if you are going to railroad me and badger my witnesses, force me to an unfair trial, that is exactly what I am going to do, punk. I'm going to blow your head off. You understand that?'
'4. That while on trial as aforesaid on December 5, 1966, he, the defendant, told the court to 'Go to hell.' and accused the court of misconduct by saying, 'One reason, you obviously have gotten in contact with the local papers to sharpen the hatchet over the heads of the defendants accusing them of causing the taxpayers fifty grand which as a result gave this hearing a prejudicial atmosphere. I would like to state here for the record, and for the papers, if need be, it is not us that is costing the taxpayers money. It is you, Mr. Maroney, and the Commonwealth that is costing the taxpayers money.'
'5. That while on trial as aforesaid on December 5, 1966, he, the defendant, made scurrilous remarks to the court by saying, 'For the record, I would like to state that as far as my personal opinion is concerned, communist Russia, communist China, and Cuba need men like you. I think wherever you came from you infiltrated the courts and the whole place might as well be communist Russia.'
'6. That while on trial as aforesaid on December 9, 1966, he, the defendant, threatened the life of the court by saying, 'I object to what you did to my two codefendants and I swear on my mother's name that I will keep my promise to you, the two threats I made. Don't worry about me interrupting during your summation. I won't even dignify these stinking proceedings, punk, go to hell, and I will shake hands in hell with you. I will be damned to you.' Also, he, the defendant, said, 'You are a dead man, stone dead. Your Honor." App. 30—31.
3
The questions on which certiorari was granted were stated in the petition, as follows:
'1. Should petitioners receive cumulative sentences for contempt of court imposed at the end of a trial where the total effective sentence received must be used rather than the individual sentences in order to determine the seriousness of the contempt and thereby determine whether the accused should be afforded the right to a jury trial?
'2. Should the strong possibility of a substantial term of imprisonment require that an accused be afforded the right to a jury trial?'
4
In tracing the lineage of the six-month dividing line for purposes of ascertaining whether a jury trial is required under the Sixth Amendment, Mr. Justice REHNQUIST's dissent implicitly questions the authenticity of this rule. Putting aside whether the 'constitutional rule of Bloom' ever 'evolved' into the present rule, it is sufficient to note that although only three Members of the Court explicitly embraced the six-month demarcation point in Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970), Mr. Justice Black and Mr. Justice Douglas concurred in the judgment. While reading the Sixth Amendment to require a jury trial for 'all crimes,' they expressed the view that imprisonment for more than six months would certainly necessitate a jury trial. Five Members of the Court out of the eight participating therefor agreed that, at the very least, the Sixth Amendment requires a jury trial in all criminal prosecutions where the term of imprisonment authorized by statute exceeds six months.
5
My Brother REHNQUIST submits that petitioners are not entitled to a jury trial because they were originally tried and convicted of contempt in 1966, two years before this Court's decisions in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), and Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968), which we held in DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968), should receive only prospective application. His dissent finds further support for its conclusion in Jenkins v. Delaware, 395 U.S. 213, 89 S.Ct. 1677, 23 L.Ed.2d 253 (1969), where the Court held that Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), did not apply to persons whose retrials had commenced after the date of the Miranda decision if their original trials had begun before that date. This view, however, represents a fundamental misreading of the reach of these decisions and their applicability to the peculiar circumstances of this case. DeStefano unmistakably stated that 'we will not reverse state convictions for failure to grant jury trial where trials began prior to May 20, 1968, the date of this Court's decisions in Duncan v. State of Louisiana and Bloom v. State of Illinois.' 392 U.S., at 635, 88 S.Ct., at 2096 (emphasis added). DeStefano did not exempt from the jury-trial requirement trials beginning after that date, and here petitioners' convictions occurred in a trial that began over three and one-half years after the Duncan and Bloom decisions. The boundaries for the retroactive impact of Duncan and Bloom were advisedly established, for the jury-trial requirement, by definition, relates to trials, not to uncorrectable police conduct which occurred prior to trial and which, if illegal, would preclude the use of perhaps critical evidence gathered in reliance on then-existing law. Jenkins v. Delaware involved the latter considerations and has little bearing here.
6
'When constitutional rights turn on the resolution of a factual dispute we are duty bound to make an independent examination of the evidence in the record. See, e.g., Edwards v. State of South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 683, 9 L.Ed.2d 697; Blackburn v. State of Alabama, 361 U.S. 199, 205, n. 5, 80 S.Ct. 274, 279, 4 L.Ed.2d 242.' Brookhart v. Janis, 384 U.S. 1, 4 n. 4, 86 S.Ct. 1245, 1247, 16 L.Ed.2d 314 (1966).
*
In Bloom v. Illinois, 391 U.S. 194, 210, 88 S.Ct. 1477, 1486, 20 L.Ed.2d 522 (1968), the Court acknowledged 'a strong temptation to make exception to the rule we establish today for disorders in the courtroom.' Although wholly unnecessary to its decision, the Court there resisted that temptation and declined to recognize the exception. In my opinion the result in Bloom, an out-of-court contempt, does not lead inevitably to the result reached today in Codispoti's case, and I decline to follow Bloom's dictum that carries the contrary implication.
1
See also the more than 50 cases cited in United States v. Barnett, 376 U.S. 681, 694 n. 12, 84 S.Ct. 984, 991, 12 L.Ed.2d 23 (1964).
The Court in Ex parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405 (1888), stated:
'We have seen that it is a settled doctrine in the jurisprudence both of England and of this country, never supposed to be in conflict with the liberty of the citizen, that, for direct contempts committed in the face of the court, at least one of superior jurisdiction, the offender may, in its discretion, be instantly apprehended and immediately imprisoned, without trial or issue, and without other proof than its actual knowledge of what occurred; and that, according to an unbroken chain of authorities, reaching back to the earliest times, such power, although arbitrary in its nature and liable to abuse, is absolutely essential to the protection of the courts in the discharge of their functions. Without it, judicial tribunals would be at the mercy of the disorderly and violent, who respect neither the laws enacted for the vindication of public and private rights, nor the officers charged with he duty of administering them.' Id., at 313, 9 S.Ct., at 83.
See also Cooke v. United States, 267 U.S., at 534, 45 S.Ct., at 394.
2
I agree with the Court's conclusion that Taylor was not entitled to a jury trial on the contempt charges.
3
These petitioners were originally convicted in 1966 of criminal contempt of a Pennsylvania state court. Their codefendant in those proceedings was Richard Mayberry, who was also convicted of contempt. From the affirmance of those convictions by the Supreme Court of Pennsylvania, 434 Pa. 478, 255 A.2d 131 (1969), only Mayberry sought review in this Court. In Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971), this Court reversed Mayberry's conviction and remanded for retrial before another Pennsylvania state court judge. Though the record in this Court is unclear how it came about, Pennsylvania somehow made both Codispoti and Langnes the beneficiaries of the remand in Mayberry. They were thus retried on newly filed charges of criminal contempt, before another judge; they were again convicted, and on subsequent appeal to the appellate courts of Pennsylvania, their convictions were affirmed. It is clear, however, that the reversal of Mayberry's conviction and remand to the Pennsylvania courts for retrial, was not intended by this Court to disturb the original convictions of Codispoti and Langnes, nor to award them a retrial in the Pennsylvania courts. Whether or not petitioners here may, without further trial, now be incarcerated pursuant to the sentences imposed in the first contempt trial and affirmed on appeal by the Pennsylvania courts is, presumably, a matter of Pennsylvania law.
| 01
|
418 U.S. 539
94 S.Ct. 2963
41 L.Ed.2d 935
Charles WOLFF, Jr., etc., et al., Petitioners,v.Robert O. McDONNELL, etc.
No. 73—679.
Argued April 22, 1974.
Decided June 26, 1974.
Syllabus
Respondents, on behalf of himself and other inmates at a Nebraska prison, filed a complaint for damages and injunctive relief under 42 U.S.C. § 1983, in which he alleged that disciplinary proceedings at the prison violated due process; that the inmate legal assistance program did not meet constitutional standards; and that the regulations governing inmates' mail were unconstitutionally restrictive. After an evidentiary hearing, the District Court granted partial relief. Though rejecting respondent's procedural due process claim, the court held that the prison's policy of inspecting all attorney-prisoner mail was improper but that restrictions on inmate legal assistance were not constitutionally defective. The Court of Appeals reversed with respect to the due process claim, holding that the procedural requirements outlined in the intervening decisions in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656, should be generally followed in prison disciplinary hearings, but leaving the specific requirements (including the circumstances in which counsel might be required) to be determined by the District Court on remand. The Court of Appeals further held that Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439, forbade restoration of good-time credits in a § 1983 suit but ordered expunged from prison records misconduct determinations reached in proceedings that had not comported with due process. The court generally affirmed the District Court's judgment respecting correspondence with attorneys, but added some additional prescriptions and ordered further proceedings to determine whether the State was meeting its burden under Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718, to provide legal assistance to prisoners, a duty the court found to extend to civil rights cases as well as habeas corpus proceedings. Under Nebraska's disciplinary scheme forfeiture or withholding of good-time credits or confinement in a disciplinary cell is provided for serious misconduct and deprivation of privileges for less serious misconduct. To establish misconduct (1) a preliminary conference is held with the chief corrections supervisor and the charging party, where the prisoner is orally informed of the charge and preliminarily discusses the merits; (2) a conduct report is prepared and a hearing held before the prison's disciplinary body, the Adjustment Committee (composed of three prison officials), where (3) the inmate can ask questions of the charging party. Held:
1. Though the Court of Appeals correctly held that restoration of good-time credits under § 1983 is foreclosed under Preiser, supra, damages and declaratory and other relief for improper revocation of good-time credits are cognizable under that provision. Pp. 553—555.
2. A prisoner is not wholly stripped of constitutional protections, and though prison disciplinary proceedings do not implicate the full panoply of rights due a defendant in a criminal prosecution, such proceedings must be governed by a mutual accommodation between institutional needs and generally applicable constitutional requirements. Pp. 555—556.
3. Since prisoners in Nebraska can only lose good-time credits if they are guilty of serious misconduct, the procedure for determining whether such misconduct has occurred must observe certain minimal due process requirements (though not the full range of procedures mandated in Morrissey, supra, and Scarpelli, supra, for parole and probation revocation hearings) consonant with the unique institutional environment and therefore involving a more flexible approach reasonably accommodating the interests of the inmates and the needs of the institution. Pp. 556—572.
(a) Advance written notice of charges must be given to the disciplinary action inmate, no less than 24 hours before his appearance before the Adjustment Committee. Pp. 563—564.
(b) There must be 'a written statement by the factfinders as to the evidence relied on and reasons for (the disciplinary action).' Morrissey v. Brewer, supra, 408 U.S., at 489, 92 S.Ct., at 2604. Pp. 564—565.
(c) The inmate should be allowed to call witnesses and present documentary evidence in his defense if permitting him to do so will not jeopardize institutional safety or correctional goals. Pp. 566—567.
(d) The inmate has no constitutional right to confrontation and cross-examination in prison disciplinary proceedings, such procedures in the current environment, where prison disruption remains a serious concern, being discretionary with the prison officials. Pp. 567—569.
(e) Inmates have no right to retained or appointed counsel in such proceedings, although counsel substitutes should be provided in certain cases. Pp. 569—570.
(f) On the record here it cannot be concluded that the Adjustment Committee is not sufficiently impartial to satisfy due process requirements. Pp. 570—571.
4. The Court of Appeals erred in holding that the due process requirements in prison disciplinary proceedings were to be applied retroactively by requiring the expunging of prison records of improper misconduct determinations. Morrissey, supra, 408 U.S., at 490, 92 S.Ct., at 2604. Pp. 573—574.
5. The State may constitutionally require that mail from an attorney to a prisoner be identified as such and that his name and address appear on the communication; and—as a protection against contraband—that the authorities may open such mail in the inmate's presence. A lawyer desiring to correspond with a prisoner may also be required first to identify himself and his client to the prison officials to ensure that letters marked 'privileged' are actually from members of the bar. Other restrictions on the attorney-prisoner mail procedure required by the courts below are disapproved. Pp. 574—577.
6. The District Court, as the Court of Appeals suggested, is to assess the adequacy of the legal assistance available for preparation of civil rights actions, applying the standard of Johnson v. Avery, supra, 393 U.S., at 490, 89 S.Ct., at 751, that 'unless and until the State provides some reasonable alternative to assist inmates in the preparation of petitions for post-conviction relief,' inmates could not be barred from furnishing assistance to each other. Pp. 577—580.
483 F.2d 1059, affirmed in part, reversed in part, and remanded.
Melvin Kent Kammerlohr, Lincoln, Neb., for petitioners.
Solicitor Gen. Robert H. Bork for the United States, as amicus curiae, by special leave of Court.
Douglas F. Duchek, Lincoln, Neb., for respondent pro hac vice, by special leave of Court.
Mr. Justice WHITE delivered the opinion of the Court.
1
We granted the petition for writ of certiorari in this case, 414 U.S. 1156, 94 S.Ct. 913, 39 L.Ed.2d 108 (1974), because it raises important questions concerning the administration of a state prison.
2
Respondent, on behalf of himself and other inmates of the Nebraska Penal and Correctional Complex, Lincoln, Nebraska, filed a complaint under42 U.S.C. § 19831 challenging several of the practices, rules, and regulations of the Complex. For present purposes, the pertinent allegations were that disciplinary proceedings did not comply with the Due Process Clause of the Fourteenth Amendment to the Federal Constitution; that the inmate legal assistance program did not meet constitutional standards, and that the regulations governing the inspection of mail to and from attorneys for inmates were unconstitutionally restrictive. Respondent requested damages and injunctive relief.
3
After an evidentiary hearing, the District Court granted partial relief. 342 F.Supp. 616 (Neb.1972). Considering itself bound by prior Circuit authority, it rejected the procedural due process claim; but it went on to hold that the prison's policy of inspecting all incoming and outgoing mail to and from attorneys violated prisoners' rights of access to the courts and that the restrictions placed on inmate legal assistance were not constitutionally defective.2
4
The Court of Appeals reversed, 483 F.2d 1059 (CA8 1973), with respect to the due process claim, holding that the procedural requirements outlined by this Court in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), decided after the District Court's opinion in this case, should be generally followed in prison disciplinary hearings but left the specific requirements, including the circumstances in which counsel might be required, to be determined by the District Court on remand. With respect to a remedy, the court further held that Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), forbade the actual restoration of good-time credits in this § 1983 suit but ordered expunged from prison records any determinations of misconduct arrived at in proceedings that failed to comport with due process as defined by the court. The court generally affirmed the judgment of the District Court with respect to correspondence with attorneys,3 but ordered further proceedings to determine whether the State was meeting its burden under Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), to provide legal assistance to prison inmates, the court holding that the State's duty extended to civil rights cases as well as to habeas corpus proceedings.4
5
* We begin with the due process claim. An understanding of the issues involved requires a detailing of the prison disciplinary regime set down by Nebraska statutes and prison regulations.
6
Section 16 of the Nebraska Treatment and Corrections Act, as amended, Neb.Rev.Stat. § 83—185 (Cum.Supp.1972),5 provides that the chief executive officer of each penal facility is responsible for the discipline of inmates in a particular institution. The statute provides for a range of possible disciplinary action. 'Except in flagrant or serious cases, punishment for misconduct shall consist of deprivation of privileges. In cases of flagrant or serious misconduct, the chief executive officer may order that a person's reduction of term as provided in section 83—1,107 (good-time credit6) be forfeited or withheld and also that the person be confined in a disciplinary cell.' Each breach of discipline is to be entered in the person's file together with the disposition or punishment therefor.
7
As the statute makes clear, there are basically two kinds of punishment for flagrant or serious misconduct. The first is the forfeiture or withholding of good-time credits, which affects the term of confinement, while the second, confinement in a disciplinary cell, involves alteration of the conditions of confinement. If the misconduct is less than flagrant or serious, only deprivation of privileges results.7
8
The only statutory provision establishing procedures for the imposition of disciplinary sanctions which pertains to good time, § 38 of the Nebraska Treatment and Corrections Act, as amended, Neb.Rev.Stat. § 83—1,107 (Cum.Supp.1972), merely requires that an inmate be 'consulted regarding the charges of misconduct' in connection with the forfeiture, withholding, or restoration of credit. But prison authorities have framed written regulations dealing with procedures and policies for controlling inmate misconduct.8
9
By regulation, misconduct is classified into two categories: major misconduct is a 'serious violation' and must be formally reported to an Adjustment Committee, composed of the Associate Warden Custody, the Correctional Industries Superintendent, and the Reception Center Director. This Committee is directed to 'review and evaluate all misconduct reports' and, among other things, to 'conduct investigations, make findings, (and) impose disciplinary actions.' If only minor misconduct, 'a less serious violation,' is involved, the problem may either be resolved informally by the inmate's supervisor or it can be formally reported for action to the Adjustment Committee. Repeated minor misconduct must be reported. The Adjustment Committee has available a wide range of sanctions. 'Disciplinary action taken and recommended may include but not necessarily be limited to the following: reprimand, restrictions of various kinds, extra duty, confinement in the Adjustment Center (the disciplinary cell), withholding of statutory good time and/or extra earned good time, or a combination of the elements listed herein.'9
10
Additional procedures have been devised by the Complex governing the actions of the Adjustment Committee. Based on the testimony, the District Court found, 342 F.Supp., at 625—626, that the following procedures were in effect when an inmate is written up or charged with a prison violation:10
11
'(a) The chief correction supervisor reviews the 'write-ups' on the inmates by the officers of the Complex daily; '(b) the convict is called to a conference with the chief correction supervisor and the charging party;
12
'(c) following the conference, a conduct report is sent to the Adjustment Committee;
13
'(d) there follows a hearing before the Adjustment Committee and the report is read to the inmate and discussed;
14
'(e) if the inmate denies charge he may ask questions of the party writing him up;
15
'(f) the Adjustment Committee can conduct additional investigations if it desires;
16
'(g) punishment is imposed.'
II
17
This class action brought by respondent alleged that the rules, practices, and procedures at the Complex which might result in the taking of good time violated the Due Process Clause of the Fourteenth Amendment. Respondent sought three types of relief: (1) restoration of good time; (2) submission of a plan by the prison authorities for a hearing procedure in connection with withholding and forfeiture of good time which complied with the requirements of due process; and (3) damages for the deprivation of civil rights resulting from the use of the allegedly unconstitutional procedures.11
18
At the threshold is the issue whether under Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), the validity of the procedures for depriving prisoners of good-time credits may be considered in a civil rights suit brought under 42 U.S.C. § 1983. In Preiser, state prisoners brought a § 1983 suit seeking an injunction to compel restoration of good-time credits. The Court held that because the state prisoners were challenging the very fact or duration of their confinement and were seeking a speedier release, their sole federal remedy was by writ of habeas corpus, 411 U.S., at 500, 93 S.Ct., at 1841, with the concomitant requirement of exhausting state remedies. But the Court was careful to point out that habeas corpus is not an appropriate or available remedy for damages claims, which, if not frivolous and of sufficient substance to invoke the jurisdiction of the federal court, could be pressed under § 1983 along with suits challenging the conditions of confinement rather than the fact or length of custody. 411 U.S., at 494, 498—499, 93 S.Ct., at 1838, 1840—1841.
19
The complaint in this case sought restoration of good-time credits, and the Court of Appeals correctly held this relief foreclosed under Preiser. But the complaint also sought damages; and Preiser expressly contemplated that claims properly brought under § 1983 could go forward while actual restoration of good-time credits is sought in state proceedings. 411 U.S., at 499 n. 14, 93 S.Ct., at 1841.12 Respondent's damages claim was therefore properly before the District Court and required determination of the validity of the procedures employed for imposing sanctions, including loss of good time, for flagrant or serious misconduct. Such a declaratory judgment as a predicate to a damages award would not be barred by Preiser; and because under that case only an injunction restoring good time improperly taken is foreclosed, neither would it preclude a litigant with standing from obtaining by way of ancillary relief an otherwise proper injunction enjoining the prospective enforcement of invalid prison regulations.
20
We therefore conclude that it was proper for the Court of Appeals and the District Court to determine the validity of the procedures for revoking good-time credits and to fashion appropriate remedies for any constitutional violations ascertained, short of ordering the actual restoration of good time already canceled.13
III
21
Petitioners assert that the procedure for disciplining prison inmates for serious misconduct is a mater of policy raising no constitutional issue. If the position implies that prisoners in state institutions are wholly without the protections of the Constitution and the Due Process Clause, it is plainly untenable. Lawful imprisonment necessarily makes unavailable many rights and privileges of the ordinary citizen, a 'retraction justified by the considerations underlying our penal system.' Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948). But though his rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime. There is no iron curtain drawn between the Constitution and the prisons of this country. Prisoners have been held to enjoy substantial religious freedom under the First and Fourteenth Amendments. Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972); Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964). They retain right of access to the courts. Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142 (1971), aff'g Gilmore v. Lynch, 319 F.Supp. 105 (ND Cal.1970); Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969); Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941). Prisoners are protected under the Equal Protection Clause of the Fourteenth Amendment from invidious discrimination based on race. Lee v. Washington, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968). Prisoners may also claim the protections of the Due Process Clause. They may not be deprived of life, liberty, or property without due process of law. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971); Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945).
22
Of course, as we have indicated, the fact that prisoners retain rights under the Due Process Clause in no way implies that these rights are not subject to restrictions imposed by the nature of the regime to which they have been lawfully committed. Cf. U.S. Civil Service Commission v. National Ass'n of Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973); Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply. Cf. Morrissey v. Brewer, 408 U.S., at 488, 92 S.Ct., at 2603. In sum, there must be mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application.
23
We also reject the assertion of the State that whatever may be true of the Due Process Clause in general or of other rights protected by that Clause against state infringement, the interest of prisoners in disciplinary procedures is not included in that 'liberty' protected by the Fourteenth Amendment. It is true that the Constitution itself does not guarantee good-time credit for satisfactory behavior while in prison. But here the State itself has not only provided a statutory right to good time but also specifies that it is to be forfeited only for serious misbehavior. Nebraska may have the authority to create, or not, a right to a shortened prison sentence through the accumulation of credits for good behavior, and it is true that the Due Process Clause does not require a hearing 'in every conceivable case of government impairment of private interest.' Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 894, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961). But the State having created the right to good time and itself recognizing that its deprivation is a sanction authorized for major misconduct, the prisoner's interest has real substance and is sufficiently embraced within Fourteenth Amendment 'liberty' to entitle him to those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated. This is the thrust of recent cases in the prison disciplinary context. In Haines v. Kerner, supra, the state prisoner asserted a 'denial of due process in the steps leading to (disciplinary) confinement.' 404 U.S., at 520, 92 S.Ct., at 595. We reversed the dismissal of the § 1983 complaint for failure to state a claim. In Preiser v. Rodriguez, supra, the prisoner complained that he had been deprived of good-time credits without notice or hearing and without due process of law. We considered the claim a proper subject for a federal habeas corpus proceeding.
24
This analysis as to liberty parallels the accepted due process analysis as to property. The Court has consistently held that some kind of hearing is required at some time before a person is finally deprived of his property interests. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 646, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring). The requirement for some kind of a hearing applies to the taking of private property, Grannis v. Ordean, 234 U.S. 385, 34 S.Ct. 779, 58 L.Ed. 1363 (1914), the revocation of licenses, In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968), the operation of state dispute-settlement mechanisms, when one person seeks to take property from another, or to government-created jobs held, absent 'cause' for termination, Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Arnett v. Kennedy, 416 U.S. 134, 164, 94 S.Ct. 1633, 1649, 40 L.Ed.2d 15 (1974) (Powell, J., concurring); id., at 171, 94 S.Ct., at 1652 (White, J., concurring in part and dissenting in part); id., at 206, 94 S.Ct., at 1670 (Marshall, J., dissenting). Cf. Stanley v. Illinois, 405 U.S. 645, 652—654, 92 S.Ct. 1208, 1213—1214, 31 L.Ed.2d 551 (1972); Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971).
25
We think a person's liberty is equally protected, even when the liberty itself is a statutory creation of the State. The touchstone of due process is protection of the individual against arbitrary action of government, Dent v. West Virginia, 129 U.S. 114, 123, 9 S.Ct. 231, 233, 32 L.Ed. 623 (1889). Since prisoners in Nebraska can only lose good-time credits if they are guilty of serious misconduct, the determination of whether such behavior has occurred becomes critical, and the minimum requirements of procedural due process appropriate for the circumstances must be observed.
IV
26
As found by the District Court, the procedures employed are: (1) a preliminary conference with the Chief Corrections Supervisor and the charging party, where the prisoner is informed of the misconduct charge and engages in preliminary discussion on its merits; (2) the preparation of a conduct report and a hearing before the Adjustment Committee, the disciplinary body of the prison, where the report is read to the inmate; and (3) the opportunity at the hearing to ask questions of the charging party. The State contends that the procedures already provided are adequate. The Court of Appeals held them insufficient and ordered that the due process requirements outlined in Morrissey and Scarpelli be satisfied in serious disciplinary cases at the prison.
27
Morrissey held that due process imposed certain minimum procedural requirements which must be satisfied before parole could finally be revoked. These procedures were:
28
'(a) written notice of the claimed violations of parole; (b) disclosure to the 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 lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.' 408 U.S., at 489, 92 S.Ct., at 2604.
29
The Court did not reach the question as to whether the parolee is entitled to the assistance of retained counsel or to appointed counsel, if he is indigent. Following the decision in Morrissey, in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), the Court held the requirements of due process established for parole revocation were applicable to probation revocation proceedings. The Court added to the required minimum procedures of Morrissey the right to counsel, where a probationer makes 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.' Id., at 790, 93 S.Ct., at 1764. In doubtful cases, the agency was to consider whether the probationer appeared to be capable of speaking effectively for himself, id., at 790—791, 93 S.Ct., at 1763—1764, and a record was to be made of the grounds for refusing to appoint counsel.
30
We agree with neither petitioners nor the Court of Appeals: the Nebraska procedures are in some respects constitutionally deficient but the Morrissey-Scarpelli procedures need not in all respects be followed in disciplinary cases in state prisons.
31
We have often repeated that '(t)he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.' Cafeteria & Restaurant Workers v. McElroy, 367 U.S., at 895, 81 S.Ct., at 1748. '(C)onsideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.' Ibid.; Morrissey, 408 U.S., at 481, 92 S.Ct., at 2600. Viewed in this light it is immediately apparent that one cannot automatically apply procedural rules designed for free citizens in an open society, or for parolees or probationers under only limited restraints, to the very different situation presented by a disciplinary proceeding in a state prison.
32
Revocation of parole may deprive the parolee of only conditional liberty, but it nevertheless 'inflicts a 'grievous loss' on the parolee and often on others.' Morrissey, Id., at 482, 92 S.Ct., at 2601. Simply put, revocation proceedings determine whether the parolee will be free or in prison, a matter of obvious great moment to him. For the prison inmate, the deprivation of good time is not the same immediate disaster that the revocation of parole is for the parolee. The deprivation, very likely, does not then and there work any change in the conditions of his liberty. It can postpone the date of eligibility for parole and extend the maximum term to be served, but it is not certain to do so, for good time may be restored. Even if not restored, it cannot be said with certainty that the actual date of parole will be affected; and if parole occurs, the extension of the maximum term resulting from loss of good time may affect only the termination of parole, and it may not even do that. The deprivation of good time is unquestionably a matter of considerable importance. The State reserves it as a sanction for serious misconduct, and we should not unrealistically discount its significance. But it is qualitatively and quantitatively different from the revocation of parole or probation.
33
In striking the balance that the Due Process Clause demands, however, we think the major consideration militating against adopting the full range of procedures suggested by Morrissey for alleged parole violators is the very different stake the State has in the structure and content of the prison disciplinary hearing. That the revocation of parole be justified and based on an accurate assessment of the facts is a critical matter to the State as well as the parolee; but the procedures by which it is determined whether the conditions of parole have been breached do not themselves threaten other important state interests, parole officers, the police, or witnesses—at least no more so than in the case of the ordinary criminal trial. Prison disciplinary proceedings, on the other hand, take place in a closed, tightly controlled environment peopled by those who have chosen to violate the criminal law and who have been lawfully incarcerated for doing so. Some are first offenders, but many are recidivists who have repeatedly employed illegal and often very violent means to attain their ends. They may have little regard for the safety of others or their property or for the rules designed to provide an orderly and reasonably safe prison life. Although there are very many varieties of prisons with different degrees of security, we must realize that in many of them the inmates are closely supervised and their activities controlled around the clock. Guards and inmates co-exist in direct and intimate contact. Tension between them is unremitting. Frustration, resentment, and despair are commonplace. Relationships among the inmates are varied and complex and perhaps subject to the unwritten code that exhorts inmates not to inform on a fellow prisoner.
34
It is against this background that disciplinary proceedings must be structured by prison authorities; and it is against this background that we must make our constitutional judgments, realizing that we are dealing with the maximum security institution as well as those where security considerations are not paramount. The reality is that disciplinary hearings and the imposition of disagreeable sanctions necessarily involve confrontations between inmates and authority and between inmates who are being disciplined and those who would charge or furnish evidence against them. Retaliation is much more than a theoretical possibility; and the basic and unavoidable task of providing reasonable personal safety for guards and inmates may be at stake, to say nothing of the impact of disciplinary confrontations and the resulting escalation of personal antagonism on the important aims of the correctional process.
35
Indeed, it is pressed upon us that the proceedings to ascertain and sanction misconduct themselves play a major role in furthering the institutional goal of modifying the behavior and value systems of prison inmates sufficiently to permit them to live within the law when they are released. Inevitably there is a great range of personality and character among those who have transgressed the criminal law. Some are more amenable to suggestion and persuasion than others. Some may be incorrigible and would merely disrupt and exploit the disciplinary process for their own ends. With some, rehabilitation may be best achieved by simulating procedures of a free society to the maximum possible extent; but with others, it may be essential that discipline be swift and sure.14 In any event, it is argued, there would be great unwisdom in encasing the disciplinary procedures in an inflexible constitutional straitjacket that would necessarily call for adversary proceedings typical of the criminal trial, very likely raise the level of confrontation between staff and inmate, and make more difficult the utilization of the disciplinary process as a tool to advance the rehabilitative goals of the institution. This consideration, along with the necessity to maintain an acceptable level of personal security in the institution, must be taken into account as we now examine in more detail the Nebraska procedures that the Court of Appeals found wanting.
V
36
Two of the procedures that the Court held should be extended to parolees facing revocation proceedings are not, but must be, provided to prisoners in the Nebraska Complex if the minimum requirements of procedural due process are to be satisfied. These are advance written notice of the claimed violation and a written statement of the factfinders as to the evidence relied upon and the reasons for the disciplinary action taken. As described by the Warden in his oral testimony, on the basis of which the District Court made its findings, the inmate is now given oral notice of the charges against him at least as soon as the conference with the Chief Corrections Supervisor and charging party. A written record is there compiled and the report read to the inmate at the hearing before the Adjustment Committee where the charges are discussed and pursued. There is no indication that the inmate is ever given a written statement by the Committee as to the evidence or informed in writing or otherwise as to the reasons for the disciplinary action taken.
37
Part of the function of notice is to give the charged party a chance to marshal the facts in his defense and to clarify what the charges are, in fact. See In re Gault, 387 U.S. 1, 33—34, and n. 54, 87 S.Ct. 1428, 1446—1447, 18 L.Ed.2d 527 (1967). Neither of these functions was performed by the notice described by the Warden. Although the charges are discussed orally with the inmate somewhat in advance of the hearing, the inmate is sometimes brought before the Adjustment Committee shortly after he is orally informed of the charges. Other times, after this initial discussion, further investigation takes place which may reshape the nature of the charges or the evidence relied upon. In those instances, under procedures in effect at the time of trial, it would appear that the inmate first receives notice of the actual charges at the time of the hearing before the Adjustment Committee. We hold that written notice of the charges must be given to the disciplinary-action defendant in order to inform him of the charges and to enable him to marshal the facts and prepare a defense. At least a brief period of time after the notice, no less than 24 hours, should be allowed to the inmate to prepare for the appearance before the Adjustment Committee.
38
We also hold that there must be a 'written statement by the factfinders as to the evidence relied on and reasons' for the disciplinary action. Morrissey, 408 U.S., at 489, 92 S.Ct., at 2604. Although Nebraska does not seem to provide administrative review of the action taken by the Adjustment Committee, the actions taken at such proceedings may involve review by other bodies. They might furnish the basis of a decision by the Director of Corrections to transfer an inmate to another institution because he is considered 'to be incorrigible by reason of frequent intentional breaches of discipline,' Neb.Rev.Stat. § 83—185(4) (Cum.Supp.1972), and the certainly likely to be considered by the state parole authorities in making parole decisions.15 Written records of proceedings will thus protect the inmate against collateral consequences based on a misunderstanding of the nature of the original proceeding. Further, as to the disciplinary action itself, the provision for a written record helps to insure that administrators, faced with possible scrutiny by state officials and the public, and perhaps even the courts, where fundamental constitutional rights may have been abridged, will act fairly. Without written records, the inmate will be at a severe disadvantage in propounding his own cause to or defending himself from others. It may be that there will be occasions when personal or institutional safety is so implicated that the statement may properly exclude certain items of evidence, but in that event the statement should indicate the fact of the omission. Otherwise, we perceive no conceivable rehabilitative objective or prospect of prison disruption that can flow from the requirement of these statements.16
39
We are also of the opinion that the inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals. Ordinarily, the right to present evidence is basic to a fair hearing; but the unrestricted right to call witnesses from the prison population carries obvious potential for disruption and for interference with the swift punishment that in individual cases may be essential to carrying out the correctional program of the institution. We should not be too ready to exercise oversight and put aside the judgment of prison administrators. It may be that an individual threatened with serious sanctions would normally be entitled to present witnesses and relevant documentary evidence; but here we must balance the inmate's interest in avoiding loss of good time against the needs of the prison, and some amount of flexibility and accommodation is required. Prison officials must have the necessity discretion to keep the hearing within reasonable limits and to refuse to call witnesses that may create a risk of reprisal or undermine authority, as well as to limit access to other inmates to collect statements or to compile other documentary evidence. Although we do not prescribe it, it would be useful for the Committee to state its reason for refusing to call a witness, whether it be for irrelevance, lack of necessity, or the hazards presented in individual cases. Any less flexible rule appears untenable as a constitutional matter, at least on the record made in this case. The operation of a correctional institution is at best an extraordinarily difficult undertaking. Many prison officials, on the spot and with the responsibility for the safety of inmates and staff, are reluctant to extend the unqualified right to call witnesses; and in our view, they must have the necessary discretion without being subject to unduly crippling constitutional impediments. There is this much play in the joints of the Due Process Clause, and we stop short of imposing a more demanding rule with respect to witnesses and documents.
40
Confrontation and cross-examination present greater hazards to institutional interests.17 If confrontation and cross-examination of those furnishing evidence against the inmate were to be allowed as a matter of course, as in criminal trials, there would be considerable potential for havoc inside the prison walls. Proceedings would inevitably be longer and tend to unmanageability. These procedures are essential in criminal trials where the accused, if found guilty, may be subjected to the most serious deprivations, Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), or where a person may lose his job in society, Greene v. McElroy, 360 U.S. 474, 496—497, 79 S.Ct. 1400, 1413-1414, 3 L.Ed.2d 1377 (1959). But they are not rights universally applicable to all hearings. See Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). Rules of procedure may be shapped by consideration of the risks of error, In re Winship, 397 U.S. 358, 368, 90 S.Ct. 1068, 1074, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring); Arnett v. Kennedy, supra, 416 U.S., at 171, 94 S.Ct., at 1652 (White, J., concurring in part and dissenting in part), and should also be shaped by the consequences which will follow their adoption. Although some States do seem to allow cross-examination in disciplinary hearings,18 we are not apprised of the conditions under which the procedure may be curtailed; and it does not appear that confrontation and cross-examination are generally required in this context. We think that the Constitution should not be read to impose the procedure at the present time and that adequate bases for decision in prison disciplinary cases can be arrived at without cross-examination.
41
Perhaps as the problems of penal institutions change and correctional goals are reshaped, the balance of interests involved will require otherwise. But in the current environment, where prison disruption remains a serious concern to administrators, we cannot ignore the desire and effort of many States, including Nebraska, and the Federal Government to avoid situations that may trigger deep emotions and that may scuttle the disciplinary process as a rehabilitation vehicle. To some extent, the American adversary trial presumes contestants who are able to cope with the presures and aftermath of the battle, and such may not generally be the case of those in the prisons of this country. At least, the Constitution, as we interpret it today, does not require the contrary assumption. Within the limits set forth in this opinion we are content for now to leave the continuing development of measures to review adverse actions affecting inmates to the sound discretion of corrections officials administering the scope of such inquiries.
42
We recognize that the problems of potential disruption may differ depending on whom the inmate proposes to cross-examine. If he proposes to examine an unknown fellow inmate, the danger may be the greatest, since the disclosure of the identity of the accuser, and the cross-examination which will follow, may pose a high risk of reprisal within the institution. Conversely, the inmate accuser, who might freely tell his story privately to prison officials, may refuse to testify or admit any knowledge of the situation in question. Although the dangers posed by cross-examination of known inmate accusers, or guards, may be less, the resentment which may persist after confrontation may still be substantial. Also, even where the accuser or adverse witness is known, the disclosure of third parties may pose a problem. There may be a class of cases where the facts are closely disputed, and the character of the parties minimizes the dangers involved. However, any constitutional rule tailored to meet these situations would undoubtedly produce great litigation and attendant costs in a much wider range of cases. Further, in the last analysis, even within the narrow range of cases where interest balancing may well dictate cross-examination, courts will be faced with the assessment of prison officials as to the dangers involved, and there would be a limited basis for upsetting such judgments. The better course at this time, in a period where prison practices are diverse and somewhat experimental, is to leave these matters to the sound discretion of the officials of state prisons.
43
As to the right to counsel, the problem as outlined in Scarpelli with respect to parole and probation revocation proceedings is even more pertinent here:
44
'The introduction of counsel into a revocation proceeding will alter significanctly 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.' 411 U.S., at 787—788, 93 S.Ct., at 1762 (footnote omitted).
45
The insertion of counsel into the disciplinary process would inevitably give the proceedings a more adversary cast and tend to reduce their utility as a means to further correctional goals. There would also be delay and very practical problems in providing counsel in sufficient numbers at the time and place where hearings are to be held. At this stage of the development of these procedures we are not prepared to hold that inmates have a right to either retained or appointed counsel in disciplinary proceedings.
46
Where an illiterate inmate is involved, however, or whether the complexity of the issue makes it unlikely that the inmate will be able to collect and present the evidence necessary for an adequate comprehension of the case, he should be free to seek the aid of a fellow inmate, or if that is forbidden, to have adequate substitute aid in the form of help from the staff or from a sufficiently competent inmate designated by the staff. We need not pursue the matter further here, however, for there is no claim that the named respondent, McDonnell, is within the class of inmates entitled to advice or help from others in the course of a prison disciplinary hearing.
47
Finally, we decline to rule that the Adjustment Committee which conducts the required hearings at the Nebraska Prison Complex and determines whether to revoke good time is not sufficiently impartial to satisfy the Due Process Clause. The Committee is made up of the Associate Warden Custody as chairman, the Correctional Industries Superintendent, and the Reception Center Director. The Chief Corrections Supervisor refers cases to the Committee after investigation and an initial interview with the inmate involved. The Committee is not left at large with unlimited discretion. It is directed to meet daily and to operate within the principles stated in the controlling regulations, among which is the command that '(f)ull consideration must be given to the causes for the adverse behavior, the setting and circumstances in which it occurred, the man's accountability, and the correctional treatment goals,' as well as the direction that 'disciplinary measures will be taken only at such times and to such degrees as are necessary to regulate and control a man's behavior within acceptable limits and will never be rendered capriciously or in the nature of retaliation or revenge.' We find no warrant in the record presented here for concluding that the Adjustment Committee presents such a hazard of arbitrary decisionmaking that it should be held violative of due process of law.
48
Our conclusion that some, but not all, of the procedures specified in Morrissey and Scarpelli must accompany the deprivation of good time by state prison authorities19 is not graven in stone. As the nature of the prison disciplinary process changes in future years, circumstances may then exist which will require further consideration and reflection of this Court. It is our view, however, that the procedures we have now required in prison disciplinary proceedings represent a reasonable accommodation between the interests of the inmates and the needs of the institution.20
VI
49
The Court of Appeals held that the due process requirements in prison disciplinary proceedings were to apply retroactively so as to require that prison records containing determinations of misconduct, not in accord with required procedures, be expunged. We disagree and reverse on this point.
50
The question of retroactivity of new procedural rules affecting inquiries into infractions of prison discipline is effectively foreclosed by this Court's ruling in Morrissey that the due process requirements there announced were to be 'applicable to future revocations of parole,' 408 U.S., at 490, 92 S.Ct., at 2604 (emphasis supplied). Despite the fact that procedures are related to the integrity of the factfinding process, in the context of disciplinary proceedings, where less is generally at stake for an individual than at a criminal trial, great weight should be given to the significant impact a retroactivity ruling would have on the administration of all prisons in the country, and the reliance prison officials placed, in good faith, on prior law not requiring such procedures. During 1973, the Federal Government alone conducted 19,000 misconduct hearings, as compared with 1,173 parole revocation hearings, and 2,023 probation revocation hearings. If Morrissey-Scarpelli rules are not retroactive out of consideration for the burden on federal and state officials, this case is a fortiori. We also note that a contrary holding would be very troublesome for the parole system since performance in prison is often a relevant criterion for parole. On the whole, we do not think that error was so pervasive in the system under the old procedures as to warrant this cost or result.
VII
51
The issue of the extent to which prison authorities can open and inspect incoming mail from attorneys to inmates, has been considerably narrowed in the course of this litigation. The prison regulation under challenge provided that '(a)ll incoming and outgoing mail will be read and inspected,' and no exception was made for attorney-prisoner mail. The District Court held that incoming mail from attorneys might be opened if normal contraband detection techniques failed to disclose contraband, and if there was a reasonable possibility that contraband would be included in the mail. It further held that if an incoming letter was marked 'privileged,' thus identifying it as from an attorney, the letter could not be opened except in the presence of the inmate. Prison authorities were not to read the mail from attorneys. The Court of Appeals affirmed the District Court order, but placed additional restrictions on prison authorities. If there was doubt that a letter was actually from an attorney, 'a simple telephone call should be enough to settle the matter,' 483 F.2d at 1067, the court thus implying that officials might have to go beyond the face of the envelope, and the 'privileged' label, in ascertaining what kind of communication was involved. The court further stated that 'the danger that a letter from an attorney, an officer of the court, will contain contraband is ordinarily too remote and too speculative to justify the (petitioners') regulation permitting the opening and inspection of all legal mail.' Ibid. While methods to detect contraband could be employed, a letter was to be opened only 'in the appropriate circumstances' in the presence of the inmate.
52
Petitioners now concede that they cannot open and read mail from attorneys to inmates, but contend that they may open all letters from attorneys as long as it is done in the presence of the prisoners. The narrow issue thus presented is whether letters determined or found to be from attorneys may be opened by prison authorities in the presence of the inmate or whether such mail must be delivered unopened if normal detection techniques fail to indicate contraband.
53
Respondent asserts that his First, Sixth, and Fourteenth Amendment rights are infringed, under a procedure whereby the State may open mail from his attorney, even though in his presence and even though it may not be read. To begin with, the constitutional status of the rights asserted, as applied in this situation, is far from clear. While First Amendment rights of correspondents with prisoners may protect against the censoring of inmate mail, when not necessary to protect legitimate governmental interests, see Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), this Court has not yet recognized First Amendment rights of prisoners in this context, cf. Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972); Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964). Furthermore, freedom from censorship is not equivalent to freedom from inspection or perusal. As to the Sixth Amendment, its reach is only to protect the attorney-client relationship from intrusion in the criminal setting, see Black v. United States, 385 U.S. 26, 87 S.Ct. 190, 17 L.Ed.2d 26 (1966); O'Brien v. United States, 386 U.S. 345, 87 S.Ct. 1158, 18 L.Ed.2d 94 (1967); see also Coplon v. United States, 89 U.S.App.D.C. 103, 191 F.2d 749 (1951), while the claim here would insulate all mail from inspection, whether related to civil or criminal matters. Finally, the Fourteenth Amendment due process claim based on access to the courts, Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941); 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), has not been extended by this Court to apply further than protecting the ability of an inmate to prepare a petition or complaint. Moreover, even if one were to accept the argument that inspection of incoming mail from an attorney placed an obstacle to access to the court, it is far from clear that this burden is a substantial one. We need not decide, however, which, if any, of the asserted rights are operative here, for the question is whether, assuming some constitutional right is implicated, it is infringed by the procedure now found acceptable by the State.
54
In our view, the approach of the Court of Appeals is unworkable and none of the above rights is infringed by the procedures petitioners now accept. If prison officials had to check in each case whether a communication was from an attorney before opening it for inspection, a near impossible task of administration would be imposed. We think it entirely appropriate that the State require any such communications to be specially marked as originating from an attorney, with his name and address being given, if they are to receive special treatment. It would also certainly be permissible that prison authorities require that a lawyer desiring to correspond with a prisoner, first identify himself and his client to the prison officials, to assure that the letters marked privileged are actually from members of the bar. As to the ability to open the mail in the presence of inmates, this could in no way constitute censorship, since the mail would not be read. Neither could it chill such communications, since the inmate's presence insures that prison officials will not read the mail. The possibility that contraband will be enclosed in letters, even those from apparent attorneys, surely warrants prison officials' opening the letters. We disagree with the Court of Appeals that this should only be done in 'appropriate circumstances.' Since a flexible test, besides being unworkable, serves no arguable purpose in protecting any of the possible constitutional rights enumerated by respondent, we think that petitioners, by acceding to a rule whereby the inmate is present when mail from attorneys is inspected, have done all, and perhaps even more, than the Constitution requires.
VIII
55
The last issue presented is whether the Complex must, make available, and if so has made available, adequate legal assistance, under Johnson v. Avery, supra, for the preparation of habeas corpus petitions and civil rights actions by inmates. The issue arises in the context of a challenge to a regulation providing, in pertinent part:
56
'Legal Work
57
'A legal advisor has been appointed by the Warden for the benefit of those offenders who are in need of legal assistance. This individual is an offender who has general knowledge of the law procedure. He is not an attorney and can not represent you as such.
58
'No other offender than the legal advisor is permitted to assist you in the preparation of legal documents unless with the specific written permission of the Warden.'
59
Respondent contended that this regulation was invalid because it failed to allow inmates to furnish assistance to one another. The District Court assumed that the Warden freely gave permission to inmates to give assistance to each other, and that Johnson v. Avery, supra, was thereby satisfied. The Court of Appeals found that the record did not support the assumption and that permission has been denied solely because of the existence of the inmate legal advisor, one of the inmates specially approved by the prison authorities. It decided, therefore, to remand the case to decide whether the one advisor satisfied the requirements of Johnson v. Avery. In so doing, the court stated that in determining the need for legal assistance, petitioners were to take into account the need for assistance in civil rights actions as well as habeas corpus suits.
60
In Johnson v. Avery, an inmate was diciplined for violating a prison regulation which prohibited inmates from assisting other prisoners in preparing habeas corpus petitions. The Court held that 'unless and until the State provides some reasonable alternative to assist inmates in the preparation of petitions for post-conviction relief,' inmates could not be barred from furnishing assistance to each other. 393 U.S., at 490, 89 S.Ct., at 751. The court emphasized that the writ of habeas corpus was of fundamental importance in our constitutional scheme, and since the basic purpose of the writ 'is to enable those unlawfully incarcerated to obtain their freedom, it is fundamental that access of prisoners to the courts for the purpose of presenting their complaints may not be denied or obstructed.' Id., at 485, 89 S.Ct., at 749. Following Avery, the Court, in Younger v. Gilmore, supra, affirmed a three-judge court judgment which required state officials to provide indigent inmates with access to a reasonably adequate law library for preparation of legal actions.
61
Petitioners contend that Avery is limited to assistance in the preparation of habeas corpus petitions and disputes the direction of the Court of Appeals to the District Court that the capacity of the inmate adviser be assessed in light of the demand for assistance in civil rights actions as well as in the preparation of habeas petitions. Petitioners take too narrow a view of that decision.
62
First, the demarcation line between civil rights actions and habeas petitions is not always clear. The Court has already recognized instances where the same constitutional rights might be redressed under either form of relief. Cf. Preiser v. Rodriquez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971). Second, while it is true that only in habeas actions may relief be granted which will shorten the term of confinement, Preiser, supra, it is more pertinent that both actions serve to protect basic constitutional rights. The right of access to the courts, upon which Avery was premised, is founded in the Due Process Clause and assures that no person will be denied the opportunity to present to the judiciary allegations concerning violations of fundamental constitutional rights. It is futile to contend that the Civil Rights Act of 1871 has less importance in our constitutional scheme than does the Great Writ. The recognition by this Court that prisoners have certain constitutional rights which can be protected by civil rights actions would be diluted if inmates, often 'totally or functionally illiterate,' were unable to articulate their complaints to the courts. Although there may be additional burdens on the Complex, if inmates may seek help from other inmates, or from the inmate adviser if he proves adequate, in both habeas and civil rights actions, this should not prove overwhelming. At present only one inmate serves as legal adviser and it may be expected that other qualified inmates could be found for assistance if the Complex insists on naming the inmates from whom help may be sought.
63
Finding no reasonable distinction between the two forms of actions, we affirm the Court of Appeals on this point, and as the Court of Appeals suggested, the District Court will assess the adequacy of legal assistance under the reasonable-alternative standard of Avery.
64
Affirmed in part, reversed in part.
65
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, concurring in part and dissenting in part.
66
I join Part VIII of the Court's opinion, holding that the Complex may not prohibit inmates from assisting one another in the preparation of legal documents unless it provides adequate alternative legal assistance for the preparation of civil rights actions as well as petitions for habeas corpus relief. I also agree with the result reached in Part VII of the opinion of the Court, upholding the inspection of mail from attorneys for contraband by opening letters in the presence of the inmate. While I have previously expressed my view that the First Amendment rights of prisoners prohibit the reading of inmate mail, see Procunier v. Martinez, 416 U.S. 396, 422, 94 S.Ct. 1800, 1815, 40 L.Ed.2d 224 (1974) (concurring opinion), and while I believe that inmates' rights to counsel and to access to the courts are also implicated here, I do not see how any of these constitutional rights are infringed to any significant extent by the mere inspection of mail in the presence of the inmate.
67
My disagreement with the majority is over its disposition of the primary issue presented by this case, the extent of the procedural protections required by the Due Process Clause of the Fourteenth Amendment in prison disciplinary proceedings. I have previously stated my view that a prisoner does not shed his basic constitutional rights at the prison gate, and I fully support the Court's holding that the interest of inmates in freedom from imposition of serious discipline is a 'liberty' entitled to due process protection.1 But, in my view, the content which the Court gives to this due process protection leaves these noble holdings as little more than empty promises. To be sure, the Court holds that inmates are constitutionally entitled to advance written notice of the charges against them and a statement of the evidence relied on, the facts found, and the reasons supporting the disciplinary board's decision. Apparently, an inmate is also constitutionally entitled to a hearing and an opportunity to speak in his own defense. These are valuable procedural safeguards, and I do not mean for a moment to denigrate their importance.
68
But the purpose of notice is to give the accused the opportunity to prepare a defense, and the purpose of a hearing is to afford him the chance to present that defense. Today's decision deprives an accused inmate of any enforceable constitutional right to the procedural tools essential to the presentation of any meaningful defense, and makes the required notice and hearing formalities of little utility. Without the enforceable right to call witnesses and present documentary evidence, an accused inmate is not guaranteed the right to present any defense beyond his own word. Without any right to confront and cross-examine adverse witnesses, the inmate is afforded no means to challenge the word of his accusers. Without these procedures, a disciplinary board cannot resolve disputed factual issues in any rational or accurate way. The hearing will thus amount to little more than a swearing contest, with each side telling its version of the facts and, indeed, with only the prisoner's story subject to being tested by cross-examination. In such a contest, it seems obvious to me that even the wrongfully charged inmate will invariably be the loser. I see no justification for the Court's refusal to extend to prisoners these procedural safeguards which in every other context we have found to be among the 'minimum requirements of due process.' Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972) (emphasis added).
69
The Court states that it is 'of the opinion that the inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.' Ante, at 566. Since the Court is not ordinarily in the business of giving neighborly advice to state correctional authorities, I think it fair to assume that this statement represents the considered judgment of the Court that the Constitution requires that an accused inmate be permitted to call defense witnesses and present documentary evidence. Still, the Court hardly makes this clear, and ends up deferring to the discretion of prison officials to the extent that the right recognized is, as my Brother DOUGLAS demonstrates, post, at 2994—2995, practically unenforceable.
70
I would make clear that an accused inmate's right to present witnesses and submit other evidence in his defense is constitutionally protected and, if nnecessarily abridged, judicially enforceable. As we said only last Term: 'Few rights are more fundamental than that of an accused to present witnesses in his own defense.' Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973).
71
'The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the (hearing body) so it may decide where the truth lies.' Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967).
72
See also Morrissey v. Brewer, supra, 408 U.S., at 489, 92 S.Ct., at 2604; In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682 (1948). The right to present the testimony of impartial witnesses and real evidence to corroborate his version of the facts is particularly crucial to an accused inmate, who obviously faces a severe credibility problem when trying to disprove the charges of a prison guard. See Clutchette v. Procunier, 497 F.2d 809, 818 (CA9 1974); ABA Commission on Correctional Facilities and Services, Survey of Prison Disciplinary Practices and Procedures 19 (1974) (hereinafter ABA Survey).
73
I see no persuasive reason to justify the Court's refusal to afford this basic right to an accused inmate. The majority cites the possible interference with 'swift punishment.' But how often do we have to reiterate that the Due Process Clause 'recognizes higher values than speed and efficiency'? Fuentes v. Shevin, 407 U.S. 67, 90—91, n. 22, 92 S.Ct. 1983, 1999, 32 L.Ed.2d 556 (1972). Surely the brief prolongation of disciplinary hearings required to hear the testimony of a few witnesses before reaching what would otherwise seem to be a pre-ordained decision provides no support whatever for refusal to give accused inmates this right. Nor do I see the 'obvious potential for disruption' that the majority relies upon in the context of an inmate's right to call defense witnesses.
74
But even if the majority's fear in this regard is justified, the point that must be made clear is that the accused prisoner's right to present witnesses is the constitutional rule and that the needs of prison security must be accommodated within a narrowly limited exception to that rule. The inmate's right to call witnesses should, of course, be subject to reasonable limitation by the disciplinary board to prevent undue delay caused by an inmate's calling numerous cumulative witnesses or witnesses whose contributions would be of marginal relevance. The right to call a particular witness could also justifiably be limited if necessary to protect a confidential informant against a substantial risk of reprisal. I agree with the Court that there is this much flexibility in the due process requirement. But in my view the exceptions made to the constitutional rule must be kept to an absolute minimum, and each refusal to permit witnesses justified in writing in the disciplinary file, a rule the majority finds 'useful' but inexplicably refuses to prescribe. Ante, at 566. And if prison authorities persist in a niggardly interpretation of the inmates' right to call witnesses, it must ultimately be up to the courts to exercise their great responsibility under our constitutional plan and enforce this fundamental constitutional right.
75
With respect to the rights of confrontation and cross-examination, the gulf between the majority opinion and my views is much wider. In part, this disagreement appears to stem from the majority's view that these rights are just not all that important. Thus, the Court states—not surprisingly, without citation of authority, other than Mr. Justice White's separate opinion in Arnett v. Kennedy, 416 U.S. 134, 171, 94 S.Ct. 1633, 1652, 40 L.Ed.2d 15 (1974)—that confrontation and cross-examination 'are not rights universally applicable to all hearings.' Ante, at 567. And the Court suggests that while these procedures may be essential in situations where 'serious deprivations' like loss of employment are at stake, they are not so essential here. I suppose the majority considers loss of a job to be a more serious penalty than the imposition of an additional prison sentence—on this record, ranging up to 18 months which is the effective result of withdrawal of accummulated good time.
76
I could not disagree more, both with respect to the seriousness of the deprivation involved here and the importance of these rights. Our decisions flatly reject the Court's view of the dispenability of confrontation and cross-examination. We have held that '(i)n almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.' Goldberg v. Kelly, 397 U.S. 254, 269, 90 S.Ct. 1011, 1021, 25 L.Ed.2d 287 (1970). And in Greene v. McElroy, 360 U.S. 474, 496, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377 (1959), we found that the view that cross-examination and confrontation must be permitted whenever 'governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings' was one of the 'immutable' principles of our jurisprudence—immutable, that is, until today. See also Arnett v. Kennedy, supra, 416 U.S., at 215, 94 S.Ct., at 1668 (Marshall, J., dissenting); Chambers v. Mississippi, supra, 410 U.S., at 294—295, 93 S.Ct., at 1045—1046; Morrissey v. Brewer, 408 U.S., at 489, 92 S.Ct., at 2604; In re Gault, 387 U.S. 1, 56 57, 87 S.Ct. 1428, 1458—1459, 18 L.Ed.2d 527 (1967). Surely confrontation and cross-examination are as crucial in the prison disciplinary context as in any other, if not more so. Prison disciplinary proceedings will invariably turn on disputed questions of fact, see Landman v. Royster, 333 F.Supp. 621, 653 (ED Va.1971), and, in addition to the usual need for cross-examination to reveal mistakes of identity, faulty perceptions, or cloudy memories, there is a significant potential for abuse of the disciplinary process by 'persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy,' Greene v. McElroy, supra, 360 U.S., at 496, 79 S.Ct., at 1413, whether these be other inmates seeking revenge or prison guards seeking to vindicate their otherwise absolute power over the men under their control. See also Davis v. Alaska, 415 U.S. 308, 317, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974). I can see no rational means for resolving these disputed questions of fact without providing confrontation and cross-examination.
77
The majority, however, denies accused prisoners these basic constitutional rights, and leaves these matters for now to the 'sound discretion' of prison officials. Since we already know how Nebraska authorities, at least, have chosen to exercise this discretion, the Court necessarily puts its stamp of approval on the State's failure to provide confrontation and cross-examination. I see no persuasive justification for this result. The Court again cites concern for administrative efficiency in support of its holding: 'Proceedings would inevitably be longer and tend to unmanageability.' Ante, at 567. I can only assume that these are makeweights, for I refuse to believe that the Court would deny fundamental rights in reliance on such trivial and easily handled concerns.
78
A more substantial problem with permitting the accused inmate to demand confrontation with adverse witnesses is the need to preserve the secrecy of the identity of inmate informers and protect them from the danger of reprisal. I am well aware of the seriousness of this problem, and I agree that in some circumstances this confidentiality must prevail over the accused's right of confrontation. 'But this concern for the safety of inmates does not justify a wholesale denial of the right to confront and cross-examine adverse witnesses.' Clutchette v. Procunier, 497 F.2d, at 819. The need to keep the identity of informants confidential will exist in only a small percentage of disciplinary cases. Whether because of the 'inmates' code' or otherwise, the disciplinary process is rarely initiated by a fellow inmate and almost invariably by a correctional officer. I see no legitimate need to keep confidential the identity of a prison guard who files charges against an inmate; indeed, Nebraska, like most States, routinely informs accused prisoners of the identity of the correctional officer who is the charging party, if he does not already know. In the relatively few instances where inmates press disciplinary charges, the accused inmate often knows the identity of his accuser, as, for example, where the accuser was the victim of a physical assault.
79
Thus, the Court refuses to enforce prisoners' fundamental procedural rights because of a legitimate concern for secrecy which must affect only a tiny fraction of disciplinary cases. This is surely permitting the tail to wag the constitutional dog. When faced with a similar problem in Morrissey v. Brewer, supra, we nonetheless, held that the parolee had the constitutional right to confront and cross-examine adverse witnesses, and permitted an exception to be made 'if the hearing officer determines that an informant would be subjected to risk of harm if his identity were disclosed.' 408 U.S., at 487, 92 S.Ct., at 2603. In my view, the same approach would be appropriate here.
80
Aside from the problem of preserving the confidentiality of inmate informers, the Court does not require confrontation and cross-examination of known accusers, whether inmates or guards, and indeed does not even require cross-examination of adverse witnesses who actually testify at the hearing. Yet, as The Chief Justice recently observed, '(c)ross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested,' Davis v. Alaska, supra, 415 U.S., at 316, 94 S.Ct., at 1110, and "(t)he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination." Id., at 315—316, 94 S.Ct., at 1110. I see little basis for the Court's refusal to recognize the accused inmate's rights in these circumstances. The Court apparently accepts petitioners' arguments that there is a danger that such cross-examination will produce hostility between inmate and guard, or inmate and inmate, which will eventually lead to prison disruption; or that cross-examination of a guard by an inmate would threaten the guard's traditional role of absolute authority; or that cross-examination would somehow weaken the disciplinary process as a vehicle for rehabilitation.
81
I do not believe that these generalized, speculative, and unsupported theories provide anything close to an adequate basis for denying the accused inmate the right to cross-examine his accusers. The State's arguments immediately lose most of their potential force when it is observed that Nebraska already permits inmates to question the correctional officer who is the charging party with respect to the charges. See ante, at 567, n. 17. Moreover, by far the greater weight of correctional authority is that greater procedural fairness in disciplinary proceedings, including permitting confrontation and cross-examination, would enhance rather than impair the disciplinary process as a rehabilitative tool. President's Commission on Law Enforcement and the Administration of Justice Task Force Report: Corrections 13, 82—83 (1967); ABA Survey, 20—22; see Landman v. Royster, 333 F.Supp., at 653.
82
'Time has proved . . . that blind deference to correctional officials does no real service to them. Judicial concern with procedural regularity has a direct bearing upon the maintenance of institutional order; the orderly care with which decisions are made by the prison authority is intimately related to the level of respect with which prisoners regard that authority. There is nothing more corrosive to the fabric of a public institution such as a prison than a feeling among those whom it contains that they are being treated unfairly.'
83
Palmigiano v. Baxter, 487 F.2d 1280, 1283 (CA1 1973).
84
As The Chief Justice noted in Morrissey v. Brewer, 408 U.S., at 484, 92 S.Ct., at 2602, 'fair treatment . . . will enhance the chance of rehabilitation by avoiding reactions to arbitrariness.'
85
Significantly, a substantial majority of the States do permit confrontation and cross-exmination in prison disciplinary proceedings, and their experience simply does not bear out the speculative fears of Nebraska authorities. See ABA Survey 21—22. The vast majority of these States have observed 'no noticeable effect on prison security or safety. Furthermore, there was general agreement that the quality of the hearings had been 'upgraded' and that some of the inmate feelings of powerlessness and frustration had been relieved.' Id., at 21. The only reported complaints have been, not the theoretical problems suggested by petitioners, but that these procedures are time consuming and have slowed down the disciplinary process to some extent. these are small costs to bear to achieve significant gains in procedural fairness.
86
Thus, in my view, we should recognize that the accused prisoner has a constitutional right to confront and cross-examine adverse witnesses, subject to a limited exception when necessary to protect the identity of a confidential inmate informant. This does not mean that I would not permit the disciplinary board to rely on written reports concerning the charges against a prisoner. Rather, I would think this constitutional right sufficiently protected if the accused had the power to compel the attendance of an adverse witness so that his story can be tested by cross-examination. See Clutchette v. procunier, supra, 497 F.2d, at 819; Palmigiano v. Baxter, supra, 487 F.2d, at 1290. Again, whenever the right to confront an adverse witness is denied an accused, I would require that this denial and the reasons for it be noted in writing in the record of the proceeding. I would also hold that where it is found necessary to restrict the inmate's right of confrontation, the disciplinary board has the constitutional obligation to call the witness before it in camera and itself probe his credibility, rather than accepting the unchallenged and otherwise unchallengeable word of the informer. See ibid.; cf. Birzon v. King, 469 F.2d 1241 (CA2 1972). And, again, I would make it clear that the unwarranted denial of the right to confront adverse witnesses, after giving due deference to the judgment of prison officials and their reasonable concerns with inmate safety and institutional order, would be cause for judicial intervention.
87
The Court next turns to the question of an accused inmate's right to counsel, and quotes a long passage from our decision last Term in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), in support of its conclusion that appointed counsel need not be provided and retained counsel need not be permitted in prison disciplinary proceedings at this time. The Court seemingly forgets that the holding of Scarpelli was that fundamental fairness requires the appointment of counsel in some probation revocation or parole revocation proceedings and overlooks its conclusion that
88
'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.' Id., at 786—787, 93 S.Ct., at 1762.
89
Plainly, these observations are at least as appropriate in the context of prison disciplinary proceedings. We noted in Johnson v. Avery, 393 U.S. 483, 487, 89 S.Ct. 747, 750, 21 L.Ed.2d 718 (1969), that 'penitentiaries include among their inmates a high percentage of persons who are totally or functionally illiterate, whose educational attainments are slight, and whose intelligence is limited'; the same considerations provide the motivating force for the holding today in Part VIII of the Court's opinion.
90
In view of these considerations, I think it is clear that, at least in those serious disciplinary cases meeting the Scarpelli requirements, see 411 U.S., at 790, 93 S.Ct., at 1763, any inmate who seeks assistance in the preparation of his defense must be constitutionally entitled to have it. But, although for me the question is fraught with great difficulty, I agree with the Court that it would be inappropriate at this time to hold that this assistance must be provided by an appointed member of the bar.2 There is considerable force to the argument that counsel on either side would be out of place in these disciplinary proceedings, and the practical problems of providing appointed counsel in these proceedings may well be insurmountable. But the controlling consideration for me is my belief that, in light of the types of questions likely to arise in prison discipline cases, counsel substitutes should be able to provide sufficiently effective assistance to satisfy due process. At least 41 States already provide such counsel substitutes, ABA Survey 22, reflecting the nearly universal recognition that for most inmates, this assistance with the preparation of a defense, particularly as disciplinary hearings become more complex, is absolutely essential. Thus, I would hold that any prisoner is constitutionally entitled to the assistance of a competent fellow inmate or correctional staff member—or, if the institution chooses, such other alternatives as the assistance of law students to aid in the preparation of his defense.
91
Finally, the Court addresses the question of the need for an impartial tribunal to hear these prison disciplinary cases. We have recognized that an impartial decisionmaker is a fundamental requirement of due process in a variety of relevant situations, see, e.g., Morrissey v. Brewer, 408 U.S., at 485—486, 92 S.Ct., at 2602—2603; Goldberg v. Kelly, 397 U.S., at 271, 90 S.Ct., at 1022, and I would hold this requirement fully applicable here. But in my view there is no constitutional impediment to a disciplinary board composed of responsible prison officials like those on the Adjustment Committee here. While it might well be desirable to have persons from outside the prison system sitting any possibility that subtle institutional pressures may affect the outcome of disciplinary pressures may effect the outcome of disciplinary may affect the outcome of disciplinary cases and to avoid any appearance of unfairness, in my view due process is satisfied as long as no member of the disciplinary board has been involved in the investigation or prosecution of the particular case, or has had any other form of personal involvement in the case. See Clutchette v. Procunier, 497 F.2d, at 820; United States ex rel. Miller v. Twomey, 479 F.2d 701, 716, 718 (CA7 1973); Landman v. Royster, 333 F.Supp., at 653. I find it impossible to determine on the present record whether this standard of impartiality has been met, and I would leave this question open for the District Court's consideration on remand.
92
Thus, it is my conclusion that the Court of Appeals was substantially correct in its holding that the minimum due process procedural requirements of Morrissey v. Brewer are applicable in the context of prison disciplinary proceedings. To the extent that the Court is willing to tolerate reduced procedural safeguards for accused inmates facing serious punishment which do not meet the standards set out in this opinion, I respectfully dissent.
93
Mr. Justice DOUGLAS, dissenting in part, concurring in the result in part.
94
The majority concedes that prisoners are persons within the meaning of the Fourteenth Amendment, requiring the application of certain due process safeguards to prison disciplinary proceedings, if those proceedings have the potential of resulting in the prisoner's loss of good time or placement in solitary confinement, ante, at p. 571—572 n. 19. But the majority finds that prisoners can be denied the right to cross-examine adverse witnesses against them, and sustains the disciplinary board's right to rely on secret evidence provided by secret accusers in reaching its decision, on the ground that only the prison administration can decide whether in a particular case the danger of retribution requires shielding a particular witness' identity. And in further deference to prison officials, the majority, while holding that the prisoner must usually be accorded the right to present witnesses on his own behalf, appears to leave the prisoner no remedy against a prison board which unduly restricts that right in the name of 'institutional safety.' Respondent thus receives the benefit of some of the constitutional rights of due process that the Fourteenth Amendment extends to all 'persons.' In my view, however, the threat of any substantial deprivation of liberty within the prison confines, such as solitary confinement, is a loss which can be imposed upon respondent prisoner and his class only after a full hearing with all due process safeguards.
95
* I agree that solitary confinement is a deprivation requiring a due process hearing for its imposition. Due process rights are required whenever an individual risks condemnation to a "grievous loss," Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484; Goldberg v. Kelly, 397 U.S. 254, 263, 90 S.Ct. 1011, 1018, 25 L.Ed.2d 287; Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 646, 95 L.Ed. 817 (Frankfurter, J., concurring). Thus due process is required before the termination of welfare benefits, Goldberg, supra; revocation of parole or probation, Morrissey, supra, and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656; revocation of a driver's license, Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90; and attachment of wages, Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349. Every prisoner's liberty is, of course, circumscribed by the very fact of his confinement, but his interest in the limited liberty left to him is then only the more substantial. Conviction of a crime does not render one a nonperson whose rights are subject to the whim of the prison administration, and therefore the imposition of any serious punishment within the prison system requires procedural safeguards. Of course, a hearing need not be held before a prisoner is subjected to some minor deprivation, such as an evening's loss of television privileges. Placement in solitary confinement, however, is not in that category. Prisoners are sometimes placed in solitary or punitive segregation for months or even years. Bryant v. Harris, 465 F.2d 365; Sostre v. McGinnis, 442 F.2d 178; Adams v. Carlson, 368 F.Supp. 1050; Landman v. Royster, 333 F.Supp. 621, and such confinement inevitably results in depriving the prisoner of other privileges as well as those which are ordinarily available to the general prison population, La-Reau v. MacDougall, 473 F.2d 974; Wright v. McMann, 387 F.2d 519. Moreover, the notation in a prisoner's file that he has been placed in such punitive confinement may have a seriously adverse effect on his eligibility for parole, a risk which emphasizes the need for prior due process safeguards, Clutchette v. Procunier, 497 F.2d 809.
II
96
I would start with the presumption that cross-examination of adverse witnesses and confrontation of one's accusers are essential rights which ought always to be available absent any special overriding considerations. In Morrissey v. Brewer, supra, we held that the right to confront and cross-examine adverse witnesses is a minimum requirement of due process which must be accorded parolees facing revocation of their parole 'unless the hearing officer specifically finds good cause for not allowing confrontation.' 408 U.S., at 489, 92 S.Ct., at 2604. 'Because most disciplinary cases will turn on issues of fact . . . the right to confront and cross-examine witnesses is essential.' Landman v. Royster, supra, 333 F.Supp., at 653.
97
'Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. . . . This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases . . . but also in all types of cases where administrative and regulatory actions were under scrutiny.' Greene v. McElroy, 360 U.S. 474, 496—497, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377.
98
The decision as to whether an inmate should be allowed to confront his accusers should not be left to the unchecked and unreviewable discretion of the prison disciplinary board. The argument offered for that result is that the danger of violent response by the inmate against his accusers is great, and that only the prison administrators are in a position to weigh the necessity of secrecy in each case. But it is precisely this unchecked power of prison administrators which is the problem that due process safeguards are required to cure. 'Not only the principle of judicial review, but the whole scheme of American government, reflects an institutionalized mistrust of any such unchecked and unbalanced power over essential liberties. That mistrust does not depend on an assumption of inveterate venality or incompetence on the part of men in power . . ..' Covington v. Harris, 136 U.S.App.D.C. 35, 39, 419 F.2d 617, 621. Likewise the prisoner should have the right to cross-examine adverse witnesses who testify at the hearing. Opposed is the view that the right may somehow undermine the proper administration of the prison, especially if accused inmates are allowed to put questions to their guards. That, however, is a view of prison administration which is outmoded and indeed anti-rehabilitative, for it supports the prevailing pattern of hostility between inmate and personnel which generates an 'inmates' code' of noncooperation, thereby preventing the rapport necessary for a successful rehabilitative program. The goal is to reintegrate inmates into a society where men are supposed to be treated fairly by the government, not arbitrarily. The opposed procedure will be counterproductive. A report prepared for the Joint Commission on Correctional Manpower and Training has pointed out that the 'basic hurdle (to reintegration) is the concept of a prisoner as a nonperson and the jailer as an absolute monarch. The legal strategy to surmount this hurdle is to adopt rules . . . maximizing the prisoner's freedom, dignity, and responsibility. More particularly, the law must respond to the substantive and procedural claims that prisoners may have . . ..' F. Cohen, The Legal Challenge to Corrections 65 (1969). We recognized this truth in Morrissey, where we noted that society has an interest in treating the parolee fairly in part because 'fair treatment in parole revocations will enhance the chance of rehabilitation by avoiding reactions to arbitrariness.' 408 U.S., at 484, 92 S.Ct., at 2602. The same principle applies to inmates as well.
99
The majority also holds that 'the inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.' Ante, at 566. Yet, while conceding that 'the right to present evidence is basic to a fair hearing.' ibid., the Court again chooses to leave the matter to the discretion of prison officials, who are not even required to state their reasons for refusing a prisoner his right to call a witness, although the Court finds that such a statement of reasons would be 'useful.' Ibid. Thus, although the Court acknowledges the prisoner's right, it appears to leave him with no means of enforcing it.
100
As the Court itself agrees in holding that the disciplinary board must provide a statement of reasons for its ultimate determination on the merits, ante, at 564—565, such a written statement is crucial not only to provide a basis for review, but to ensure that the board 'will act fairly.' Ibid. Of course even in a criminal trial the right to present one's own witnesses may be limited by the trial judge's finding that the evidence offered is irrelevant, incompetent, or needlessly repetitious, and certainly the same restrictions may apply in the prison setting. But when the judge makes such a ruling it is a matter in the record which may be challenged on appeal. Nebraska may not provide any channel for administrative appeal of the Board's ruling, but because "(t)he fundamental requisite of due process of law is the opportunity to be heard," Goldberg v. Kelly, 397 U.S. 254, 267, 90 S.Ct. 1011, 1020, 25 L.Ed.2d 287, some possibility must remain open for judicial oversight. Here as with the rights of confrontation and cross-examination, I must dissent from the Court's holding that the prisoner's exercise of a fundamental constitutional right should be left within the unreviewable discretion of prison authorities.
101
Our prisons are just now beginning to work their way out of their punitive heritage. The first American penitentiary was established in Philadelphia in 1790; it contained 24 individual cells for the solitary confinement of hardened offenders. P. Tappan, Crime, Justice and Correction 605—606 (1960). Under this 'Pennsylvania System' the prisoner was continuously confined to solitary and all communication was forbidden, with the exception of religious advisors and official visitors. M. Wilson, The Crime of Punishment, 219—220 (1931). New York experimented with this approach but found it too severe, and adopted instead a compromise solution known as the 'auburn' or 'silent' system, in which inmates were allowed to work in shops with others during the day, although under a strict rule of silence, and then returned to solitary confinement at night. Prisoners were marched around in military lock-step with their eyes cast on the ground, and the violations of any rules resulted in the immediate infliction of corporal punishment by the guards. Tappan, supra, at 609—610. Although the harsh treatment produced an orderly prison, it came under criticism because of its inhumanity, with particular emphasis on the unfettered discretion of the guards to impose punishment on the basis of vague charges that were never subjected to detached or impartial evaluation. Introductory Report to the Code of Reform and Prison Discipline 8, printed in E. Livingston, A System of Penal Law for the United States (1828).
102
We have made progress since then but the old tradition still lingers. Just recently an entire prison system of one State was held so inhumane as to be a violation of the Eighth Amendment bar on cruel and unusual punishment. Holt v. Sarver, 309 F.Supp. 362, aff'd, 442 F.2d 304. The lesson to be learned is that courts cannot blithely defer to the supposed expertise of prison officials when it comes to the constitutional rights of inmates.
103
'Prisoners often have their privileges revoked, are denied the right of access to counsel, sit in solitary or maximum security or lose accrued 'good time' on the basis of a single, unreviewed report of a guard. When the courts defer to administrative discretion, it is this guard to whom they delegate the final word on reasonable prison practices. This is the central evil in prison . . . the unreviewed administrative discretion granted to the poorly trained personnel who deal directly with prisoners.' Hirschkop & Millemann, The Unconstitutionlity of Prison Life, 55 Va.L.Rev. 795, 811—812 (1969).
104
The prisoner's constitutional right of confrontation should not yield to the so-called expertise of prison officials more than is necessary. The concerns of prison officials in maintaining the security of the prison and of protecting the safety of those offering evidence in prison proceedings are real and important. But the solution cannot be a wholesale abrogation of the fundamental constitutional right to confront one's accusers. The danger of retribution against the informer is not peculiar to the prison system; it exists in every adversary proceeding, and the criminal defendant out on bail during his trial might present a greater threat to the witness hostile to his interests than the prison inmate who is subject to constant surveillance. See Preiser v. Rodriguez, 411 U.S. 475, 492, 93 S.Ct. 1827, 1837, 36 L.Ed.2d 439. If there is an 'inmates' code' of the prison, resulting from hostility to the authorities, which proscribes inmate cooperation with prison officials in disciplinary proceedings, it is probably based upon the perceived arbitrariness of those proceedings. That ethic, which is clearly anti rehabilitative, must be ferreted out, but I do not see how the petitioners can rely on their current failure to correct this evil for the perpetration of an additional one—the denial of the right of confrontation. In some circumstances it may be that an informer's identity should be shielded. Yet in criminal trials the rule has been that if the informer's information is crucial to the defense, then the government must choose between revealing his identity and allowing confrontation, or dismissing the charges. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639. And it is the court, not the prosecutor, who determines the defendant's need for the information. We should no more place the inmate's constitutional rights in the hands of the prison administration's discretion than we should place the defendant's right in the hands of the prosecutor.
105
Insofar as the Court affirms the judgment of the Court of Appeals I concur in the result. But the command of the Due Process Clause of the Fourteenth Amendment compels me to dissent from that part of the judgment allowing prisoners to continue to be deprived of the right to confront and cross-examine their accusers, and leaving the right to present witnesses in their own behalf in the unreviewable discretion of prison officials.
III
106
Finally, the Court again, as earlier this term in Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224, sidesteps the issue of the First Amendment rights of prisoners to send and receive mail. I adhere to the views expressed by my Brother Marshall and myself earlier this Term in our separate opinions in Procunier. I agree, however, with the Court that the prisoners' First Amendment rights are not violated by inspection of their mail for contraband, so long as the mail is not read and the inspection is done in the prisoner's presence so that he can be assured that the privacy of his communications is not breached. Such a procedure should adequately serve the prison administration's interest in ensuring that weapons, drugs, and other prohibited materials are not unlawfully introduced into the prison, while preserving the prisoner's First Amendment right to communicate with others through the mail.
1
The practices, rules, and regulations of the Complex under challenge in this litigation are only in force at that institution, and are drafted by the Warden, and not by the Director of Correctional Services. Since no statewide regulation was involved there was no need to convene a three-judge court. See Board of Regents v. New Left Education Project, 404 U.S. 541, 92 S.Ct. 652, 30 L.Ed.2d 697 (1972).
2
The District Court also determined that contrary to state statutory provisions certain good time had been taken away for violations which were not 'flagrant or serious' within the meaning of the controlling state statute, see n. 5, infra, and ordered that good time be restored for all such offenses. The Court of Appeals affirmed the holding (though not the remedy, see infra at 544). Petitioners do not challenge that holding in this Court.
Certain issues originally in contest in this litigation were settled by stipulation and order in the District Court. These concerned such matters as processing inmate letters to sentencing judges, the provision for postage to mail such letters, the adequacy of and access to the prison library, and the availability of a notary service. Others were decided by the District Court, after trial, and were not taken up on appeal to the Court of Appeals. These issues included the denial of use of typewriters to inmates, reprisals against inmates who petition the courts, the number of inmates who could use the prison library at one time, the length of time which could be spent in the library, delay in receiving mail, censorship of letters to the news media and public officials, and limitations on numbers of letters which can be written. None of these issues is raised here.
3
No issues are raised here, nor were they in the Court of Appeals, as to the ruling in the District Court on restrictions on outgoing mail.
4
The Court of Appeals found that the only person allowed to render legal assistance was the 'Legal Advisor,' and that the Warden did not allow prisoners to consult with other inmates. That finding, which disagreed to some extent with the District Court's, is not challenged by petitioners.
5
That statutory provision provides, in full:
'(1) The chief executive officer of each facility shall be responsible for the discipline of those persons committed to the Division of Corrections who reside therein. No person shall be punished except upon the order of the chief executive officer of the facility; nor shall any punishment be imposed otherwise than in accordance with this section.
'(2) Except in flagrant or serious cases, punishment for misconduct shall consist of deprivation of privileges. In cases of flagrant or serious misconduct, the chief executive officer may order that a person's reduction of term as provided in section 83 1,107 be forfeited or withheld and also that the person be confined in a disciplinary cell. The chief executive officer may order that such person, during all or part of the period in a disciplinary cell, be put on an adequate and healthful diet. A person in a disciplinary cell shall be visited at least once every eight hours. No cruel, inhuman or corporal punishment shall be used on any person.
'(3) The chief executive officer shall maintain a record of breaches of discipline, of the disposition of each case, and of the punishment, if any, for each such breach. Each breach of discipline shall be entered in the person's file, together with the disposition or punishment therefor.
'(4) The chief executive officer may recommend to the Director of Corrections that a person who is considered to be incorrigible by reason of frequent intentional breaches of discipline, or who is detrimental to the discipline or the morale of the facility be transferred to another facility for stricter safekeeping and closer confinement, subject to the provisions of section 83—176.'
At the time this litigation was commenced, the statute gave examples of 'flagrant or serious misconduct'—'assault, escape, attempt to escape.' Neb.Rev.Stat. § 83—185 (1971). This was the definition employed by the District Court in deciding that certain offenses were not serious within the meaning of the Act. See n. 2, supra. The statutory change does not affect the issues in this litigation.
6
Section 83—1,107, Neb.Rev.Stat. (Cum.Supp.1972), which provides for the allowance and
'(1) The chief executive officer of a facility
'(1) The chief executive officers of a facility shall reduce, for parole purposes, for good behavior and faithful performance of duties while confined in a facility the term of a committed offender as follows: Two months on the first year, two months on the second year, three months on the third year, four months for each succeeding year of his term and pro rata for any part thereof which is less than a year. In addition, for especially meritorious behavior or exceptional performance of his duties, an offender may receive a further reduction, for parole purposes, not to exceed five days, for any month of imprisonment. The total of all such reductions shall be deducted:
'(a) From his minimum term, to determine the date of his eligibility for release on parole; and
'(b) From his maximum term, to determine the date when his release on parole becomes mandatory under the provisions of section 83—1,111.
'(2) Reductions of such terms may be forfeited, withheld and restored by the chief executive officer of the facility after the offender has been consulted regarding the charges of misconduct. No reduction of an offender's term for especially meritorious behavior or exceptional performance of his duties shall be forfeited or withheld after an offender is released on parole.
'(3) Good time or other reductions of sentence granted under the provisions of any law prior to July 6, 1972 may be forfeited, withheld, or restored in accordance with the terms of this act.'
Special provisions are set up by statute dealing with the transfer of minors. See Nebraska Treatment and Corrections Act § 7, as amended by LB 57, Session Laws 1973, § 1, Neb.Rev.Stat. § 83 176 (Supp.1973).
Certain changes made in § 83—1,107, between time suit was brought and now, as related in the prior version of the provision, Neb.Rev.Stat. § 83—1,107 (1971), are not important to the issues in dispute here.
Determinations of loss of good time are directly relevant to receiving parole. Under Neb.Rev.Stat. § 83—1,109 (1971), all reductions are to be reported to and considered by parole authorities.
By prison regulation, prisoners may also earn 'blood time.' The pertinent regulation provides:
'Anyone who donates blood to the American Red Cross receives good time credits for their donations. Anyone under the age of 18 must have the Warden's approval. Those over 18 may voluntarily give blood on the following scheduled months: MAY, AUGUST and DECEMBER. The Red Cross Bloodmobile unit is generally scheduled for the first full week of the months mentioned above.
'You will reduce from your sentence, via the Board of Parole approval, five days for the first donation, ten days for the second donation, and fifteen days for every donation thereafter.
'Should you receive a disciplinary report or below average work report any time between donations, you will be credited only five days the next time you donate blood to the Red Cross as a result of the disciplinary action.'
Since 'blood time' operates like good time to reduce the term of sentence, and since it represents only an additional way to accumulate good time, it is considered to be included within the meaning of that term.
7
The record does not disclose what specific sanctions are employed at the Complex under the general heading of 'deprivation of privileges.'
8
The regulations, in full, are:
'Policy: In the interest of treatment-oriented discipline, it is necessary that inmates and staff members maintain high standards of behavior, courtesy and personal conduct. It is the policy of this institution, in administering discipline, to gain voluntary acceptance of certain limitations by the inmate body. Discipline must be realistically administered in order to maintain the general welfare of the institution community and conformance to specified standards and regulations, while at the same time implementing treatment of the offender.
'Purpose: To set forth the institutional policy and procedures for the administration of discipline to insure that disciplinary processes are carried out as an integral part of the total treatment program, and to establish professional standards for all employees in fulfilling this responsibility.
'Sandards of Conduct. The institution population will be kept informed through the orientation process and by written orders and memorandums as to the standards of conduct expected. When it becomes necessary to regulate and control a man's conformance to the prescribed standards, disciplinary measures consistent with treatment of the individual will be applied in appropriate degree and in an impersonal, impartial manner.
'Misconduct.
'a. Major Misconduct: Major misconduct if a serious violation and will be reported formally to the Adjustment Committee on the Misconduct Report Form and/or detailed narrative.
'b. Minor Misconduct: Minor misconduct is a less serious violation which may be resolved immediately and informally by the in-
mate's supervisor or formally reported on the Misconduct Report Form. Repeated minor misconduct should be formally reported.
'Misconduct Reports:
'a. Preparation: In reporting misconduct on the Misconduct Report Form, the report should be prepared carefully and accurately so as to describe events exactly as they happen. The accurate preparation of a Misconduct Report is a major contributing factor in accurate evaulation of the misconduct by the Adjustment Committee. The initial statement on the report should be a brief statement of the charge or charges, followed by a detailed report of the incident. Articles of evidence should always accompany the report.
'b. Processing of Misconduct Reports: Completed Misconduct Reports along with any articles of evidence, should be forwarded to the Chief Correction Supervisor's office for investigation. The Shift Lieutenant will conduct an investigation, note his findings, and submit to the Chief Corrections Supervisor. The Chief Corrections Supervisor will review the report, conduct additional investigation if necessary, interview the Shift Lieutenant and officer submitting report, and verify the accuracy, proper preparation of the report and assemble all information and articles regarding the misconduct report. Upon completion of this investigation, all information will be noted on the space provided on the Misconduct Report, then submitted to the Chairman of the Adjustment Committee so the case may be promptly scheduled for a committee hearing.
'Administration of Discipline: The administration of discipline is hereby delegated as follows:
'a. All employees will resolve immediately and informally minor violations by any inmate under their observation and/or supervision.
'b. The Chief Corrections Supervisor will initiate prompt investigation on all misconduct reports and will maintain control of any adverse situation and its inmate participants.
'c. Adjustment Committee will receive reports of misconduct, conduct hearings, and make findings and impose disciplinary actions.
'The Adjustment Committee:
'a. Organization: The Adjustment Committee is composed as fol-
lows: Associate Warden Custody, Chairman; Correctional Industries Superintendent, Member; Reception Center Director, Member.
'Note: The Adjustment Committee is responsible for the preparation of meeting agenda, recording, distribution, and filing of all reports as necessary for institution requirements. Further, the committee will answer directly to the Administrative Assistant on matters of discipline, adjustment, and investigations conducted relative to the daily processing of Misconduct Reports.
'b. Committee Functions:
'(1) The Adjustment Committee will meet daily at 8:00 a.m. in the office of the Associate Warden Custody and/or the Adjustment Center, as required.
'(2) The Committee will review and evaluate all misconduct reports as to the underlying causes for the adverse behavior and will carefully consider all possible courses of action before reaching a decision. Disciplinary action in all cases will be treatment oriented.
'(3) The Committee is authorized to conduct investigations, make findings, impose disciplinary actions, refer cases for further diagnosis, recommend program changes and take any other actions deemed necessary to insure decision effectiveness.
'(4) The Committee will concern itself with institution policies and procedures which effect discipline, strive to maintain consistence in its actions, and continually evaluate the effectiveness of its decisions by appropriate follow-up.
'(5) The Committee will maintain accurate records and assure the prompt and proper completion of all required reports and forms.
'(6) The Committee will review each week or more often, the progress of all inmates housed in the Adjustment Center and initiate or recommend program changes when indicated. The Committee will document all actions, reviews, and program changes so as to provide the Classification Committee with a clear, concise picture of individual inmate adjustment.
'Adjustment Committee Actions:
'a. General Principles:
'(1) The decisions and recommendations of the Committee will be the result of group consensus and judgment.
'(2) Full consideration must be given to the causes for the ad-
verse behavior, the setting and circumstances in which it occurred, the man's accountability, and the correctional treatment goals.
'(3) Disciplinary meansures will be taken only at such times and to such degrees as are necessary to regulate and control a man's behavior with acceptable limits and will never be rendered capriciously or in the nature of retaliation or revenge.
'(4) Action will be taken as soon after the occurrence as circumstances permit.
'(5) Work assignments and program changes will not be used as disciplinary measures.
'(6) The use of corporal punishment is strictly prohibited.
'(7) Disciplinary action taken and recommended may include but not necessarily be limited to the following: reprimand, restrictions of various kinds, extra duty, confinement in the Adjustment Center, withholding of statutory good time and/or extra earned good time, or a combination of the elements listed herein.
'Use of Segregation: Inmates may be placed in segregation for any one of the following reasons, and documentation on either the Misconduct Report Form or in narrative must be sent to the Associate Warden Custody in each case.
'a. To insure immediate control and supervision.
'b. To protect potential victims.
'c. To insure witnesses against intimidation.
'd. As a punishment for some major institutional infraction.
'e. To control those whose violent emotions are out of control.
'f. To insure their safety or the safety of others.
'g. To insure the safety and security of the institution.
'h. Demonstrated defiance of personnel acting in the line of duty.
'i. Willful refusal to obey orders.
'Note: Inmates awaiting action of the Adjustment Committee will not routinely be placed in the Adjustment Center unless one or more of the above reasons are evident.
'No man should remain in the Adjustment Center longer than necessary, and special care must be taken to insure that this unit does not become a haven for those who persistently fail to solve their problems.
'The Adjustment Committee will conduct a review each week or
more often, of all cases in the Adjustment Center in discipline, to consider possible treatment alternatives.
'In addition to this, the institution counselor will maintain a progress file on long-term confinement cases. The Counselor has the responsibility to maintain contact with those inmates who are housed in segregation and report their progress or lack of progress to the Adjustment Committee. These progress reports are prepared at the end of each month and are used as a tool in determining further action by the Adjustment Committee.'
9
When a prisoner is isolated in solitary confinement, there appear to be two different types of conditions to which he may be exposed. He may be incarcerated alone in the usual 'disciplinary cell,' with privileges severely limited, for as long as necessary, or he may be put in a 'dry cell,' which unlike regular cells, contains no sink or toilet.
10
The Warden testified that a great number of cases are resolved without contest, and that in many instances the inmates admits his guilt to the investigating officer.
11
The prayer of the amended complaint asked the court to '(a)djudicate that under the rules, practices and procedures at the Complex the taking of statutory prisoner good time from the inmates constitutes an increase in the inmates' sentence without due process of law in violation of Amendment XIV . . ..' It asked the court to 'order the defendants to restore to the plaintiff Robert O. McDonnell that amount of good time taken' from him, and to '(o)rder defendants to submit a plan' which provided '(f)or a hearing procedure in connection with withholding and forfeiture of good time which complies with the requirements of due process . . ..' It further sought damages in the sum of $75,000 for the deprivation of the various constitutional rights involved in litigation, necessarily including the right to due process.
12
One would anticipate that normal principles of res judicata would apply in such circumstances.
13
It is suggested that the Court of Appeals wholly excluded the matter of good time from the proceedings on remand. It is true that the court's opinion is arguably ambiguous; but as we understand it, the District Court on remand was to determine the validity of the procedures for disciplinary hearings that may result in serious penalties, including good time, and that appropriate remedies were to be fashioned short of actual restoration of good time.
14
See generally A. Bandura, Principles of Behavior Modification (1969); L. Krasner & L. Ullmann, Research in Behavior Modification (1965); B. Skinner, Science and Human Behavior (1953).
15
See n. 8, supra.
16
A Survey of Prison Disciplinary Practices and Procedures of the American Bar Association's Commission on Correctional Facilities and Services (1974), reveals that 98% of the 49 prison systems of the States and the United States answering the questionnaire provided written notice of the charges to an inmate. The Survey shows that 91% of the systems, out of 34 responses, make a record of the hearings.
17
We note that though Nebraska does not as a general matter allow cross-examination of adverse witnesses at the hearing before the Adjustment Committee, the inmate is allowed to ask the charging party questions about the nature of the charges. He is also allowed to speak freely in his own defense.
18
The Survey, see n. 16, supra, discloses that cross-examination of witnesses is 'allowed' in 28 States, 57% of the 49 systems responding, but the Survey also discloses, that even in these 28 States—the federal system does not allow cross-examination—certain limitations are placed on the use of the procedure. Id., at 19—20.
19
Although the complaint put at issue the procedures employed with respect to the deprivation of good time, under the Nebraska system, the same procedures are employed where disciplinary confinement is imposed. The deprivation of good time and imposition of 'solitary' confinement are reserved for instances where serious misbehavior has occurred. This appears a realistic approach, for it would be difficult for the purposes of procedural due process to distinguish between the procedures that are required where good time is forfeited and those that must be extended when solitary confinement is at issue. The latter represents a major change in the conditions of confinement and is normally imposed only when it is claimed and proved that there has been a major act of misconduct. Here, as in the case of good time, there should be minimum procedural safeguards as a hedge against arbitrary determination of the factual predicate for imposition of the sanction. We do not suggest, however, that the procedures required by today's decision for the deprivation of good time would also be required for the imposition of lesser penalties such as the loss of privileges.
20
The Court of Appeals, which have ruled on procedures required in prison disciplinary proceedings, have been split. Two Circuits have required written notice in advance, Clutchette v. Procunier, 497 F.2d 809 (CA9 1974); United States ex rel. Miller v. Twomey, 479 F.2d 701 (CA7 1973), while two have held that oral notice is sufficient, Meyers v. Alldredge, 492 F.2d 296 (CA3 1974); Braxton v. Carlson, 483 F.2d 933 (CA3 1973); Sostre v. McGinnis, 442 F.2d 178 (CA2 1971) (en banc), cert. denied sub nom. Oswald v. Sostre, 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1972). The Ninth Circuit, Clutchette v. Procunier, supra, has held that a written statement of reasons and a written record of the proceedings must be provided, while the Second and Third Circuits have held to the contrary, Braxton v. Carlson, supra; Sostre v. McGinnis, supra. Two Circuits have held that there is no right to present witnesses at a hearing, Braxton v. Carlson, supra; Sostre v. McGinnis, Ginnis, supra, while one has held that there must be an opportunity to request the calling of witnesses, United States ex rel. Miller v. Twomey, supra. Only the Ninth Circuit, Clutchette v. Procunier, supra, has held that there is the full power and right of an inmate to call witnesses. As to cross-examination, two Circuits have stated that due process does not require this procedure, Braxton v. Carlson, supra; Sostre v. McGinnis, supra. The First Circuit has held, that where prison authorities had already extended the right to confront and cross-examine witnesses, there is no reason to force the authorities to call adverse witnesses when the inmate could have, Palmigiano v. Baxter, 487 F.2d 1280 (1973). Only the Ninth Circuit, Clutchette v. Procunier, supra, has held that there is a general right of cross-examination, but even that case helds that the right may be limited where there is a legitimate fear that retribution will result. As to counsel, two Circuits have held that there is no right even to lay substitutes, Braxton v. Carlson, supra; Sostre v. McGinnis, supra, while the Third Circuit, Meyers v. Alldredge, supra, has held that there is no right to counsel where counsel substitute is provided. The First Circuit, Palmigiano v. Baxter, supra, holds there is a right to retained counsel, even where a staff assistant is available, while the Ninth Circuit, Clutchette v. Procunier, supra, envisions some sanctions at disciplinary proceedings calling for provision of counsel, and has determined that counsel must be provided where a prison rule violation may be punishable by state law. An impartial hearing board has been required, to the extent that a member of the board may not participate in a case as an investigating or reviewing officer, or be a witness, Clutchette v. Procunier, supra; Braxton v. Carlson, supra; United States ex rel. Miller v. Twomey, supra. The Third Circuit, Meyers v. Alldredge, supra, has also held, in the context of the federal system where a prisoner whose good time is taken away goes first to a disciplinary committee and then to the Good Time Forfeiture Board, that an associate warden could not sit on both committees.
1
The Court defines the liberty interest at stake here in terms of the forfeiture of good time as a disciplinary measure. Since it is only loss of good time that is at issue in this case, this definition is of course quite appropriate here. But lest anyone be deceived by the narrowness of this definition, I think it important to note that this is obviously not the only liberty interest involved in prison disciplinary proceedings which is protected by due process. Indeed, the Court later observes that due process requires the same procedural protection when solitary confinement is at issue. Ante, at 571—572, n. 19. The Court apparently holds that inmates' 'liberty' is protected by due process whenever 'a major change in the conditions of confinement' is imposed as punishment for misconduct. Ibid. I agree. See Palmigiano v. Baxter, 487 F.2d 1280, 1284 (CA1 1973).
2
On the record in this case, no question is presented with respect to the presence of retained counsel at prison disciplinary proceedings, and I think it inappropriate for the Court to reach out and decide this important issue without the benefit of a concrete factual situation in which theissue arises. I would reserve for another day the questions whether the Constitution requires that an inmate able to afford counsel be permitted to bring counsel into the disciplinary hearing, or whether the Constitution allows a State to permit the presence of retained counsel when counsel is not appointed for indigents. Cf. Gagnon v. Scarpelli, 411 U.S. 778, 783 n. 6, 93 S.Ct. 1756, 1760, 36 L.Ed.2d 656 (1973).
| 34
|
41 L.Ed.2d 978
94 S.Ct. 2856
418 U.S. 602
UNITED STATES, Appellant,v.MARINE BANCORPORATION, INC., et al.
No. 73—38.
Argued April 23, 1974.
Decided June 26, 1974.
Syllabus
The United States brought this civil antitrust action under § 7 of the Clayton Act to challenge a proposed merger between two commercial banks, which would substitute the acquiring bank for the acquired bank in Spokane, Wash., and would permit the former for the first time to participate directly in the Spokane market. The acquiring bank, appellee National Bank of Commerce (NBC), is a large, nationally chartered bank based in Seattle, Wash., and a wholly owned subsidiary of appellee Marine Bancorporation, Inc., and in terms of assets, deposits, and loans is the second largest banking organization with headquarters in Washington, operating 107 branches in the State, including 59 in the Seattle metropolitan area and 31 in lesser developed eastern sections of the State, but none of which is in the Spokane metropolitan area. The acquired or target bank, appellee Washington Trust Bank (WTB), is a medium-size, state-chartered bank located in Spokane, with seven branches, six in the city and one in a suburb, and is the eighth largest bank with headquarters in Washington and the ninth largest in the State, controlling 17.4% of the 46 commercial banking offices and holding 18.6% or the third largest percentage of the total deposits in the Spokane metropolitan area. (The two banks with the largest percentages in the area hold 42.1% and 31.6% respectively of total deposits.) The Government bases its case exclusively on the potential-competition doctrine, seeking to establish that the merger 'may . . . substantially . . . lessen competition' with the meaning of § 7: (i) by eliminating the prospect that NBC, absent acquisition of the market share represented by WTB, would enter Spokane de novo or through acquisition of a smaller bank and thus would assist in deconcentrating that market over the long run; (ii) by ending present procompetitive effects allegedly produced in Spokane by NBC's perceived presence on the fringe of the Spokane market; and (iii) by terminating the alleged probability that WTB as an independent entity would develop by internal expansion or mergers with other medium-size banks into a regional or ultimately statewide actual competitor of NBC and other large banks. The District Court held against the Government on all aspects and dismissed the complaint. Held:
1. As 'a necessary predicate' to deciding whether the proposed merger contravenes the Clayton Act, the District Court properly found that the relevant product market was the 'business of commercial banking' and that the relevant geographic market was the Spokane metropolitan area. The entire State is not, despite the Government's contrary contention, an appropriate 'section of the country' within the meaning of § 7, since for the purpose of this case the appropriate 'section of the country' and the 'relevant geographic market' are the same, being the area in which the acquired firm is an actual, direct competitor, and since moreover the Government has not shown that the effect of the merger on a statewide basis 'may be substantially to lessen competition' within the meaning of § 7. Pp. 618—623.
2. While geographic market extension mergers by commercial banks must pass muster under the potential-competition doctrine, the application of the doctrine to commercial banking must take into account the extensive and unique federal and state regulatory restraints on entry into that line of commerce, including controls over the number of bank charters to be granted, prior bank regulatory agency approval of the opening of branches, and state-law restrictions, such as those in Washington, on de novo geographic expansion through branching and multibank holding companies. Pp. 626—630.
3. The Government's evidence of concentration ratios in the Spokane commercial banking market established a prima facie case that that market was sufficiently concentrated to invoke the potential-competition doctrine, and appellees did not demonstrate that such ratios inaccurately depicted the economic characteristics of the Spokane market. Pp. 630—632.
4. In view of the legal barriers to entry, notably state-law prohibitions against de novo branching, branching from a branch office, and multibank holding companies, the Government failed to sustain its burden of proof that the challenged merger violates § 7 by eliminating the likelihood that, but for the merger, NBC would enter Spokane de novo by means of sponsorship-acquisition or through a foothold acquisition of a small state bank in the Spokane area, since it was not shown that either of the proposed alternative methods of entry was feasible or offered a substantial likelihood of ultimately producing deconcentration of the Spokane market or other significant procompetitive effects. Pp. 632—639.
5. The Government's failure to establish that NBC has alternative methods of entry offering a reasonable likelihood of producing significant procompetitive effects is determinative of its contention that without regard to the possibility of future deconcentration of the Spokane market, the challenged merger is illegal because it eliminates NBC as a perceived potential entrant. Assuming that commercial bankers in Spokane are aware of the regulatory barriers that render NBC an unlikely or insignificant potential entrant except by merger with WTB, it is improbable, in light of such barriers, that NBC exerts any meaningful procompetitive influence over Spokane banks by 'standing in the wings.' Pp. 639—640.
6. The record amply supports the District Court's finding that the Government 'failed to establish . . . that there is any reasonable probability that WTB will expand into other banking markets,' since at no time in its 70-year history has WTB established branches outside the Spokane area, acquired another bank, or received a merger offer other than the one at issue here. Pp. 640—641.
Affirmed.
Daniel M. Friedman, Washington, D.C., for appellant.
R. A. Moen, Seattle Wash., for appellees Marine Bancorporation and others.
Lee Loevinger, Washington, D.C., for appellee Comptroller of the Currency.
Mr. Justice POWELL delivered the opinion of the Court.
1
The United States brought this civil antitrust action under § 7 of the Clayton Act, 38 Stat. 731, as amended, 15 U.S.C. § 18, to challenge a proposed merger between two commercial banks. The acquiring bank is a large, nationally chartered bank based in Seattle, Washington, and the acquired bank is a medium-size, state-chartered bank located at the opposite end of the State in Spokane. The banks are not direct competitors to any significant degree in Spokane or any other part of the State. They have no banking offices in each other's home cities. The merger agreement would substitute the acquiring bank for the acquired bank in Spokane and would permit the former for the first time to operate as a direct participant in the Spokane market.
2
The proposed merger would have no effect on the number of banks in Spokane. The United States bases its case exclusively on the potential-competition doctrine under § 7 of the Clayton Act. It contends that if the merger is prohibited, the acquiring bank would find an alternative and more competitive means for entering the Spokane area and that the acquired bank would ultimately develop by internal expansion or mergers with smaller banks into an actual competitor of the acquiring bank and other large banks in sections of the State outside Spokane. The Government further submits that the merger would terminate the alleged procompetitive influence that the acquiring bank presently exerts over Spokane banks due to the potential for its entry into that market.
3
After a full trial, the District Court held against the Government on all aspects of the case. We affirm that court's judgment. We hold that in applying the potential-competition doctrine to commercial banking, courts must take into account the extensive federal and state regulation of banks, particularly the legal restraints on entry unique to this line of commerce. The legal barriers to entry in the instant case, notably state-law prohibitions against de novo branching, against branching from a branch office, and against multibank holding companies, compel us to conclude that the challenged merger is not in violation of § 7.
4
* BACKGROUND
5
A. Facts.
6
The acquiring bank, National Bank of Commerce (NBC), is a national banking association with its principal office in Seattle, Washington. Located in the northwest corner of the State, Seattle is the largest city in Washington. NBC is a wholly owned subsidiary of a registered bank holding company, Marine Bancorporation, Inc. (Marine), and in terms of assets, deposits, and loans is the second largest banking organization with headquarters in the State of Washington. At the end of 1971, NBC had total assets of.$1.8 billion, total deposits of.$1.6 billion, and total loans of $881.3 million.1 It operates 107 branch banking offices within the State, 59 of which are located in the Seattle metropolitan area and 31 of which are in lesser developed sections of eastern Washington. In order of population, the four major metropolitan areas in Washington are Seattle, Tacoma, Spokane, and Everett. NBC has no branch offices in the latter three areas.
7
The target bank, Washington Trust Bank (WTB), founded in 1902, is a state bank with headquarters in Spokane. Spokane is located in the extreme eastern part of the State, approximately 280 road miles from Seattle. It is the largest city in eastern Washington, with a population of 170,000 within the corporate limits and of approximately 200,000 in the overall metopolitan area. The city has a substantial commercial and industrial base. The surrounding region is sparsely populated and is devoted largely to agriculture, mining, and timber. Spokane serves as a trade center for this region. NBC, the acquiring bank, has had a longstanding interest in securing entry into Spokane.
8
WTB has seven branch offices, six in the city of Spokane and one in Opportunity, a Spokane suburb. WTB is the eighth largest banking organization with headquarters in Washington and the ninth largest banking organization in the State. At the end of 1971, it had assets of $112 million, total deposits of $95.6 million, and loans of $57.6 million. It controls 17.4% of the 46 commercial banking offices in the Spokane metropolitan area. It is one of 12 middle-size banks in Washington (i.e., banks with assets in the $30 million to $250 million range).
9
WTB is well managed and profitable. From December 31, 1966, to June 30, 1972, it increased its percentage of total deposits held by banking organizations in the Spokane metropolitan area from 16.6% to 18.6%. The amount of its total deposits grew by approximately 50% during that period, a somewhat higher rate of increase than exhibited by all banking organizations operating in Spokane at the same time.2 Although WTB has exhibited a pattern of moderate growth, at no time during its 70-year history has it expanded outside the Spokane metropolitan area.
10
As of June 30, 1972, there were 91 national and state banking organizations in Washington. The five largest in the State held 74.3% of the State's total commercial bank deposits and operated 61.3% of its banking offices. At that time, the two largest in the State, Seattle-First National Bank and NBC, held 51.3% of total deposits and operated 36.5% of the banking offices in Washington.3 There are six banking organizations operating in the Spokane metropolitan area. One organization, Washington Bancshares, Inc., controls two separate banks and their respective branch offices. As of midyear 1972, this organization in the aggregate held 42.1% of total deposits in the area. Seattle-First National Bank, by comparison, held 31.6%. The target bank held 18.6% of total deposits at that time, placing it third in the Spokane area behind Washington Bancshares, Inc., and Seattle-First National Bank. Thus, taken together, Washington Bancshares, Seattle-First National Bank, and WTB hold approximately 92% of total deposits in the Spokane area. None of the remaining three commercial banks in Spokane holds a market share larger than 3.1%.4 One of these banks, Farmers & Merchants Bank, has offices only in a Spokane suburb.
11
The degree of concentration of the commercial banking business in Spokane may well reflect the severity of Washington's statutory restraints on de novo geographic expansion by banks. Although Washington permits branching, the restrictions placed on that method of internal growth are stringent. Subject to the approval of the state supervisor of banking, Washington banks with sufficient paid-in capital may open branches in the city or town in which their headquarters are located, the unincorporated areas of the county in which their headquarters are located, and incorporated communities which have no banking office. Wash.Rev.Code Ann. § 30.40.020 (Supp.1973). But under state law, no state-chartered bank 'shall establish or operate any branch . . . in any city or town outside the city or town in which its principal place of business is located in which any bank, trust company or national banking association regularly transacts a banking or trust business, except by taking over or acquiring an existing bank, trust company or national banking association . . ..' Ibid. Since federal law subjects nationally chartered banks to the branching limitations imposed on their state counterparts,5 national and state banks in Washington are restricted to mergers or acquisitions in order to expand into cities and towns with pre-existing banking organizations.
12
The ability to acquire existing banks is also limited by a provision of state law requiring that banks incorporating in Washington include in their articles of incorporation a clause forbidding a new bank from merging with or permitting its assets to be acquired by another bank for a period of at least 10 years, without the consent of the state supervisor of banking. Wash.Rev.Code Ann. § 30.08.020(7) (1961 and Supp.1973).6 In addition, once a bank acquires or takes over one of the banks operating in a city or town other than the acquiring bank's principal place of business, it cannot branch from the acquired bank. Wash.Rev.Code Ann. § 30.40.020 (Supp.1973). Thus, an acquiring bank that enters a new city or town containing banks other than the acquired bank is restricted to the number of bank offices obtained at the time of the acquisition. Moreover, multibank holding companies are prohibited in Washington. Wash.Rev.Code Ann. § 30.04.230 (Supp.1973).7 Under state law, no corporation in Washington may own, hold, or control more than 25% of the capital stock of more than one bank. Ibid. Violations of the one-bank holding company statute are gross misdemeanors carrying a possible penalty of forfeiture of a corporate charter. Ibid. Accordingly, it is not possible in Washington to achieve the rough equivalent of free branching by aggregating a number of unit banks under a bank holding company.8
13
In February 1971, Marine, NBC, and WTB agreed to merge the latter into NBC. NBC, as the surviving bank, would operate all eight banking offices of WTB as branches of NBC. In March 1971, NBC and WTB applied to the Comptroller of the Currency pursuant to the Bank Merger Act of 1966 for approval of the merger.9 As required by that Act, see 12 U.S.C. § 1828(c)(4), the Comptroller requested 'reports on the competitive factors involved' from the Attorney General, the Federal Deposit Insurance Corporation, and the Board of Governors of the Federal Reserve System. Each of these agencies submitted a negative report on the competitive effects of the merger. The Attorney General relied on the reasons advanced in the instant case. The latter two agencies based their conclusions primarily on the degree of concentration in commercial banking in Washington as a whole.
14
The Comptroller approved the merger in a report issued September 24, 1971. He concluded that state law precluded NBC from branching in Spokane and 'effectively prevented' NBC from causing a new Spokane bank to be formed which could later be treated as a merger partner. He noted that state law prevented the only independent small bank with offices located within the city boundaries of Spokane from merging with NBC, since that bank was state chartered, had been founded in 1965, and was subject to the minimum 10-year restriction against sale of a new bank set out in Wash.Rev.Code Ann. § 30.08.020(7) (1961 and Supp.1973). The Comptroller relied heavily on the view that the merger would contribute to the convenience and needs of bank customers in Spokane by bringing to them services not previously provided by WTB.
15
Acting within the 30-day limitation period set out in the Bank Merger Act of 1966, 12 U.S.C. § 1828(c)(7), the United States then commenced this action in the United States District Court for the Western District of Washington, challenging the legality of the merger under § 7 of the Clayton Act.10 As a result, the merger was automatically stayed. 12 U.S.C. § 1828(c)(7)(A). Pursuant to 12 U.S.C. § 1828(c)(7)(D), the Comptroller intervened in support of the merger as a party defendant.
16
Prior to trial the United States dropped all allegations concerning actual competition between the merger partners.11 The remainder of the complaint addressed the subject of potential competition. The United States sought to establish that the merger 'may . . . substantially . . . lessen competition' within the meaning of § 7 in three ways: by eliminating the prospect that NBC, absent acquisition of the market share represented by WTB, would enter Spokane de novo or through acquisition of a smaller bank and thus would assist in deconcentrating that market over the long run; by ending present procompetitive effects allegedly produced in Spokane by NBC's perceived presence on the fringe of the Spokane market; and by terminating the alleged probability that WTB as an independent entity would develop through internal growth or through mergers with other medium-size banks into a regional or ultimately statewide counterweight to the market power of the State's largest banks. The Government's first theory—alleged likelihood of de novo or foothold entry by NBC if the challenged merger were blocked—was the primary basis upon which this case was presented to the District Court.12
17
At the close of final oral argument following a week-long trial, the District Judge ruled for the defendants from the bench. Two weeks later he adopted without change the defendants' proposed findings of facts and conclusions of law, the latter consisting of seven sentences. 1973—1 Trade Cas. 74,496, p. 94,244 (1973).13 The court found that the merger would 'substantially' increase competition in commercial banking in the Spokane metropolitan area and would have 'no inherent anticompetitive effect . . ..' Ibid. In light of the legal and economic barriers to any other method of entry, the court further found 'no reasonable probability' that, absent the challenged merger, NBC would enter the Spokane market in the 'reasonably foreseeable future.' Id., at 94,245.
18
According to the District Court, Washington law forbade NBC from establishing de novo branches in Spokane, and the Government had failed to establish that there was any existing bank in Spokane other than WTB 'available for acquisition by NBC on any reasonably acceptable basis at any time in the foreseeable future, or at all.' Ibid. Moreover, any attempt by NBC to enter de novo by assisting in the formation of and then acquiring a newly chartered bank in Spokane 'even if it could be legally accomplished,'14 or to undertake a foothold acquisition, would not be economically feasible. Ibid. In addition to noting the past and projected slow growth of the Spokane area, the court found that the ability to branch in a metropolitan area was essential to effective competition in the banking business. Ibid. Under state law, NBC would be unable to open new branch offices in Spokane if it made a foothold acquisition or helped form and then acquired a new bank. These and other factors rendered 'negative' the prospects for growth of a foothold acquisition or of a sponsored bank started from scratch. Ibid. This was confirmed by the experience of another large banking organization not based in Spokane that had entered the city through a foothold acquisition in 1964 and subsequently had been unable to expand the market share of the acquired bank. Id., at 94,245—94,246.
19
The court found no perceptible procompetitive effect deriving from NBC's premerger presence on the fringe of the Spokane market. Id., at 94,246. It also held that the Government had failed to carry its burden of proving a reasonable probability that WTB, absent the merger, would expand beyond the Spokane market by de novo growth or through combination with another medium-size bank. Ibid. It found no probability that NBC would be 'entrenched as a dominant bank in the Spokane metropolitan area' as a result of the merger, and it could find no likelihood that the merger would trigger a series of defensive mergers by other banks in the State. Id., at 94,246 94,247.15
20
On the basis of its findings, the District Court dismissed the Government's complaint. The Government thereupon brought this direct appeal under the Expediting Act, 32 Stat. 823, as amended, 15 U.S.C. § 29. We noted probable jurisdiction. 414 U.S. 907, 94 S.Ct. 228, 38 L.Ed.2d 145 (1973).
II
THE RELEVANT MARKETS
21
Determination of the relevant product and geographic markets is 'a necessary predicate' to deciding whether a merger contravenes the Clayton Act. United States v. E. I. Du Pont De Nemours & Co., 353 U.S. 586, 593, 77 S.Ct. 872, 877, 1 L.Ed.2d 1057 (1957); Brown Shoe Co. v. United States, 370 U.S. 294, 324, 82 S.Ct. 1502, 1523, 8 L.Ed.2d 510 (1962). The District Court found that the relevant product market 'within which the competitive effect of the merger is to be judged' is the 'business of commercial banking (and the cluster of products and services denoted thereby) . . ..' 1973—1 Trade Cas. 74,496, p. 94,243. The parties do not dispute this finding, and in any event it is in full accord with our precedents.16
22
The District Court found that the relevant geographic market is the Spokane metropolitan area, 'consisting of the City of Spokane and the populated areas immediately adjacent thereto, including the area extending easterly through the suburb of Opportunity toward the Idaho border . . ..' Id., at 94,244. This area extends approximately five miles to the west and south and 10 miles to the north and east of the center of the city. It is wholly within and considerably smaller than Spokane County and is surrounded by a sparsely populated region, with no nearby major metropolitan centers. It contains all eight of the target bank's offices. On the basis of the record, we have no reason to doubt that it constitutes a reasonable approximation of the 'localized' banking market in which Spokane banks offer the major part of their services and to which local consumers can practicably turn for alternatives. E.g., United States v. Phillipsburg National Bank, 399 U.S. 350, 362—365, 90 S.Ct. 2035, 2042—2044, 26 L.Ed.2d 658 (1970). It is also the area where 'the effect of the merger on competition will be direct and immediate . . .,' which as this Court has held is the appropriate 'section of the country' for purposes of § 7. United States v. Philadelphia National Bank, 374 U.S. 321, 357, 83 S.Ct. 1715, 1738, 10 L.Ed.2d 915 (1963). Accordingly, we affirm the District Court's holding that the Spokane metropolitan area is the appropriate geographic market for determining the legality of the merger.
23
Prior to trial the Government stipulated that the Spokane area is a relevant geographic market in the instant case, and there is no dispute that it is the only banking market in which WTB is a significant participant. Nevertheless, the Government contends that the entire State is also an appropriate 'section of the country' in this case. It is conceded that the State is not a banking market. But the Government asserts that the State is an economically differentiated region, because its boundaries delineate an area within which Washington banks are insulated from most forms of competition by out-of-state banking organizations. The Government further argues that this merger, and others it allegedly will trigger, may lead eventually to the domination of all banking in the State by a few large banks, facing each other in a network of local, oligopolistic banking markets. This assumed eventual statewide linkage of local markets, it is argued, will enhance statewide the possibility of parallel, standardized, anticompetitive behavior. This concern for the possible statewide consequences of geographic market extension mergers by commercial banks appears to be an important reason for the Government's recent efforts to block such mergers through an application of the potential-competition doctrine under § 7.17
24
The Government's proposed reading of the 'any section of the country' phrase of § 7 is at variance with this Court's § 7 cases, and we reject it. Without exception the Court has treated 'section of the country' and 'relevant geographic market' as identical,18 and it has defined the latter concept as the area in which the goods or services at issue are marketed to a significant degree by the acquired firm. E.g., Philadelphia National Bank, supra, at 357—362, 83 S.Ct., at 1738—1741.19 In cases in which the acquired firm markets its products or services on a local, regional, and national basis, the Court has acknowledged the existence of more than one relevant geographic market.20 But in no previous § 7 case has the Court determined the legality of a merger by measuring its effects on areas where the acquired firm is not a direct competitor. In urging that the legality of this merger be gauged on a statewide basis, the Government is suggesting that we take precisely that step, because, as it concedes, the section of the country in which WTB markets by far the greatest portion of its services, due to the predominantly localized character of commercial banking, is the Spokane metropolitan area.21 Under the precedents, we decline the Government's invitation. We hold that in a potential-competition case like this one, the relevant geographic market or appropriate section of the country is the area in which the acquired firm is an actual, direct competitor.
25
Apart from the fact that the Government's statewide approach is not supported by the precedents, it is simply too speculative on this record. There has been no persuasive showing that the effect of the merger on a statewide basis 'may be substantially to lessen competition' within the meaning of § 7. To be sure, § 7 was designed to arrest mergers 'at a time when the trend to a lessening of competition in a line of commerce (is) still in its incipiency.' Brown Shoe Co., 370 U.S., at 317, 82 S.Ct., at 1520. See, e.g., United States v. Von's Grocery Co., 384 U.S. 270, 277, 86 S.Ct. 1478, 1482, 16 L.Ed.2d 555 (1966). Moreover, the proscription expressed in § 7 against mergers 'when a 'tendency' toward monopoly or (a) 'reasonable likelihood' of a substantial lessening of competition in the relevant market is shown,' United States v. Penn-Olin Chemical Co., 378 U.S. 158, 171, 84 S.Ct. 1710, 1717, 12 L.Ed.2d 775 (1964), applies alike to actualand potential-competition cases. Ibid. But it is to be remembered that § 7 deals in 'probabilities,' not 'ephemeral possibilities.' Brown Shoe Co., supra, 370 U.S., at 323, 84 S.Ct., at 1522, 8 L.Ed.2d 510.22 The Government's underlying concern for a linkage or network of statewide oligopolistic banking markets is, on this record at least, considerably closer to 'ephemeral possibilities' than to 'probabilities.' To assume, on the basis of essentially no evidence, that the challenged merger will tend to produce a statewide linkage of oligopolies is to espouse a per se rule against geographic market extension mergers like the one at issue here. No § 7 case from this Court has gone that far,23 and we do not do so today. For the purpose of this case, the appropriate 'section of the country' and the 'relevant geographic market' are the same—the Spokane metropolitan area.
III
POTENTIAL-COMPETITION DOCTRINE
26
The term 'potential competitor' appeared for the first time in a § 7 opinion of this Court in United States v. El Paso Natural Gas Co., 376 U.S. 651, 659, 84 S.Ct. 1044, 1048, 12 L.Ed.2d 12 (1964). El Paso was in reality, however, an actual-competition rather than a potential-competition case.24 The potentialcompetition doctrine has been defined in major part by subsequent cases, particularly United States v. Falstaff Brewing Corp., 410 U.S. 526, 93 S.Ct. 1096, 35 L.Ed.2d 475 (1973).25 Unequivocal proof that an acquiring firm actually would have entered de novo but for a merger is rarely available.26 Thus, as Falstaff indicates, the principal focus of the doctrine is on the likely effects of the premerger position of the acquiring firm on the fringe of the target market. In developing and applying the doctrine, the Court has recognized that a market extension merger may be unlawful if the target market is substantially concentrated, if the acquiring firm has the characteristics, capabilities, and economic incentive to render it a perceived potential de noto entrant, and if the acquiring firm's premerger presence on the fringe of the target market in fact tempered oligopolistic behavior on the part of existing participants in that market. In other words, the Court has interpreted § 7 as encompassing what is commonly known as the 'wings effect'—the probability that the acquiring firm prompted premerger procompetitive effects within the target market by being perceived by the existing firms in that market as likely to enter de novo. Falstaff, supra, at 531—537, 93 S.Ct., at 1100—1103.27 The elimination of such present procompetitive effects may render a merger unlawful under § 7.
27
Although the concept of perceived potential entry has been accepted in the Court's prior § 7 cases, the potential-competition theory upon which the Government places principal reliance in the instant case has not. The Court has not previously resolved whether the potential-competition doctrine proscribes a market extension merger solely on the ground that such a merger eliminates the prospect for long-term deconcentration of an oligopolistic market that in theory might result if the acquiring firm were forbidden to enter except through a de novo undertaking or through the acquisition of a small existing entrant (a so-called foothold or toehold acquisition). Falstaff expressly reserved this issue.28
28
The Government's potential-competition argument in the instant case proceeds in five steps. First, it argues that the potential-competition doctrine applies with full force to commercial banks. Second, it submits that the Spokane commercial banking market is sufficiently concentrated to invoke that doctrine. Third, it urges us to resolve in its favor the question left open in Falstaff. Fourth, it contends that, without regard to the possibility of future deconcentration of the Spokane market, the challenged merger is illegal under established doctrine because it eliminates NBC as a perceived potential entrant. Finally, it asserts that the merger will eliminate WTB's potential for growth outside Spokane. We shall address those points in the order presented.
29
A. Application of the Doctrine to Commercial Banks.
30
Since United States v. Philadelphia National Bank, 374 U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963), the Court has taken the view that, as a general rule, standard § 7 principles applicable to unregulated industries apply as well to mergers between commercial banks. See also United States v. First National Bank, 376 U.S. 665, 84 S.Ct. 1033, 12 L.Ed.2d 1 (1964). Congress reacted to Philadelphia National Bank by including in the Bank Merger Act of 1966 a 'convenience and needs' defense uniquely applicable to commercial banks. 12 U.S.C. § 1828(c)(5)(B) and (c)(7)(B). Subsequent cases have revealed, however, that that defense comes into play only after a district court has made a de novo determination of the status of a bank merger under the Clayton Act. See United States v. Third National Bank, 390 U.S. 171, 88 S.Ct. 882, 19 L.Ed.2d 1015 (1968); United States v. First City National Bank, 386 U.S. 361, 87 S.Ct. 1088, 18 L.Ed.2d 151 (1967). As the Court noted in Phillipsburg National Bank, supra, 'the antitrust standards of . . . Philadelphia, 418 U.S. 627 Philadelphia National Bank . . . were preserved in the Bank Merger Act of 1966.' 399 U.S., at 358, 90 S.Ct., at 2040.29
31
Although the Court's prior bank merger cases have involved combinations between actual competitors operating in the same geographic markets, an element that distinguishes them factually from this case, they nevertheless are strong precedents for the view that § 7 doctrines are applicable to commercial banking. In accord with the general principles of those cases, we hold that geographic market extension mergers by commercial banks must pass muster under the potential-competition doctrine. We further hold, however, that the application of the doctrine to commercial banking must take into account the unique federal and state regulatory restraints on entry into that line of commerce. Failure to do so would produce misconceptions that go to the heart of the doctrine itself.
32
The Government's present position has evolved over a series of eight District Court cases, all of them decided unfavorably to its views.30 The conceptual difficulty with the Government's approach, and an important reason why it has been uniformly unsuccessful in the district courts, is that it fails to accord full weight to the extensive federal and state regulatory barriers to entry into commercial banking.31 This omission is of great importance, because ease of entry on the part of the acquiring firm is a central premise of the potential-competition doctrine.32
33
Unlike, for example, the beer industry, see Falstaff Brewing Corp., supra, entry of new competitors into the commercial banking field is 'wholly a matter of governmental grace . . .' and 'far from easy.' Philadelphia National Bank, supra, 374 U.S., at 367, and n. 44, 83 S.Ct., at 1744. Beer manufacturers are free to base their decisions regarding entry and the scale of entry into a new geographic market on nonregulatory considerations, including their own financial capabilities, their long-range goals as to markets, the cost of creating new production and distribution facilities, and above all the profit prospects in the target market. They need give no thought to public needs and convenience. No comparable freedom exists for commercial banks. Ease of entry into a market presumes ease of exit—i.e., the withdrawal or financial collapse of a certain number of participants in that market. Reflecting this country's bitter experience of four decades ago that '(a) bank failure is a community disaster . . .,'33 entry into and exit from the commercial banking business have been extensively regulated by the Federal and State Governments. The regulatory barriers to entry include federal and state supervisory controls over the number of bank charters to be granted, designed to limit the number of banks operating in any particular market and thus to prevent bank failures. See id., at 328, 83 S.Ct., at 1722. In addition, no branch, no matter how small, may be opened without prior approval of the appropriate bank regulatory agency. Moreover, there are state-law restrictions, such as those in force in Washington, on de novo geographic expansion through branching and multibank holding companies. As noted earlier, Washington statutes forbid branching into cities and towns where the expanding bank does not maintain its headquarters and other banks operate, and they forbid branching from a branch in such areas. See supra, at 609—611. Similarly, Washington permits only one-bank holding companies. Supra, at 611—612.
34
In Philadelphia National Bank, supra, the Court relied on regulatory barriers to entry to support its conclusion that mergers between banks in direct competition in the same market must be scrutinized with particular care under § 7, 374 U.S., at 352, 367—370, 372, 83 S.Ct., at 1735, 1743—1745, 1746. But the same restrictions on new entry render it difficult to hold that a geographic market extension merger by a commercial bank is unlawful under the potential-competition doctrine. Such limitations often significantly reduce, if they do not eliminate, the likelihood that the acquiring bank is either a perceived potential de novo entrant or a source of future competitive benefits through de novo or foothold entry. Similarly, the Court noted in Philadelphia National Bank that under applicable state law de novo branching in the relevant market was permissible and presented an 'alternative to the merger route . . ..' Id., at 370, 83 S.Ct., at 1745. In this case, by contrast, there are serious questions whether an 'alternative to the merger route' through branching or a functional equivalent is a legal or feasible method of entry by NBC into the Spokane market.
35
B. Structure of the Spokane Market.
36
Since the legality of the challenged merger must be judged by its effects on the relevant product and geographic markets, commercial banking in the Spokane metropolitan area, it is imperative to determine the competitive characteristics of commercial banking in that section of the country. The potential-competition doctrine has meaning only as applied to concentrated markets. That is, the doctrine comes into play only where there are dominant participants in the target market engaging in interdependent or parallel behavior and with the capacity effectively to determine price and total output of goods or services. If the target market performs as a competitive market in traditional antitrust terms, the participants in the market will have no occasion to fashion their behavior to take into account the presence of a potential entrant. The present procompetitive effects that a perceived potential entrant may produce in an oligopolistic market will already have been accomplished if the target market is performing competitively. Likewise, there would be no need for concern about the prospects of long-term deconcentration of a market which is in fact genuinely competitive.
37
In an effort to establish that the Spokane commercial banking market is oligopolistic, the Government relied primarily on concentration ratios indicating that three banking organizations (including WTB) control approximately 92% of total deposits in Spokane. The District Court held against the Government on this point, finding that 'a highly competitive market' existed which 'does not suffer from parallel or other anticompetitive practices attributable to undue market power.' 1973—1 Trade Cas. 74,496, p. 94,246. The court apparently gave great weight to the testimony of the banks' expert witnesses concerning the number of bank organizations and banking offices operating in the Spokane metropolitan area. The record indicates that neither the Government nor the appellees undertook any significant study of the performance, as compared to the structure, of the commercial banking market in Spokane.
38
We conclude that by introducing evidence of concentration ratios of the magnitude of those present here the Government established a prima facie case that the Spokane market was a candidate for the potential-competition doctrine. On this aspect of the case, the burden was then upon appellees to show that the concentration ratios, which can be unreliable indicators of actual market behavior, see United States v. General Dynamics Corp., 415 U.S. 486, 94 S.Ct. 1186, 39 L.Ed.2d 530 (1974), did not accurately depict the economic characteristics of the Spokane market. In our view, appellees did not carry this burden, and the District Court erred in holding to the contrary. Appellees introduced no significant evidence of the absence of parallel behavior in the pricing or providing of commercial bank services in Spokane.34
39
We note that it is hardly surprising that the Spokane commercial banking market is structurally concentrated. As the Government's expert witness conceded, all banking markets in the country are likely to be concentrated.35 This is so because as a country we have made the policy judgment to restrict entry into commercial banking in order to promote bank safety. Thus, most banking markets in theory will be subject to the potential-competition doctrine. But the same factor that usually renders such markets concentrated and theoretical prospects for potential-competition § 7 cases—regulatory barriers to new entry will also make it difficult to establish that the doctrine invalidates a particular geographic market extension merger.
40
The third step in the Government's argument, resolution of the question reserved in Falstaff, was the primary basis on which the case was presented to the District Court36 and to us. The Government contends that the challenged merger violates § 7 because it eliminates the alleged likelihood that, but for the merger, NBC would enter Spokane de novo or through a foothold acquisition. Utilization of one of these methods of entry, it is argued, would be likely to produce deconcentration of the Spokane market over the long run or other procompetitive effects, because NBC would be required to compete vigorously to expand its initially insignificant market share.
41
Two essential preconditions must exist before it is possible to resolve whether the Government's theory, if proved, establishes a violation of § 7. It must be determined: (i) that in fact NBC has available feasible means for entering the Spokane market other than by acquiring WTB; and (ii) that those means offer a substantial likelihood of ultimately producing deconcentration of that market or other significant procompetitive effects. The parties are in sharp disagreement over the existence of each of these preconditions in this case. There is no dispute that NBC possesses the financial capability and incentive to enter. The controversy turns on what methods of entry are realistically possible and on the likely effect of various methods on the characteristics of the Spokane commercial banking market.
42
It is undisputed that under state law NBC cannot establish de novo branches in Spokane and that its parent holding company cannot hold more than 25% of the stock of any other bank. Entry for NBC into Spokane therefore must be by acquisition of an existing bank. The Government contends that NBC has two distinct alternatives for acquisition of banks smaller than WTB and that either alternative would be likely to benefit the Spokane commercial banking market.
43
First, the Government contends that NBC could arrange for the formation of a new bank (a concept known as 'sponsorship'), insure that the stock for such a new bank is placed in friendly hands, and then ultimately acquire that bank. Appellees respond that this approach would violate the spirit if not the letter of state-law restrictions on bank branching. They note that this method would require the issuance of either a state or a national charter, and they assert that neither state nor federal banking authorities would be likely to grant a charter for a new bank in a static, 'well-banked' market like Spokane. Moreover, it is argued that such officials would be certain to refuse to do so where the purpose of the scheme was to avoid the requirements of the state branching law.37 Appellees further note that the stock and assets of any new state bank in Washington are inalienable for at least 10 years without approval of state banking officials, see Wash.Rev.Code Ann. § 30.08.020(7), and they argue that such officials would refuse to grant approval for sale as part of a sponsorship plan.
44
The Government counters by pointing to instances in which sponsorship-acquisition of small banks by large banks has occurred in Washington, on occasion with the apparent knowledge and asserted approval of bank regulatory officials and within less than 10 years of the formation of the new bank.38 Indeed, the Government contends that NBC is presently sponsoring a small bank in an unrelated area of Washington with the purpose of ultimate acquisition and conversion of the bank into a branch of NBC. Appellees reply that if sponsorship by other banks has occasionally occurred, it is nonetheless illegal under state law and that prior instances of tolerated illegality do not convert an illegal process into a legal one. NBC also denies that it has ever engaged in sponsorship solely for the purpose of acquisition, and it insists that even if a new bank is sponsored there is no guarantee that the sponsor, rather than some other bank willing to outbid it, will acquire the sponsored bank.39 Appellees further point out, as is confirmed by the record, that the United States has not shown that any bank in Washington has ever used sponsorship-acquisition as a means of entering a major metropolitan area. In fact, the Government's principal witness in support of its sponsorship theory conceded on cross-examination that his bank 'wouldn't consider trying to use that method in getting into' a major city.40
45
In its findings and conclusions, the District Court did not resolve the question of the status of the Government's proposed sponsorship-acquisition approach under Washington's banking statutes.41 We similarly decline to decide this issue. Although we note that the intricate procedure for entry by sponsorship espoused by the Government can scarcely be compared to the de novo entry opportunities available to unregulated enterprises such as beer producers, see Falstaff, supra, we will assume, arguendo, that NBC conceivably could succeed in sponsoring and then acquiring a new bank in Spokane at some indefinite time in the future. It does not follow from this assumption, however, that this method of entry would be reasonably likely to produce any significant procompetitive benefits in the Spokane commercial banking market. To the contrary, it appears likely that such a method of entry would not significantly affect that market.
46
State law would not allow NBC to branch from a sponsored bank after it was acquired. NBC's entry into Spokane therefore would be frozen at the level of its initial acquisition. Thus, if NBC were to enter Spokane by sponsoring and acquiring a small bank, it would be trapped into a position of operating a single branch office in a large metropolitan area with no reasonable likelihood of developing a significant share of that market.42 This assumed method of entry therefore would offer little realistic hope of ultimately producing deconcentration of the Spokane market. Moreover, it is unlikely that a single new bank in Spokane with a small market share, and forbidden to branch, would have any other significant procompetitive effect on that market. The Government introduced no evidence, for example, establishing that the three small banks presently in Spokane have had any meaningful effect on the economic behavior of the large Spokane banks. In sum, it blinks reality to conclude that the opportunity for entry through sponsorship, assuming its availability, is comparable to the entry alternatives open to unregulated industries such as those involved in this Court's prior potential-competition cases43 or would be likely to produce the competitive effects of a truly unfettered method of entry. Since there is no substantial likelihood of procompetitive loss if the challenged merger is undertaken in place of the Government's sponsorship theory, we are unable to conclude that the effect of the former 'may be substantially to lessen competition' within the meaning of the Clayton Act.
47
As a second alternative method of entry, the Government proposed that NBC could enter by a foothold acquisition of one of two small, state-chartered commercial banks that operate in the Spokane metropolitan area.44 Appellees reply that one of those banks is located in a suburb and has no offices in the city of Spokane, that after an acquisition NBC under state law could not branch from the suburb into the city, and that such a peripheral foothold cannot be viewed as an economically feasible method of entry into the relevant market. Appellees also point out that the second small bank was chartered in 1965 and thus under state law would not have been available for acquisition until at least four years after the 1971 NBC—WTB merger agreement.
48
Granting the Government the benefit of the doubt that these two small banks were available merger partners for NBC, or were available at some not too distant time, it again does not follow that an acquisition of either would produce the long-term market-structure benefits predicted by the Government. Once NBC acquired either of these banks, it could not branch from the acquired bank. This limitation strongly suggests that NBC would not develop into a significant participant in the Spokane market, a prospect that finds support in the record. In 1964, one of the largest bank holding companies in the country, through its Seattlebased subsidiary, acquired a foothold bank with two offices in Spokane. Eight years later this bank, Pacific National Bank, held a mere 2.2% of total bank deposits in the Spokane metropolitan area, an insignificant increase over its share of the market at the date of the acquisition. See n. 2, supra. An officer of this bank, called as a witness by the Government, attributed the poor showing to an inability under state law to establish further branches in Spokane.45
49
In sum, with regard to either of its proposed alternative methods of entry, the Government has offered an unpersuasive case on the first precondition of the question reserved in Falstaff that feasible alternative methods of entry in fact existed. Putting these difficulties aside, the Government simply did not establish the second precondition. It failed to demonstrate that the alternative means offer a reasonable prospect of long-term structural improvement or other benefits in the target market. In fact, insofar as competitive benefits are concerned, the Government is in the anomalous position of opposing a geographic market extension merger that will introduce a third full-service banking organization to the Spokane market, where only two are now operating, in reliance on alternative means of entry that appear unlikely to have any significant procompetitive effect.46 Accordingly, we cannot hold for the Government on its principal potential-competition theory. Indeed, since the preconditions for that theory are not present, we do not reach it, and therefore we express no view on the appropriate resolution of the question reserved in Falstaff. We reiterate that this case concerns an industry in which new entry is extensively regulated by the State and Federal Governments.
50
The Government's failure to establish that NBC has alternative methods of entry that offer a reasonable likelihood of producing procompetitive effects is determinative of the fourth step of its argument. Rational commercial bankers in Spokane, it must be assumed, are aware of the regulatory barriers that render NBC an unlikely or an insignificant potential entrant except by merger with WTB. In light of those barriers, it is improbable that NBC exerts any meaningful procompetitive influence over Spokane banks by 'standing in the wings.'
51
Moreover, the District Court found as a fact that 'the threat of entry by NBC into the Spokane market by any means other than the consummation of the merger, to the extent any such threat exists, does not have any significant effect on the competitive practices of commercial banks in that market nor any significant effect on the level of competition therein.' 1973—1 Trade Cas. 74,496, p. 94,246. In making this finding, it appears that the District Court 'appraised the economic facts' about NBC and the Spokane market 'in order to determine whether in any realistic sense (NBC) could be said to be a potential competitor on the fringe of the market with likely influence on existing competition.' Falstaff, 410 U.S., at 533—534, 93 S.Ct., at 1101 (footnote omitted). Our review of the record indicates that the court's finding was not in error. The Government's only hard evidence of any 'wings effect' was a memorandum written in 1962 by an officer of NBC expressing the view that Spokane banks were likely to engage in price competition as NBC approached their market. Evidence of an expression of opinion by an officer of the acquiring bank, not an official of a bank operating in the target market, in a memorandum written a decade prior to the challenged merger does not establish a violation of § 7.
52
E. Elimination of WTB's Potential for Growth.
53
In the final step of its argument, the Government challenges the merger on the ground that it will eliminate the prospect that WTB may expand outside its base in Spokane and eventually develop into a direct competitor with large Washington banks in other areas of the State. The District Court found, however, that the Government had 'failed to establish . . . that there is any reasonable probability that WTB will expand into other banking markets . . ..' 1973—1 Trade Cas. 74,496, p. 94,246. The record amply supports this finding. At no time in its 70-year history has WTB established branches outside the Spokane metropolitan area. Nor has it ever acquired another bank47 or received a merger offer other than the one at issue here.48 In sum, the Government's argument about the elimination of WTB's potential for expansion outside Spokane is little more than speculation. It provides no sound basis for overturning the District Court's holding.
IV
CONCLUSION
54
In applying the doctrine of potential competition to commercial banking, courts must, as we have noted, take into account the extensive federal and state regulation of banks. Our affirmance of the District Court's judgment in this case rests primarily on state statutory barriers to de novo entry and to expansion following entry into a new geographic market. In States where such stringent barriers exist and in the absence of a likelihood of entrenchment, the potential-competition doctrine grounded as it is on relative freedom of entry on the part of the acquiring firm—will seldom bar a geographic market extension merger by a commercial bank. In States that permit free branching or multibank holding companies, courts hearing cases involving such mergers should take into account all relevant factors, including the barriers to entry created by state and federal control over the issuance of new bank charters. Testimony by responsible regulatory officials that they will not grant new charters in the target market is entitled to great weight, although it is not determinative. To avoid the danger of subjecting the enforcement of the antitrust laws to the policies of a particular bank regulatory official or agency, courts should look also to the size and growth prospects of the target market, the size and number of banking organizations participating in it, and past practices of regulatory agencies in granting charters. If regulatory restraints are not determinative, courts should consider the factors that are pertinent to any potential-competition case, including the economic feasibility and likelihood of de novo entry, the capabilities and expansion history of the acquiring firm, and the performance as well as the structural characteristics of the target market.
The judgment is
55
Affirmed.
56
Mr. Justice DOUGLAS took no part in the decision of this case.
57
Mr. Justice WHITE, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.
58
For the second time this Term, the Court's new anti-trust majority has chipped away at the policies of § 7 of the Clayton Act. In United States v. General Dynamics Corp., 415 U.S. 486, 94 S.Ct. 1186, 39 L.Ed.2d 530 (1974), the majority sustained the failing-company defense in a new guise. Here, it redefines the elements of potential competition and dramatically escalates the burden of proving that a merger 'may be substantially to lessen competition' within the meaning of § 7.
59
That we are dealing with a severely concentrated commercial banking market in the Spokane metropolitan area is conceded. The Court also proceeds on the basis that it was open to the Government to make its case by APPENDIX TO THE OPINION OF THE COURT
60
TOTAL DEPOSITS HELD BY THE 2 LARGEST, 5 LARGEST, 10 LARGEST, AND REMAININGCOMMERCIAL BANKING ORGANIZATIONS OF THE STATE OF WASHINGTON IN THE STATE OFWASHINGTON—June 30, 1972
61
No. of Percent Deposits Percent Rank in
Bank Organizations Offices of Total 000's of Total State
------------
Seattle-First National Bank-Seattle 144 20.96 $2,054,951 31.71 1
National Bank of Commerce-Seattle 107 15.57 1,268,132 19.57 2
------------
TOTAL 2 LARGEST BANKING
ORGANIZATIONS 251 36.54 $3,323,083 51.27
Pacific National Bank of Washington
-Seattle 64 9.32 650,342 10.03 3
Peoples National Bank of Washington
-Seattle 55 8.01 468,063 7.22 4
Washington Baneshares, Inc.-Spokane 51 7.42 372,739 5.75 5
------------
TOTAL 5 LARGEST BANKING
ORGANIZATIONS 421 61.28 $4,814,227 74.28
Puget Sound National Bank
-Tacoma 29 4.22 227,429 3.51 6
Bank of California-Seattle and Tacoma 2 .29 199,878 3.08 7
Seattle Trust & Savings Bank-Seattle 26 3.78 172,801 2.67 8
Washington Trust Bank-Spokane 8 1.16 96,518 1.49 9
Everett Trust & Savings Bank 13 1.89 91,034 1.40 10
------------
TOTAL 10 LARGEST BANKING
ORGANIZATIONS 499 72.63 $5,601,887 86.43
81 REMAINING BANKING
ORGANIZATIONS 188 27.37 $879,183 13.57
91 BANKING ORGANIZATIONS 687 100.00 $6,481,070 100.00
62
Note: Due to rounding, figures may not add to totals. proving that the NBC—WTB merger would probably cause a substantial lessening of competition in either one of two ways. First, it could be proved that NBC, with the resources and desire to enter the Spokane market, would probably have entered the market either by acquiring one of the small Spokane banks or by sponsoring a new bank and ultimately acquiring it. The merger thus deprived the Spokane market of a new competitor, and produced the requisite anticompetitive effect. Second, it could be shown that NBC's resources and interest in entering the Spokane market were so obvious to or recognized by those already in the market that, as a potential competitor waiting in the wings, NBC very probably exercised a restraining influence on anticompetitive practices in the concentrated Spokane banking market.
63
The majority does not quibble about the fact of NBC's resources and its incentive to extend its banking activities into Spokane. NBC is the State's second largest banking organization with total assets of.$1.8 billion as of 1971. It has branched widely in the State of Washington, having a total of 107 branches, 15 of them within 100 miles of Spokane. Two other Seattle banking organizations were already operating in Spokane; and NBC itself had seriously negotiated for an acquisition in that market. Given the opportunity, NBC would obviously enter Spokane. Under Washington law, it could not branch there; but it was free to acquire another bank, given consent of banking authorities. That consent was obtained for the acquisition involved in this case, and it may fairly be assumed that it could have been obtained for the acquisition, not of a major competitor contributing to the concentration in the Spokane market, but of one of the smaller banks—a so-called 'toehold' position in the market.
64
Another mode of entry into Spokane was also available to NBC. It could have been instrumental in forming a new bank in that market and in due course could have merged with the 'sponsored' institution. It is argued that this route was all but legally unavailable to NBC,1 but the sponsored-bank method of expansion has occurred frequently in the State of Washington. The District Court did not hold sponsorship barred by state law. This Court also refrains from so holding and proceeds on the assumption that the sponsored-bank route was available to NBC. Under state law, a merger with the new bank could not take place without the consent of banking authorities, prior to 10 years from the date the new bank began operations; but consent to merge prior to that time has been obtained in the past.
65
Thus, although branching into Spokane was not legally feasible, there were other modes of entry no less attractive or less feasible than entering by establishing a new branch. It is incredible that if branching into Spokane had been allowable NBC would not have entered in this way. It is equally unlikely that absent the understandably attractive merger with WTB, NBC would not have proceeded to acquire a smaller bank or to be instrumental in forming a new sponsored bank.
66
The Court apparently assumes this to be the case, but goes on to hold that the Government's proof failed because neither a small new bank nor one of the existing small banks, if acquired, had a realistic chance of deconcentrating the Spokane market to any substantial extent. Also, absent the capability of making substantial inroads on the market shares of the principal banks, it is said that those banks had nothing to fear from NBC as a potential competitor and that NBC therefore had no current influence on competitive practices in the Spokane market.
67
I part company with the majority at this point. The Spokane market was highly concentrated. NBC had the resources and the desire to enter the market. There were no impenetrable legal or economic barriers to its doing so; and it is sufficiently plain from the record that absent merger with WTB, NBC could and would either have made a toehold entry or been instrumental in establishing a sponsored bank in Spokane. But NBC chose to merge with a larger bank and to deprive the market of the competition it would have offered had it entered in either of two other ways. In my opinion, this made out a sufficient prima facie case under § 7, which, absent effective rebuttal, entitled the United States to judgment.
68
The Court's sole answer to the Government's proof is that even if NBC would have entered by acquisition or de novo through a sponsored bank, it would have 'little realistic hope of ultimately producing deconcentration of the Spokane market.' This was because under Washington law after acquiring an existing or newly formed bank, NBC could not branch from that institution but would be confined to the banking offices which it acquired at the time of the merger. In the Court's opinion, NBC, without branching, would have 'no reasonable likelihood of developing a significant share of that market,' and the Government's case therefore failed.
69
I cannot accept the per se view that, without branching, an able and willing newcomer to the banking market cannot be considered a sufficiently substantial competitive influence, immediately or in the foreseeable future, so that its loss to the market would warrant application of § 7. This is particularly true if the putative entrant is a large and successful banking organization with wide experience in developing new markets.
70
Small banks can be profitable, and they can grow rapidly. The experience of the three small banks in Spokane proves this. Each of them is a profitable bank. The profits of American Commercial Bank, for example, with headquarters in downtown Spokane, rose from $27,740 in 1966 to $132,527 in 1971. The deposits of each of the three small banks have grown. From 1966 to 1972, total bank deposits in the Spokane metropolitan area rose from $379.2 million to $513.5 million, a growth of 35% in six years. Spokane would not appear to be a stagnant banking market, and it provides opportunities for smaller banking concerns. The deposits in the three small banks during the same six years grew from $14.9 million to $39.4 million, an increase of approximately 160%. Their market share, although remaining relatively small, increased from 3.9% to 7.8%. Of course, deposits in the three large banking organizations also grew. Two of them increased their market shares very slightly, but the third lost ground from 38.3% to 31.6%, for a combined decline of the three from 96% to 92.3%. The small banks thus more than held their own in the Spokane market. This showing of the smaller banks hardly indicates such importence on the part of small competitors that a new entrant in the market should necessarily be deemed to be without influence in the market and to be beyond recognition under § 7.2
71
If Seattle-First National Bank, with 31.6% of the deposits in 1972, or Washington Bancshares, Inc., with 42.1%, had acquired either American Commercial Bank of Farmers & Merchants Bank, with 3.1% and 2.5% respectively of Spokane bank deposits, the merger would have been anticompetitive and forbidden by § 7, unless saved by the convenience-and-needs proviso of the Bank Merger Act. United States v. Philadelphia National Bank, 374 U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963). Depriving the market of a new competitor that could achieve similar status in a relatively short period of time should not be so readily placed beyond the reach of § 7 when considering the application of the doctrine of potential competition to market extension mergers.
72
The details on the relative size of individual bank branches in Spokane or elsewhere in metropolitan areas of the State are not in the record; but it is unbelievable that there are no branches that have started very small and grown very large. New branches must make their way, often in head-to-head competition with other banks. Some are more successful than others, and I cannot accept, as a per se legal rule, the notion that a new bank sponsored by NBC in downtown Spokane or elsewhere in the city must be forever deemed to be without substantial competitive impact on the banking community.3 It is incredible to me that the presence of a major Seattle bank like NBC in downtown Spokane could or would be ignored by the entrenched banking powers or should be ignored for the purposes of applying § 7 of the Clayton Act.
73
NBC has 15 branches within a 100-mile radius of Spokane. Those branches have $103 million in total deposits, including $4.4 million from Spokane customers. Two of these branches are in Spokane County and between them have $11 million in deposits. They also have loans totaling $10.2 million to Spokane interests. NBC is a major financial institution with large lending limits and offering a full line of commercial banking services. It is obviously equipped to penetrate and compete vigorously in the Spokane lending market wholly aside from how fast deposits might grow in a newly established or acquired Spokane bank. It is quite untenable to assert that the competition that might be offered in the Spokane lending market by a new bank formed by this obviously vigorous competitor is too insignificant to warrant the protections of § 7.4
74
The availability of branching is, of course, an important competitive consideration, but it should not be forgotten that American Commercial Bank, headquartered in downtown Spokane, has four branches and if acquired by NBC would give that bank a substantial operating capacity in Spokane. The majority, nevertheless, even assuming the acquisition of this bank by NBC, insists on its own view of competitive reality and holds that the loss of NBC as a competitor in place of American must be deemed an insignificant loss to competition. This is true even though one of the major competitors, Seattle-First National Bank, has only seven branches and under the state law already referred to, it is confined to its existing branches.
75
It is also true that if NBC entered Spokane by sponsoring a new bank, the new bank itself could legally branch and create the necessary branch infrastructure for as long as it was not acquired by NBC or another outsider. The majority states that this is 'probably unrealistic' and that it would 'multiply the problems' of obtaining approval of sponsorship from bank regulatory agencies. But this is sheer speculation; the Court simply has no idea what the attitude of regulatory officials would be in this regard. Furthermore, NBC itself has had experience with sponsored-bank situations, and, as the majority recognizes, it asserts that it has not sponsored banks solely for the purpose of acquisition. Apparently, relationships with a sponsored institution are themselves of inherent value, and the benefits would only increase if the sponsored bank itself branched as it grew.
76
Viewed in this light, the Court's per se rule becomes threadbare indeed when applied to NBC entering by acquisition into the Spokane market. The three existing smaller banks in Spokane have been successful and profitable and have even increased their share of the market in six years. Furthermore, Seattle-First National cannot legally go beyond its present seven branches in the Spokane market, and its share of the market has declined. It is quite unreasonable to think that NBC, if it acquired American Commercial, with its four branches could not be an effective competitor at least against Seattle-First National in Spokane with its seven branches, or against WTB with its eight.
77
The Court also errs in holding that NBC, an obvious potential competitor, cannot be deemed to have exercised substantial influence on the Spokane market and that its entry by merger with a major Spokane bank therefore represents no probable injury to competition in that market. To the extent that the Court's holding on this branch of the case rests on its notion that no bank, without branching, can make substantial inroads on the Spokane market, I disagree for reasons already stated. Beyond that, however, the waiting-in-the-wings approach to potential competition rests on what objective factors indicate the perception of the reasonably minded competitor in the Spokane market might be of the likelihood and impact of an entry by NBC, either de novo or by acquisition of a small bank. Predictions of market behavior and competitive success are just not as certain or uniformly held as the Court makes them out to be Here, before NBC, acquired WTB, NBC negotiated to acquire the much smaller Farmers & Merchants Bank—a three-office suburban bank with about $13 million in deposits and 2.5% of the market. The target bank was in the relevant geographic market accepted by the parties and Court. The President of Marine Bancorporation, Maxwell Carlson, had at various times noted that the President and Director of WTB, Philip Stanton, expected NBC to be in Spokane some day. One wonders, if the majority's branch-disability theory is correct, why these bankers even discussed potential entry into the market. The fact is that they did, and it is fair to assume that through informal contacts, and by reason of the prior acquisition discussions, bankers in the market were aware of NBC's interest. The majority would have one believe that even if NBC was interested, no one in the market would take it seriously enough to restrain anticompetitive practices. It is certainly possible, however, that even if bankers in the market doubted that NBC would actually be successful in acquiring a significant market share, if they entered the market, the possibility of entry and the possibility of competition following entry were sufficiently strong to restrain anticompetitive practices. If bankers thought that there was a probability of entry, which there surely was, but that their losses from such entry could be substantial, if NBC, once in the market, competed more effectively than anticipated, they would take countermeasures and make entry less attractive by refraining from engaging in anticompetitive practices.
78
In the last analysis, one's view of this case, and the rules one devises for assessing whether this merger should be barred, turns on the policy of § 7 of the Clayton Act to bar mergers which may contribute to further concentration in the structure of American business. United States v. Philadelphia National Bank, 374 U.S., at 362—363, 83 S.Ct., at 1740—1742; United States v. Penn-Olin Chemical Co., 378 U.S. 158, 170—171, 84 S.Ct. 1710, 1716 1717, 12 L.Ed.2d 775 (1964); Brown Shoe Co. v. United States, 370 U.S. 294, 331—332, 82 S.Ct. 1502, 1527—1528, 8 L.Ed.2d 510 (1962). The dangers of concentration are particularly acute in the banking business, since 'if the costs of banking services and credit are allowed to become excessive by the absence of competitive pressures, virtually all costs, in our credit economy, will be affected . . ..' Philadelphia Bank, supra, 374 U.S., at 372, 83 S.Ct., at 1746; United States v. Phillipsburg National Bank, 399 U.S. 350, 358, 90 S.Ct. 2035, 2040, 26 L.Ed.2d 658 (1970).
79
Unless an otherwise illegal merger is saved by a finding under the Bank Merger Act that it is necessary to serve the convenience and needs of the community, the law requires us in the first instance to judge bank mergers by normal § 7 standards. I simply cannot agree with the Court's narrow view of what bank mergers 'may . . . substantially . . . lessen competition.'
80
With respect to whether depriving the market of the competition offered by a new entrant violates § 7, it is not enough under the Court's view that the newcomer has itself found the market sufficiently attractive to enter and to assume all the start-up costs and risks attendant to a new business undertaking. The Court is willing also to assume that the new business will be profitable and long-lived, for under the approach taken today, it is not enough to show the loss of one or more profitable but small businesses. Apparently, it cannot be assumed that a small business, even when backed by a major enterprise, can or will be successful in competing against the entrenched powers in the market.
81
This thesis erects formidable barriers to the application of the potential-competition doctrine not only in the banking business but in other lines of commerce.5 To show that the potential entrant, waiting in the wings, is exercising a present influence on the market, or that its loss as a de novo or toehold entrant may be a substantial injury to competition, it will not be enough to prove ability and willingness to enter, along with the probability, or even certainty, of entry. Nor will it suffice to prove that the potential or actual entrant would be a profitable concern and successfully prevent the major figures in the market from increasing their market shares. The courts must also examine conditions in the market and conclude for themselves that there is a realistic expectation that the new entrant will appropriate for itself a substantial part of the business of the major competitors in the market.
82
The Court then delivers the coup de grace by imposing its own visions of reality in commercial banking markets: without unlimited branching authority in the market involved, no newcomer to the market can be sufficiently successful against others, who have the authority, to be a substantial competitor and to merit recognition under doctrines of potential competition. No new entrant can attain, let us say, 15 or 20 percent of the banking business in the Spokane area unless it has branching authority. The Court apparently insists this will be true no matter where the new banking office is located and no matter who and how well equipped and financed the new entrant may be. This is claiming a prescience that I doubt the Court has and is a view of the effectiveness and worth of competition, though having modest beginnings, that I do not share. Furthermore, the conclusion the Court reaches passes beyond my comprehension when it refuses to concede that NBC, if it acquired American Commercial Bank, with its four branches, could not make substantial inroads on the market shares of any of the major banks in the market, even though one of them is forever limited to seven offices under the present law.
1
By comparison, the largest banking organization with headquarters in Washington, Seattle-First National Bank, at the same time had assets of $2.8 billion, deposits of.$2.5 billion, and loans of.$1.4 billion. The figures shown here and in the text for NBC and Seattle-First National Bank take into account the operations of the two banks within and outside the State of Washington. Subsequent figures, see, e.g., n. 3, infra, reflect operations solely within the State.
2
See App. 1220. The following table depicts the relative status
of the six banking organizations operating in the Spokane metropolitan area from 1966 to mid-1972.
DISTRIBUTION OF TOTAL DEPOSITS HELD BY BANKING ORGANIZATIONS IN THE SPOKANE METROPOLITAN AREA, 1966—1972
(dollars in thousands)
12-31-66 6-30-72
% of % of
Banking Organization $ Total $ Total
Washington Bancshares,
Inc.* 155,885 41.1 216,340 42.1
Seattle-First National
Bank 145,251 38.3 162,220 31.6
Washington Trust Bank 63,102 16.6 95,464 18.6
Sub Total 364,238 96.1 474,024 92.3
American Commercial
Bank 3,552 .9 15,739 3.1
Farmers and Merchants
Bank 5,593 1.5 12,558 2.5
Pacific National Bank** 5,801 1.5 11,152 2.2
Total 379,184 100.0 513,473 100.0
Note: Due to rounding, figures may not add to totals.
*
Washington Bancshares, Inc.,a bank holding company, owns two subsidiaries operating in Spokane, Old National Bank of Washington and FirstNational Bank of Spokane. The deposit totals of these two banks are consolidated under the Washington Baneshares, Inc., entry in the above table.
**
The bank at the bottom of the table is a branch (with two banking offices) of Pacific National Bank of Washington, which has its principal office in Seattle. This Seattle Bank is in turn a subsidiary of Western Bancorporation, a multistate bank holding company with assets of approximately $14 billion.
3
See App. 1165. The relative size of banking organizations in Washington is indicated by a table introduced by the Government and set forth in the Appendix to this opinion. See infra, p. 643.
The degree of concentration in commercial banking in Washington has not increased significantly in the last decade. For the 12-year period ending December 31, 1971, the 10 largest banking organizations increased their aggregate share of total deposits by a single percentage point. WTB's percentage of total deposits in the State was essentially stable for this period, decreasing from 1.5% to 1.4%. From 1960 to 1971 the number of commercial banks in Washington increased by five.
4
See n. 2, supra.
5
12 U.S.C. § 36(c). See First National Bank v. Dickinson, 396 U.S. 122, 90 S.Ct. 337, 24 L.Ed.2d 312 (1969); First National Bank v. Walker Bank, 385 U.S. 252, 87 S.Ct. 492, 17 L.Ed.2d 343 (1966). Cf. United States v. Philadelphia National Bank, 374 U.S. 321, 328, 83 S.Ct. 1715, 1722, 10 L.Ed.2d 915 (1963).
6
This statute provides, in relevant part, that the articles of incorporation of any bank to be initiated in Washington shall state:
'(7) That for a stated number of years, which shall be not less than ten nor more than twenty years from the date of approval of the articles (a) no voting share of the corporation shall, without the prior written approval of the supervisor, be affirmatively voted for any proposal which would have the effect of sale, conversion, merger, or consolidation to or with, any other banking entity or affiliated financial interest, whether through transfer of stock ownership, sale of assets, or otherwise, (b) the corporation shall take no action to consummate any sale, conversion, merger, or consolidation in violation of this subdivision, (c) this provision of the articles shall not be revoked, altered, or amended by the shareholders without the prior written approval of the supervisor, and (d) all stock issued by the corporation shall be subject to this subdivision and a copy hereof shall be placed upon all certificates of stock issued by the corporation.'
7
This statute provides:
'A corporation or association organized under the laws of this state, or licensed to transact business in the state, shall not hereafter acquire any shares of stock of any bank, trust company, or national banking association which, in the aggregate, enable it to own, hold, or control more than twenty-five percent of the capital stock of more than one such bank, trust company, or national banking association: Provided, However, That the foregoing restriction shall not apply as to any legal commitments existing on February 27, 1933: And Provided, Further, That the foregoing restriction shall not apply to prevent any such corporation or association which has its principal place of business in this state from acquiring additional shares of stock in a bank, trust company, or national banking association in which such corporation or association owned twenty-five percent or more of the capital stock on January 1, 1961.
'A person who does, or conspires with another or others in doing, an act in violation of this section shall be guilty of a gross misdemeanor. A corporation that violates this section, or a corporation whose stock is acquired in violation hereof, shall forfeit its charter if it be a domestic corporation, or its license to transact business if it be a foreign corporation; and the forfeiture shall be enforced in an action by the state brought by the attorney general.'
8
The wisdom of inflexible limitations on de novo bank expansion like those in force in Washington has been questioned. E.g., Baker, State Branch Bank Barriers and Future Shock—Will the Walls Come Tumbling Down?, 91 Banking L.J. 119 (1974); Comment, Bank Branching in Washington: A Need for Reappraisal, 48 Wash.L.Rev. 611 (1973). They inhibit growth by internal expansion and compel banks to resort to mergers and acquisitions in order to enter many new markets. Although other reasons no doubt exist, these limitations ostensibly are designed to prevent banks from encountering financial difficulties through overextending themselves, and they often date from the period of bank failures in the 1930's. If bank safety is their purpose, such restrictions may deserve reconsideration today in light of the extensive range of regulatory controls that otherwise exist, including federal and state supervision of the issuance of new bank charters, controls on interest rates and investments, deposit insurance, and regular, intensive bank inspections. Whatever their efficacy, a question that is not ours to resolve, such barriers to new entry are a fact of banking life in Washington.
B. The proceedings.
9
See 80 Stat. 7, 12 U.S.C. § 1828(c)(2)(A) and (c)(5). If in a bank merger the 'acquiring, assuming, or resulting bank is to be a national bank . . .,' the merger must receive prior written approval from the Comptroller of the Currency. 12 U.S.C. § 1828(c)(2)(A). The Comptroller shall not approve any proposed merger transaction 'whose effect in any section of the country may be substantially to lessen competition, or to tend to create a monopoly, or which in any other manner would be in restraint of trade, unless it finds that the anticompetitive effects of the proposed transaction are clearly outweighed in the public interest by the probable effect of the transaction in meeting the convenience and needs of the community to be served.' 12 U.S.C. § 1828(c)(5) (B).
10
Section 7 of the Clayton Act, 38 Stat. 731, as amended, 64 Stat. 1125, 15 U.S.C. § 18, provides in pertinent part:
'No corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no corporation subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another corporation engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.'
11
In its complaint, the United States alleged that NBC and WTB were in direct competition due to the overlap of correspondent services and because NBC had two small branch offices located in Spokane County, although outside the Spokane metropolitan area. In a pretrial stipulation, however, the parties agreed that 'there is no substantial existing competition between NBC and WTB in the Spokane metropolitan area or in any section of the country.' App. 367.
12
Brief for United States 27—28.
13
In adopting, verbatim, proposed findings of fact in a complicated § 7 antitrust action, the District Court failed to heed this Court's admonition voiced a decade ago. United States v. El Paso Natural Gas Co., 376 U.S. 651, 656—657, 84 S.Ct. 1044, 1047, 1048, 12 L.Ed.2d 12 (1964). This has added considerably to our burden of reviewing the extensive record developed in this case. We have also been hampered by the absence of transcript citations in support of the District Court's findings. It is to be remembered that in a direct-appeal case like this one, we must apply the 'clearly erroneous' standard of Fed.Rule Civ.Proc. 52(a), just as the courts of appeals must in cases governed exclusively by 28 U.S.C. §§ 1291 and 1292. See, e.g., United States v. General Dynamics Corp., 415 U.S. 486, 94 S.Ct. 1186, 39 L.Ed.2d 530 (1974). We welcome any assistance in performance of that role, as do, undoubtedly, the courts of appeals.
With regard to the skeletal conclusions of law entered by the District Court, we reiterate that direct appeals of such cases, 'the trials of which usually result in long and complex factual records, come here without the benefit of any sifting by the Courts of Appeals.' El Paso Natural Gas Co., supra, 376 U.S., at 663, 84 S.Ct., at 1050 (separate opinion of Harlan, J.). Accordingly, if the District Court does not enter an opinion analyzing the relevant precedents in light of the record, we are deprived of this helpful guidance.
14
The court's reservations about the legality of this alleged potential method of entry by NBC into Spokane reflect the fact that the procedure is analogous in substance to de novo branching, yet under state law NBC is prohibited from establishing new branches in Spokane. See Wash.Rev.Code Ann. § 30.40.020 (Supp.1973). The parties are in sharp disagreement over whether the state branching statute proscribes the sponsorship and subsequent acquisition of a new bank. The Government contends that the formation of a new national bank is not governed by state-law restrictions on branching, citing 12 U.S.C. §§ 26, 27. Appellees respond in essence that this would still constitute sub rosa branching in violation of state law. The formation of a new national bank in Spokane would in any event require approval for a new charter from the Comptroller of the Currency. In this regard, the District Court gave 'great weight' to the testimony of the Regional Administrator of National Banks that it was unlikely that a charter for a new national bank in Spokane would be granted within the foreseeable future. 1973—1 Trade Cas. 74,496, p. 94,245.
15
The District Court also issued extensive findings of fact concerning the 'convenience and needs' defense set out in the Bank Merger Act of 1966, 12 U.S.C. § 1828(c)(5)(B). The court found in essence that NBC, as a full-service bank, would bring to the Spokane area a broad range of banking services that WTB, due to its limited size, is unable to provide. These included increased loan limits, different types of loans, international banking services, computer services, enhanced trust services, and other benefits. The court's findings on this subject led it to the conclusion that even if the merger violated the standards of the Clayton Act, it was nevertheless lawful under the Bank Merger Act of 1966. 1973—1 Trade Cas. 74,496, pp. 94,247—94,251. In light of our conclusion with regard to § 7 of the Clayton Act, we do not address the District Court's findings under the 'convenience and needs' defense.
16
See United States v. Phillipsburg National Bank, 399 U.S. 350, 359—362, 90 S.Ct. 2035, 2041—2043, 26 L.Ed.2d 658 (1970); United States v. Third National Bank, 390 U.S. 171, 182 n. 15, 88 S.Ct. 882, 889, 19 L.Ed.2d 1015 (1968); United States v. Philadelphia National Bank, 374 U.S., at 356—357, 83 S.Ct., at 1737—1738. See also United States v. Aluminum Company of America, 377 U.S. 271, 275 n. 3, 84 S.Ct. 1283, 1286, 12 L.Ed.2d 314 (1964); United States v. First National Bank, 376 U.S. 665, 667, 84 S.Ct. 1033, 1034, 12 L.Ed.2d 1 (1964).
17
See, e.g., Baker, Potential Competition in Banking: After Greeley, What?, 90 Banking L.J. 362 (1973); Solomon, Bank Merger Policy and Problems: A Linkage Theory of Oligopoly, 89 Banking L.J. 116 (1972).
18
The Court's first case under amended § 7 referred to 'section of the country' and 'geographic market' in the same breath, see Brown Shoe Co. v. United States, 370 U.S. 294, 324, 82 S.Ct. 1502, 1523, 8 L.Ed.2d 510 (1962) ('a geographic market (the 'section of the country')'), as did the Court's first § 7 bank merger case. See Philadelphia National Bank, supra, 374 U.S., at 356, 83 S.Ct., at 1737 ("section of the country' (relevant geographical market)'). See also Phillipsburg National Bank, supra, 399 U.S., at 362—365, 90 S.Ct., at 2042—2044. Identity between 'section of the country' and relevant geographic market has been assumed in the § 7 potential-competition cases. E.g., United States v. Falstaff Brewing Corp., 410 U.S. 526, 527, 93 S.Ct. 1096, 1098, 35 L.Ed.2d 475 (1973); United States v. Continental Can Co., 378 U.S. 441, 447, 84 S.Ct. 1738, 1742, 12 L.Ed.2d 953 (1964).
19
If a challenged combination takes the form of a joint venture by which two firms plan to enter a new area simultaneously, the relevant georgraphic market is the section of the country in which the newly formed enterprise will market its goods. See United States v. Penn-Olin Chemical Co., 378 U.S. 158, 84 S.Ct. 1710, 12 L.Ed.2d 775 (1964).
20
See, e.g., United States v. Pabst Brewing Co., 384 U.S. 546, 86 S.Ct. 1665, 16 L.Ed.2d 765 (1966). Some of the Court's language in Pabst suggests that the Government may challenge a merger under § 7 without establishing any relevant geographic market, see id., at 549—550, 86 S.Ct., at 1667—1668, a suggestion that prompted separate opinions by Mr. Justice White, id., at 555, 86 S.Ct., at 1670, by Mr. Justice Harlan, joined by Mr. Justice Stewart, Ibid., and by Mr. Justice Fortas. Id., at 561, 86 S.Ct., at 1673. But Pabst in reality held that the Government had established three relevant markets in which the acquired firm actually marketed its products—a single State, a multistate area, and the Nation as a whole. See id., at 550—551, 86 S.Ct., at 1668 1669. And in that case the acquiring firm was an actual competitor of the acquired firm in all three relevant geographic markets. Ibid. Thus while Pabst stands for the proposition that there may be more than one relevant geographic market it did not abandon the traditional view that for purposes of § 7 'section of the country' means 'relevant geographic market' and the latter concept means the area in which the relevant product is in fact marketed by the acquired firm.
21
The record demonstrates in several ways the local character of the area over which WTB exerts a competitive influence. For example, as of January 31, 1972, 90.1% of WTB's deposit accounts originated within the Spokane metropolitan area; 4.1% originated elsewhere in Spokane County; and the remainder came from eastern Washington, western Washington, and other States. App. 1861.
22
As Mr. Justice Marshall noted in Falstaff Brewing Corp., supra, 410 U.S., at 555, 93 S.Ct., at 1112 (separate opinion), 'remote possibilities are not sufficient to satisfy the test set forth in § 7.' Rather, the loss of competition 'which is sufficiently probable and imminent' is the concern of § 7. United States v. Continental Can Co., supra, 378 U.S., at 458, 84 S.Ct., at 1748.
23
We put aside cases where an acquiring firm's market power, existing capabilities, and proposed merger partner are such that the merger would produce an enterprise likely to dominate the target market (a concept known as entrenchment). See FTC v. Procter & Gamble Co., 386 U.S. 568, 87 S.Ct. 1224, 18 L.Ed.2d 303 (1967). Cf. Falstaff Brewing Corp., supra, 410 U.S., at 531, 93 S.Ct., at 1100. There is no allegation that the instant merger would produce entrenchment in the Spokane market.
24
The merger declared unlawful in El Paso 'removed not merely a potential, but rather an actual, competitor.' Turner, Conglomerate Mergers and Section 7 of the Clayton Act, 78 Harv.L.Rev. 1313, 1371 (1965). Accord, Berger & Peterson, Conglomerate Mergers and Criteria for Defining Potential Entrants, 15 Antitrust Bulletin 489, 498 (1970); Davidow, Conglomerate Concentration and Section Seven: The Limitations of the Anti-Merger Act, 68 Col.L.Rev. 1231, 1242 n. 36 (1968). Prior to the acquisition at issue in El Paso, the acquired firm had entered a tentative supply contract with one of the acquiring firm's substantial customers in the relevant market, compelling the acquiring firm to make significant price and delivery concessions in order to retain that customer. 376 U.S., at 654—655, 659, 84 S.Ct., at 1046—1047, 1048. The acquired firm was thus 'shown by (the) record to have been a substantial factor in the (relevant) market at the time it was acquired . . ..' Id., at 658, 84 S.Ct., at 1048. The degree of entry that the acquired firm had achieved into the market of the acquiring firm distinguishes El Paso from subsequent cases truly presenting a potential-competition situation. It also distinguishes El Paso from the instant case, where the record demonstrates no analogous penetration of WTB's market by NBC or of NBC's market by WTB.
25
See also Ford Motor Co. v. United States, 405 U.S. 562, 567—568, 92 S.Ct. 1142, 1146—1147, 31 L.Ed.2d 492 (1972); id., at 591—592, 92 S.Ct., at 1158—1159 (separate opinion of Burger, C.J.); FTC v. Procter & Gamble Co., supra; United States v. Continental Can Co., supra; United States v. Penn-Olin Chemical Co., supra.
26
See Brodley, Oligopoly Power Under the Sherman and Clayton Acts—From Economic Theory to Legal Policy, 19 Stan.L.Rev. 285, 357—358 (1967).
27
See also, Robinson, Antitrust Developments: 1973, 74 Col.L.Rev. 163, 180—190 (1974); Berger & Peterson, supra; Davidow, supra; Turner, supra, at 1362—1386; Hale & Hale, Potential Competition Under Section 7: The Supreme Court's Crystal Ball, 1964 Sup.Ct.Rev. 171; Note, United States v. Falstaff Brewing Corporation: Potential Competition Re-examined, 72 Mich.L.Rev. 837 (1974).
28
See 410 U.S., at 537, 93 S.Ct., at 1103.
'We leave for another day the question of the applicability of § 7 to a merger that will leave competition in the marketplace exactly as it was, neither hurt nor helped, and that is challengeable under § 7 only on grounds that the company could have, but did not, enter de novo or through 'toe-hold' acquisition and that there is less competition than there would have been had entry been in such a manner.'
29
See, e.g., Kintner & Hansen, A Review of the Law of Bank Mergers, 14 B.C.Ind. & Com.L.Rev. 213 (1972); Alcorn, Phillipsburg and Beyond—Developing Trends in Substantive Standards for Bank Mergers, 9 Houston L.Rev. 417 (1972); Shull & Horvitz, The Bank Merger Act of 1960: A Decade After, 16 Antitrust Bulletin 859 (1971); Lifland, The Supreme Court, Congress, and Bank Mergers, 32 Law & Contemp.Prob. 15 (1967); Via, Antitrust and the Amended Bank Merger and Holding Company Acts: The Search for Standards, 53 Va.L.Rev. 1115 (1967). Cf. Wu & Connell, Merger Myopia: An Economic View of Supreme Court Decisions on Bank Mergers, 59 Va.L.Rev. 860 (1973).
30
In addition to the District Court decision in this case, see United States v. Connecticut National Bank, 362 F.Supp. 240 (Conn.1973), vacated and remanded, 418 U.S. 656, 94 S.Ct. 2788, 41 L.Ed.2d 1016; United States v. United Virginia Bankshares, Inc., 347 F.Supp. 891 (E.D.Va.1972); United States v. First National Bancorporation, Inc., 329 F.Supp. 1003 (Colo.1971), aff'd per curiam, 410 U.S. 577, 93 S.Ct. 1434, 35 L.Ed.2d 507 (1973); United States v. Idaho First National Bank, 315 F.Supp. 261 (Idaho 1970); United States v. First National Bank of Maryland, 310 F.Supp. 157 (Md.1970); United States v. First National Bank of Jackson, 301 F.Supp. 1161 (S.D.Miss.1969); United States v. Crocker-Anglo National Bank, 277 F.Supp. 133 (N.D.Cal.1967) (three-judge court).
31
See Robinson, supra, at 189 n. 162; Shenefield, Annual Survey of Antitrust Developments—The Year of the Regulated Industry, 31 Wash. & Lee L.Rev. 1, 37—39 (1974); Hale & Hale, supra, at 179.
32
This Court's potential-competition cases have repeatedly noted this factor. E.g., FTC v. Procter & Gamble Co., 386 U.S., at 580, 87 S.Ct., at 1231; United States v. Continental Can Co., 378 U.S., at 464—465, 84 S.Ct., at 1750—1751. See J. Bain, Industrial Organization 8 (2d ed. 1968): 'The condition of entry . . . determines the relative force of potential competition as an influence or regulator on the conduct and performance of sellers already established in a market.' See also P. Areeda, Antitrust Analysis 517 (1967): 'The sight of a particular firm 'waiting at the market's edge' may emphasize the entry threat, but it is ease of entry, not necessarily an identifiable potential entrant, that limits present market power by reminding existing firms that high profits will attract outsiders.'
33
Philadelphia National Bank, 374 U.S., at 375, 83 S.Ct., at 1747 (Harlan, J., dissenting).
34
The marketing of many forms of commercial bank services is controlled by government regulation. For example, regulation, not concentration in a banking market, produces parallelism with respect to such important elements of the banking business as interest allowed on savings accounts and interest charged on home mortgage loans. There are also many individualized judgments in the banking business, such as the decision whether to extend credit in various cases, that are not prome to parallel behavior regardless of the concentration of a market. Nevertheless, unfettered competition among banks does exist in a number of areas important to the public, as evidenced by the much-advertised differences in various forms of services offered by banks within the same geographic market. It is with regard to the latter economic activity that actual market behavior, and especially the presence or absence of significant parallel conduct, becomes relevant in this type of case.
35
App. 534.
C. Potential De Novo or Foothold Entry.
36
Brief for United States 27—28.
37
The Government called as a witness a former state supervisor of banking. On cross-examination, this witness testified that if the purpose of the organization of a new bank were to establish a potential branch for another bank, be would not regard that as a proper objective under state chartering statutes. App. 768—770.
38
Cf. Comment, 48 Wash.L.Rev. 611, 626—628 (1973).
39
The Government did not establish that NBC has ever acquired a bank that it had assisted in starting. It did offer substantial evidence that NBC has assisted in the formation of a new bank in south-central Washington, outside any major metropolitan area. NBC undertook this effort in response to the desire of one of its major clients to have a bank in that area. But NBC has no contractual right to acquire that bank, and indeed there is no guarantee that it will ultimately be successful in acquiring it.
40
App. 614.
41
During the trial, the District Judge commented from the bench that he could not see 'anything civilly wrong' with the Government's proposed sponsorship-acquisition approach. He apparently assumed that it was possible. App. 870. In its findings, the court took the view that such a method of entry was not economically feasible, in light of state-law restrictions on branching from a branch and the characteristics of the banking business. 1973—1 Trade Cas. 74,496, p. 94,245.
42
NBC's acquisition of WTB, by comparison, will give it eight banking offices in Spokane and a significant market share. From this position, NBC will be able to have a substantial impact on the Spokane market.
The Government suggests that a sponsored bank could create a number of branches before being acquired. Brief for United States 50 n. 47. The Government offered no proof that this has ever occurred in Washington. Undertaking sponsorship on such a scale is probably unrealistic, and it would multiply the problems of obtaining approval of a sponsorship plan from bank regulatory agencies. In any event, nothing in § 7 of the Clayton Act requires a firm to go to such lengths in order to avoid a merger that has no effect on concentration in the relevant market in the first place.
43
E.g. United States v. Falstaff Brewing Corp., 410 U.S. 526, 93 S.Ct. 1096, 35 L.Ed.2d 475 (1973); FTC v. Procter & Gamble Co., 386 U.S., at 580, 87 S.Ct., at 1231, 18 L.Ed.2d 303.
44
The third small bank in Spokane is a branch of a large nationally chartered bank in Seattle, which in turn is owned by a large holding company. There is no allegation that this small bank is a potential foothold acquisition. The Government presses its foothold-acquisition approach with considerably less vigor than its sponsorship theory, which may reflect the fact that under the former approach the total number of banking organizations in Spokane would remain the same.
45
App. 1103.
46
Cf. Falstaff Brewing Corp., supra, 410 U.S., at 561, 93 S.Ct., at 1115, 35 L.Ed.2d 475 (separate opinion of Marshall, J.):
'If the company would have remained outside the market but for the possibility of entry by acquisition, and if it is exerting no influence as a perceived potential entrant, then there will normally be no competitive loss when it enters by acquisition. Indeed, there may even be a competitive gain to the extent that it strengthens the market position of the acquired firm.' (Footnote omitted.)
D. Perceived Potential Entry.
47
App. 931.
48
Id., at 933.
1
The evidence, based upon past practices, is entirely to the contrary. NBC has itself employed the procedure with regard to the Columbia Center National Bank located in a shopping center in south central Washington. The techniques it employed included finding an organizer for the bank, controlling the sublease of the land on which the new bank was to be located, through Marine Bancorporation, so as to prevent acquisition by others without its approval, and making sure the majority stock of the bank was in friendly hands. App. 246—280. The record abounds with various examples of the technique by other Washington banks; and federal authorities were aware of many of the methods as disclosed in the applications for approval of acquisition by the sponsors. The statute also forbids a new bank from merging with or permitting its assets to be acquired by another bank for a period of 10 years but only without the consent of the state supervisor. Suffice it to state that earlier acquisitions have, as the majority recognizes, been made in the past. Surely the fragmentary fears of illegality are not enough to overturn what seems a perfectly well-established technique of market entry not at odds with the language of the state statute. It should be noted that the District Court, although not formally ruling on the state law matter in its findings of fact and conclusions of law, did state during trial that this was, in its view, a feasible means of entry. App. 870.
2
The banks rely on the experience of Pacific National Bank of Washington. In 1964, a large bank holding company acquired a toehold in Spokane by acquiring an existing small bank, but by 1972 had only garnered 2.2% of the total bank deposits in Spokane. A vice president of the bank testified at trial that its disappointing share of the market—its 1972 share of industrial and commercial loans was 4.6%—was probably due to its inability to branch. Although this officer also testified that his bank was not opposing the merger of NBC and WTB, he certainly was an interested party. Upon this witness' opinion, the outcome of this case cannot hinge. In light of the objective evidence, which strongly suggests that competition can exist without equality in branch capability, the testimony of this vice president should not be given great weight. It is not only a speculative statement as to the failure of the Pacific National; it is also self-serving to the extent it keeps additional competitors out of the market. As with the testimony of bank officials who profess no interest in entering a market, see United States v. Falstaff Brewing Corp., 410 U.S. 526, 534—535, 93 S.Ct. 1096, 1101—1103, 35 L.Ed.2d 475 (1973), it should only be considered along with the rest of the objective economic evidence.
3
Evidence introduced by the Government as to the ability of banks in the other major metropolitan banking markets of Washington—Seattle, Tacoma, and Everett—totally undercuts the Court's assumption that a bank with only one office cannot acquire a substantial enough market share to effect deconcentration. In Seattle, the Bank of California, with only one office, had $112 million in total deposits in 1970, representing 6.27% of the total deposit market. This share can be compared with that of Pacific National Bank of Washington which, with 13 offices, had a 9.38% market share. In Tacoma, the Bank of California-Tacoma had $65.4 million in total deposits which represented a 15.55% market share. Compare this with the 3.17% share of Seattle-First National Bank-Tacoma, with four offices. In Everett, Peoples National Bank of Washington-Everett, with one office, had $17.2 million in total deposits, a 10.83% market share.
4
As the majority recognizes, the relevant product market in this case is the cluster of services offered by commercial banks. A main component of that cluster, and one which determines profits, is the ability to provide loans, and it seems to me that a prospect of competition for loans, whether based on deposits garnered in Spokane or elsewhere, has a substantial possibility of effecting deconcentration in at least one segment of the banking business. The fact that profitability and number of offices are not highly correlated is supported by comparing the experience of Washington Bancshares and Seattle-First National Bank. In 1971, the former had 23 offices and a net income of $2.2 million. The latter, with only seven offices, had a net income of $3.5 million. In that same year, although Washington Bancshares had $45.6 million more in deposits than did Seattle-First National, the latter had an edge of $7.2 million in commercial and industrial loans.
5
The Court professes to limit its per se rule to 'an industry in which new entry is extensively regulated by the State and Federal Governments.' The case, as decided, however, does not turn on barriers to entry, but 'barriers' to effective competition, once entry is effected, and 'barriers' to effective competition are not easily limited to regulated industries. The Court lays itself open for arguments that economic, as well as legal, barriers exist for new competitors. At least it is difficult to see why one should be more controlling than another; in fact, the Court itself blurs the two.
| 78
|
41 L.Ed.2d 1016
94 S.Ct. 2788
418 U.S. 656
UNITED STATES, Appellant,v.The CONNECTICUT NATIONAL BANK et al.
No. 73—767.
Argued April 23, 1974.
Decided June 26, 1974.
Syllabus
The United States brought this civil antitrust action under § 7 of the Clayton Act challenging a proposed consolidation between the Connecticut National Bank (CNB) and the First New Haven National Bank (FNH), which are, respectively, the fourth and eighth largest commercial banks in Connecticut. The banks operate in contiguous areas of the State, CNB having headquarters in Bridgeport, with 51 offices there and in nearby towns; FNH having headquarters in New Haven, with 22 offices there and in nearby towns. The Government contended that the merger would eliminate significant potential competition in commercial banking in the New Haven and Bridgeport metropolitan areas and in other areas in Connecticut. The District Court rejected the Government's arguments in support of that position, relying on state law restraints on de novo branching, the two banks' expansion plans and capabilities, the posture of national and state regulatory officials regarding the issuance of new bank charters, and the existence and economic feasibility of possible foothold acquisitions. The court concluded that under § 7 commercial banking is not a distinct line of commerce in Connecticut and that the relevant geographic market, or 'section of the country' under that provision, is the State as a whole. Held:
FNH has its headquarters in the town of New Haven, approximately 19 miles to the northeast of Bridgeport along the Long Island Sound. FNH is the eighth largest commercial bank in Connecticut. At the end of 1972, it held 4.1% of commercial bank deposits in the State. FNH operates 22 bank offices in New Haven and surrounding towns.
1. The District Court erred in holding that the appropriate 'line of commerce' within the meaning of § 7 included both commercial banks and savings banks. Pp. 660—666.
2. The District Court further erred in ruling that the relevant geographic market is the State of Connecticut as a whole. In a potential-competition case like this, the relevant geographic market must be defined as the localized area in which the acquired bank is insignificant, direct competition with other banks, albeit not the acquiring bank. United States v. Marine Bancorporation, 418 U.S. 602, 94 S.Ct. 2856, 41 L.Ed.2d 978. Pp. 666—668.
3. On remand, the District Court must make a determination as to the geographic market in which each of the banks operates and to which the bulk of its customers may turn for alternative commercial bank services, and in making that determination it will be aided by the following considerations: (i) the Government has the burden of producing evidence to define localized banking markets; (ii) in satisfying that burden (as the District Court correctly held) the Government cannot rely only on Standard Metropolitan Statistical Areas; and (iii) town boundaries, although significant, are not controlling. Pp. 673—673.
4. The Government's contention that the State as a whole, though not a banking market, is a 'section of the country' within the meaning of § 7 is without merit, Marine Bancorporation, supra. P. 672—673.
362 F.Supp. 240, vacated and remanded.
Howard E. Shapiro, Washington, D.C., for appellant.
George D. Reycraft, Washington, D.C., for appellees The Connecticut National Bank and others.
Lee Loevinger, Washington, D.C., for appellee Comptroller of the Currency.
Mr. Justice POWELL delivered the opinion of the Court.
1
This case concerns the legality of a proposed consolidation of two nationally chartered commercial banks operating in adjoining regions of Connecticut. The United States brought a civil antitrust action challenging the consolidation under § 7 of the Clayton Act, 38 Stat. 731, as amended, 15 U.S.C. § 18. Following a lengthy trial and on the basis of extensive findings and conclusions, the United States District Court for the District of Connecticut dismissed the Government's complaint. 362 F.Supp. 240 (1973). The Government brought a direct appeal pursuant to the Expediting Act, 32 Stat. 823, as amended, 15 U.S.C.A. § 29, and the Court noted probable jurisdiction, 414 U.S. 1127, 94 S.Ct. 863, 38 L.Ed.2d 751 (1974).
2
The banks desiring to consolidate, Connecticut National Bank (CNB) and First New Haven National Bank (FNH), have offices in contiguous areas in the southwestern portion of Connecticut, CNB maintains its headquarters in the town of Bridgeport, which is situated on the Long Island Sound approximately 60 miles from New York City. CNB is the fourth largest commercial bank in the State. At year-end 1972, it held 6.2% of the deposits in commercial banks in Connecticut. CNB operates 51 offices located in Bridgeport and nearby towns in the extreme southwest section of Connecticut.
3
FNH has its headquarters in the town of New Haven, approximately 19 miles to the northeast of Bridgeport along the Long Island Sound. FNH is the eighth largest commercial bank in Connecticut. At the end of 1972, it held 4.1% of commercial bank deposits in the State. FNH operates 22 bank offices in New Haven and surrounding towns.
4
In Connecticut as a whole at the end of 1971, the five largest commercial banks held 61% and the 10 largest commercial banks held 83% of the deposits in such banks in the State. Two large commercial banks based in Hartford, Connecticut Bank & Trust Co. of Hartford and Hartford National Bank, operate essentially statewide. At year-end 1972, they had 41% of the total commercial bank deposits held by Connecticut banks.
5
CNB and FNH both have offices and are in direct competition in a so-called 'four-town area' located between Bridgeport and New Haven. The banks assured the District Court, however, that in implementing the consolidation they would divest themselves of a sufficient number of offices in the fourtown area to render insignificant the degree of overlap of their areas of actual operation. The District Court held that this divestiture plan eliminated any antitrust difficulties presented by the merger of direct competitors. 362 F.Supp., at 268—270, 286. The United States has not pursued the point on appeal. Accordingly, the case has been presented to us strictly as a geographic market extension merger on the part of both banks. The proposed consolidation would join the banks under FNH's national charter (with headquarters in Bridgeport). It would have no effect on the number of banks operating in either the Bridgeport or New Haven area. In that posture, the case presents potential- competition issues similar to those raised in United States v. Marine Bancorporation, Inc., 418 U.S. 602, 94 S.Ct. 2856, 41 L.Ed.2d 978.
6
The District Court rejected the Government's potential-competition arguments, relying on such factors as state-law restraints on de novo branching,1 the expansion plans and capabilities of the two banks, the posture of national and state regulatory officials regarding the issuance of new bank charters, and the existence and economic feasibility of possible foothold acquisitions. 362 F.Supp., at 286—288. As we have held today in the Marine Bancorporation case, these and analogous factors are the appropriate considerations to take into account in determining the legality under § 7 of the Clayton Act of geographic market extension mergers by commercial banks. We are unable, however, to reach the question of whether the District Court correctly assessed the import of those factors in the instant case. We have also held in Marine Bancorporation that the legality of a market extension merger must be determined against the backdrop of properly defined product and geographic markets. See 418 U.S., at 618, 94 S.Ct., at 2868. In our view, the District Court erred in its definition of both concepts, and it is not possible to ascertain the degree, if any, to which those errors may have influenced its conclusions with regard to the Government's potential-competition arguments. Accordingly, the District Court's judgment must be vacated and the case remanded for reconsideration.
7
* The District Court concluded that the appropriate 'line of commerce' within the meaning of § 7 included both commercial banks and savings banks. 362 F.Supp., at 281. The court recognized that its conclusion departed from this Court's holdings in, e.g., United States v. Phillipsburg National Bank, 399 U.S. 350, 359 362, 90 S.Ct. 2035, 2041, 26 L.Ed.2d 658 (1970), and United States v. Philadelphia National Bank, 374 U.S. 321, 356—357, 83 S.Ct. 1715, 1737, 10 L.Ed.2d 915 (1963). But in the District Court's view the pronouncements in Phillipsburg National Bank and Philadelphia National Bank 'were not intended to be ironclad, hard and fast rules which require a court to don blinders to block out the true competitive situation existing in every set of circumstances.' 362 F.Supp., at 280.
8
Several factors led the District Court to the conclusions that 'savings banks are in direct and substantial competition with commercial banks in providing product-services to the banking consumers in Connecticut . . .,' and that '(t) he cold, hard realities of the situation are that savings and commercial banks are fierce competitors in this state.' Ibid. The court noted that under state law savings banks in the near future will be permitted to offer one of the traditional indicia of commercial banks, personal checking accounts. See Conn.Pub.Act No. 73—195 (May 14, 1973). It pointed out that savings banks in Connecticut compete with commercial banks for real estate mortgages, personal loans, IPC (individual, partnership, and corporate) deposits, and, the court found, commercial loans. 362 F.Supp., at 280. If cited United States v. Continental Can Co., 378 U.S. 441, 84 S.Ct. 1738, 12 L.Ed.2d 953 (1964), for the proposition that 'complete industry overlap' is not required to establish a relevant line of commerce under § 7. 362 F.Supp., at 281. It also relied on the omission of the 'in any line of commerce' phrase from the Bank Merger Act of 1966, 12 U.S.C. § 1828(c)(5)(B), an Act which in other essential respects tracks the language of § 7 of the Clayton Act.2 Finally, it distinguished Philadelphia National Bank, supra, and Phillipsburg National Bank, supra, by pointing to the absence of significant competition by savings banks in the relevant geographic markets in those cases. 362 F.Supp., at 281. The District Court's conclusion on the appropriate line of commerce caused it to 'shade' (i.e., to reduce) the Government's concentration ratios to take into account the presence of savings banks. Id., at 285.
9
We are in complete agreement with the District Court that Phillipsburg National Bank and Philadelphia National Bank do not require a court to blind itself to economic realities. Similarly, we have no doubt on this record that savings banks and commercial banks in Connecticut are 'fierce competitors,' see 362 F.Supp., at 280, to the degree that they offer identical or essentially fungible services. The District Court was also correct that 'complete interindustry competitive overlap need not be shown.' Continental Can Co., supra, 378 U.S., at 457, 84 S.Ct., at 1747. As the Court declared in Continental Can, 'we must recognize meaningful competition where it is found to exist.' 378 U.S., at 449, 84 S.Ct., at 1743. Nonetheless, we hold for several reasons that the District Court was mistaken in including both savings and commercial banks in the same product market for purposes of this case.
10
Two of the District Court's reasons may be dealt with briefly. The court erred as a matter of law in concluding that the absence of a 'line of commerce' phrase in the Bank Merger Act of 1966 alters traditional standards under § 7 of the Clayton Act for defining the relevant product market in a bank merger case. United States v. Third National Bank, 390 U.S. 171, 182 n. 15, 88 S.Ct. 882, 889, 19 L.Ed.2d 1015 (1968). See Phillipsburg National Bank, 399 U.S., at 359—362, 90 S.Ct., at 2041. Moreover, the absence of significant competition from savings banks in Philadelphia National Bank, supra, and Phillipsburg National Bank, supra, is not determinative. The commercial banks in both of those cases faced significant competition from savings and loan associations and other credit institutions. See, e.g., 374 U.S., at 357 n. 34, 83 S.Ct., at 1738; United States v. Phillipsburg National Bank, 306 F.Supp. 645, 649 (NJ 1969). The Court in both instances nevertheless viewed the business of commercial banking as sufficiently distinct from other credit institutions to merit treatment as a separate 'line of commerce' under § 7. Analogous distinctions, although perhaps not as sharply defined, are controlling here.
11
We believe that the District Court overestimated the degree of competitive overlap that in fact exists between savings banks and commercial banks in Connecticut. To be sure, there is a large measure of similarity between the services marketed by the two categories of banks.3 In our view, however, the overlap is not sufficient at this stage in the development of savings banks in Connecticut to treat them together with commercial banks in the instant case. Despite the strides that savings banks in that State have made toward parity with commercial banks, the latter continue to be able to provide a cluster of services that the former cannot, particulatly with regard to commercial customers, and this Court has repeatedly held services that the former cannot, particularly provided by commercial banks that sets them apart for purposes of § 7.
12
The Court declared in Phillipsburg National Bank, supra, 399 U.S. at 360, 90 S.Ct., at 2041:
13
'Philadelphia Bank emphasized that it is the cluster of products and services that full-service banks offer that as a matter of trade reality makes commercial banking a distinct line of commerce. Commercial banks are the only financial institutions in which a wide variety of financial products and services—some unique to commercial banking and others not are gathered together in one place. The clustering of financial products and services in banks facilitates convenient access to them for all banking customers. . . .' (Emphasis in original.)
14
From the vantage point of at least one significant consumer of bank services—the commercial enterprise—commercial banks in Connecticut offer a 'cluster of products and services' that their savings bank counterparts do not. The facts of this case indicate that the differences in what commercial banks in the State can offer to that important category of bank customers are sufficient to establish commercial banking as a distinct line of commerce.
15
The District Court concluded that 'meaningful competition' existed between commercial and savings banks for commercial loans. 362 F.Supp., at 280. This conclusion is not supported by the record. Commercial loans, generally speaking, are relatively short-term loans to business enterprises of all sizes, usually for purposes of inventory or working capital. At the end of 1971 commercial banks in Connecticut had outstanding $1.03 billion in commercial loans.4 Savings banks, by comparison, had $26 million in such loans at that time.5 The disparity in these figures demonstrates that the commercial bankloan business in Connecticut is controlled almost exclusively by commercial banks. Moreover, commercial banks in the State offer credit-card plans, loans for securities purchases, trust services, investment services, computer and account services, and letters of credit. Savings banks do not.
16
It is true that under state law savings banks soon will be able to provide some checking account services. Conn.Pub.Act No. 73—195 (May 14, 1973).6 This will increase the degree of direct competition between savings banks and commercial banks, because demand deposits have traditionally been a unique attribute of the latter institutions. But even this new authority for savings banks will not allow them to serve commercial customers, who constitute a significant percentage of the clientele of commercial banks. The state statute empowering savings banks to offer demand deposits forbids those banks from marketing the service to anyone 'for the purpose of, or in connection with, the carrying on of any business, trade, occupation or profession.' Id., §§ 1(a), 5. Thus, under the new Act, savings banks will be restricted to offering personal checking accounts. Id., § 2.
17
We do not say, and Phillipsburg National Bank, supra, and Philadelphia National Bank, supra, do not say, that in a case involving a merger of commercial banks a court may never consider savings banks and commercial banks as operating in the same line of commerce, no matter how similar their services and economic behavior. At some stage in the development of savings banks it will be unrealistic to distinguish them from commercial banks for purposes of the Clayton Act. In Connecticut, that point may well be reached when and if savings banks become significant participants in the marketing of bank services to commercial enterprises. But, in adherence to the tests set forth in our earlier bank merger cases, which we are constrained to follow, we hold that such a point has not yet been reached. Accordingly, on remand the District Court should treat commercial banking as the relevant product market.
II
18
The District Court ruled that the relevant geographic market, or 'section of the country,' under § 7, is the State as a whole. 362 F.Supp., at 283. We think the District Court erred on this point for several reasons. If the State were the relevant geographic market, it would then be appropriate to analyze this not as a potential-competition case but as a direct-competition case involving the consolidation of two firms holding an aggregate market share of approximately 10%. Even if this figure is 'shaded' by a factor of 10% to account for the influence of banks in New York see id., at 260; Philadelphia National Bank, 374 U.S., at 364 n. 40, 83 S.Ct., at 1742, the consolidation of CNB and FNH would create a firm holding a 9% share of statewide commercial-bank deposits. Mergers between direct competitors producting smaller shares of less concentrated markets have been held illegal under § 7. E.g., United States v. Von's Grocery Co., 384 U.S. 270, 86 S.Ct. 1478, 16 L.Ed.2d 555 (1966).
19
The State cannot be the relevant geographic market, however, because CNB and FNH are not direct competitors on that basis (or for that matter on any other basis pertinent to this appeal). The two banks do not operate statewide, nor do their customers as a general rule utilize commercial banks on that basis. The offices of the two banks are restricted to adjoining sections of the southwest segment of Connecticut. Although the two banks presumably market a small percentage of their loans to large customers on a statewide or broader basis, it is undoubtedly true that almost all of their business originates locally. For example, 'about 88% of CNB's total deposit business derive(s) from the towns in which CNB had offices.' 362 F.Supp., at 250. As the District Court noted in a finding that is inconsistent with its conclusion on the appropriate section of the country, '(c)ommon sense . . . would indicate that the relevant market areas of CNB and FNH generally coincide with where each has established branch offices.' Ibid.
20
As indicated by our opinion today in Marine Bancorporation, 418 U.S. 602, 94 S.Ct. 2856, 41 L.Ed.2d 978, the relevant geographic market of the acquired bank is the localized area in which that bank is in significant, direct competition with other banks, albeit not the acquiring bank. This area must be defined in accordance with this Court's precedents in prior bank-merger cases. Yet the District Court's conclusion on this issue conflicts with Philadelphia National Bank, supra. The Court emphasized in that case:
21
'In banking, as in most service industries, convenience of location is essential to effective competition. Individuals and corporations typically confer the bulk of their patronage on banks in their local community; they find it impractical to conduct their banking business at a distance. . . . The factor of inconvenience localizes banking competition as effectively as high transportation costs in other industries.' 374 U.S., at 358, 83 S.Ct., at 1738 (footnote and citations omitted).
22
In recognition of the local character of the great majority of commercial bank activities, Philadelphia National Bank indicated that the relevant geographic market in bank-merger cases must be drawn narrowly to encompass the area where 'the effect of the merger on competition will be direct and immediate.' Id., at 357, 83 S.Ct., at 1738. Moreover, the geographic market must be delineated in a way that takes into account the local nature of the demand for most bank services. It 'must be charted by careful selection of the market area in which the seller operates, and to which the purchaser can practicably turn for (alternatives) . . ..' Id., at 359, 83 S.Ct., at 1739 (citations, internal quotations, and italics omitted). Because the economic scale of separate categories of consumers of bank services will vary, a workable compromise must be struck 'to delineate the area in which bank customers that are neither very large nor very small find it practical to do their banking business . . ..' Id., at 361, 83 S.Ct., at 1740.7
23
On remand the District Court must determine pursuant to the localized approach denoted above the geographic market in which CNB operates and to which the bulk of its customers may turn for alternative commercial bank services. It must do the same with regard to FNH, for this case presents the unusual fact situation of a consolidation of two banks, each with a history of de novo geographic expansion, rather than the acquisition of a geographically stable bank as in Marine Bancorporation, 418 U.S. 602, 94 S.Ct. 2856, 41 L.Ed.2d 978. The task is important, because the definition of the respective geographic markets determines the number of alternative avenues of entry theoretically open to CNB in piercing FNH's area of significant competitive influence and vice versa.
24
We are not unaware of the difficulty of the assignment confronting the District Court. An element of 'fuzziness would seem inherent in any attempt to delineate the relevant geographical market.' Philadelphia National Bank, supra, at 360 n. 37, 83 S.Ct., at 1740. The task is made especially taxing here by the fragmented character of the distribution of the banking offices of the two banks, especially CNB. Apparently because the Connecticut branching statute has created a checkerboard of 'open' and 'closed' towns, see n. 1, supra, CNB and FNH have not expanded in the past in a manner that produced readily definable, completely covered areas around the towns where they have their home offices. There is, for example, a gap consisting of four towns in the extreme southwest section of Connecticut in which CNB has no offices, although it has established offices in almost all of the surrounding towns in that part of the State. That gap presumably will have to be excluded from consideration on remand.
25
The difficulty of the responsibility imposed on the District Court with regard to defining the geographic markets of the two banks is ameliorated by several considerations. First, the burden of producing evidence on this subject is on the Government. The Government repeatedly notes that it is not required to define geographic markets by 'metes and bounds,' citing United States v. Pabst Brewing Co., 384 U.S. 546, 549, 86 S.Ct. 1665, 1667, 16 L.Ed.2d 765 (1966). To the extent that this means that such markets need not—indeed cannot—be defined with scientific precision, it is accurate. But it is nevertheless the Government's role to come forward with evidence delineating the rough approximation of localized banking markets mandated by Philadelphia National Bank, supra, and Phillipsburg National Bank, supra.
26
Second, we affirm that portion of the District Court's judgment holding that the Government cannot rely, without more, on Standard Metropolitan Statistical Areas (SMSA's) as defining the geographic markets of the two banks. See 362 F.Supp., at 249—250, 281—282. SMSA's are prepared by the Office of Management and Budget to determine areas of economic and social integration, principally on the basis of the commuting patterns of residents.8 They are not defined in terms of banking criteria, and they were not developed as a tool for analyzing banking markets. Id., at 249. Exclusive reliance on SMSA's here may lead to inaccuracies. For example, as the District Court noted, only 57% of CNB's deposits originate from the Bridgeport SMSA. Id., at 250, 282. This is because CNB's offices extend to several areas outside the Bridgeport SMSA. The Bridgeport SMSA is relevant, if at all, only to the CNB offices located in Bridgeport, and even then it is at best a crude indicator. The same is true of the New Haven SMSA and the FNH offices located in the town of New Haven. In sum, although the Bridgeport and New Haven SMSA's may be helpful in defining the general metropolitan characteristics of southwest Connecticut, they are not sufficiently refined in terms of realistic commercial banking markets to satisfy the Government's burden. The Government must demonstrate more accurately than is possible solely with SMSA's the localized banking markets, or areas of significant competitive influence, surrounding the sites where CNB and FNH maintain their banking offices.9
27
Third, the District Court may not, as the banks would have it, rely solely on towns as the relevant geographic markets. The towns served by the two banks are highly significant geographic units, because state law restraints on de novo branching are defined in terms of towns. See n. 1, supra. But not all towns are closed to de novo branching by one or the other bank, and it seems fair to assume that the area of significant competitive influence of some bank offices may extend beyond town boundaries.
28
On remand, the District Court must delineate the localized banking markets surrounding the sites where CNB and FNH maintain their bank offices. It must then evaluate the economically and legally feasible alternative methods of entry, if any, into those areas available to one bank or the other. In so doing, it should keep in mind the considerations outlined today in Marine Bancorporation, 418 U.S. 602, 94 S.Ct. 2856, 41 L.Ed.2d 978.10
III
29
In conformity with its approach in Marine Bancorporation, the Government argues that the State as a whole, although not a banking market, is nonetheless a 'section of the country' within the meaning of § 7 of the Clayton Act. The Government repeats the concern expressed in Marine Bancorporation, see 418 U.S., at 620, 94 S.Ct., at 2869, that a statewide linkage of oligopolies 'may' arise and that large banks across the state 'may engage' in more standardized behavior as a result.11 Moreover, the Government contends that a statewide approach is appropriate because the challenged consolidation would eliminate one of eight banks in Connecticut with the potential for statewide operation. 'Thus the effect of a merger which eliminates even one of these banks will be felt statewide, for it will have an impact in every local market in the state where that bank does not currently operate but which it might otherwise enter.'12
30
We reject the Government's statewide approach here, as we did in Marine Bancorporation, supra, at 620, 94 S.Ct., at 2869. The Government's argument that 'a geographic area need not be a banking market to be a section of the country . . .'13 is foreclosed by the precedents. Id., at 620—622. 94 S.Ct., at 2869 2870. Its theory of linked oligopolies appears to be as devoid of evidentiary support here as it was in Marine Bancorporation. Finally, its concern for any area of the State in which CNB or FNH 'might' enter independently of the consolidation is too speculative to establish a case under the Clayton Act. In advancing the latter argument, the Government borders on espousing a per se rule against geographic market extension mergers by Connecticut commercial banks so long as any town in the State remains open to de novo branching. On remand the District Court will address itself to the geographic markets in which CNB and FNH presently operate.14
31
The judgment is vacated and the case is remanded for further consideration consistent with this opinion.
32
It is so ordered.
33
Judgment vacated and case remanded.
34
Mr. Justice WHITE, with whom Mr. Justice DOUGLAS, Mr. Justice BRENNAN, and Mr. Justice MARSHALL join, concurring in part and dissenting in part.
35
Although I agree with Part I of the majority opinion, as to the relevant line of commerce, I dissent from that part of the opinion dealing with the determination of a relevant geographic market.
36
The Court holds that 'the relevant geographic market of the acquired bank is the localized area in which that bank is in significant, direct competition with other banks, albeit not the acquiring bank,' relying on a statement to similar effect in United States v. Marine Bancorporation, Inc., 418 U.S. 602, 94 S.Ct. 2856, 41 L.Ed.2d 978. Accordingly, the Court rejects the proposition, which the appellee banks accepted below,* that the merger of FNH and CNB should be analyzed in terms of its effect on possible potential competition in areas not in or adjacent to the New Haven and Bridgeport markets, however those markets are to be defined.
37
There is certainly nothing in this Court's past cases on mergers under Clayton § 7 which requires this result. Even if Bridgeport and New Haven are relevant geographic markets, there can be more than one relevant geographic market in which to test the possible effects of a merger. Section 7 of the Clayton Act speaks to lessening competition 'in any section of the country' (emphasis added), and as the majority acknowledges in Marine Bancorporation, 418 U.S., at 621 n. 20, 94 S.Ct., at 2869, in United States v. Pabst Brewing Co., 384 U.S. 546, 86 S.Ct. 1665, 16 L.Ed.2d 765 (1966), the Court 'held that the Government had established three relevant markets in which the acquired firm actually marketed its products—a single State, a multi-state area, and the Nation as a whole.' To be sure, the selection of any relevant geographic market in a banking case must be chosen in terms of the needs of the customers and the area in which sellers operate, United States v. Philadelphia National Bank, 374 U.S. 321, 357—359, 83 S.Ct. 1715, 1737, 10 L.Ed.2d 915 (1963), but this may result in several possible markets, especially in a potential-competition case where a merger might affect the economic behavior of existing firms in various markets.
38
As I read the majority opinion, if one assumed that FNH and CNB were the two largest banks in Connecticut, and, although located in southwest Connecticut, both had the capability and interest to enter a concentrated banking market in northeast Connecticut, it would be improper for the Government to oppose their merger, since neither bank had as yet entered the northeast Connecticut banking market. The majority describes the possibility of such dual entry as 'too speculative.' Ante, at 673. What is a relevant geographic market is an issue entirely distinct from who is a potential competitor. It is obvious, for example, that while New Haven and/or its environs is a relevant market of banking competition, it may nonetheless be true that CNB may not prove to be a potential competitor with respect to that market. It, therefore, follows that whether the banking market in northeast Connecticut is a relevant banking market, is a question entirely separate from whether FNH and/or CNB should be considered potential competitors in that market, and whether the elimination of one of those competitors lessens either the possibility of deconcentration in that market or, under the 'wings theory,' affects present competition in that market. Since the majority professes to leave issues of potential competition to the District Court on remand, it should not preclude a finding that this merger will affect banking competition in areas of the State other than Bridgport of New Haven. The possibility of finding many banking markets in Connecticut is an entirely separate matter from finding one banking market in the State under a theory of statewide linkage of oligopolies. The latter assumes that a section of the Country need not be a banking market; the former does not.
39
I agree that the case should be remanded. As I understand the task of the District Court, once it has decided what the relevant grographic markets are, the case is to be analyzed in terms of the 'wings theory' of potential competition enunicated in United States v. Falstaff Brewing Corp., 410 U.S. 526, 93 S.Ct. 1096, 35 L.Ed.2d 475 (1973), and the deconcentration theory now accepted by this Court in Marine Bancorporation. As to these matters, I adhere to my views as stated in Marine Bancorporation.
1
Under state law in Connecticut, commercial banks may not branch into a town cantaining the main office of another bank (the so-called 'home office protection' provision). Conn.Gen.Stat.Rev. § 36—59 (1972). Towns that contain the main office of a bank are referred to as 'closed' towns. The remaining towns are 'open towns.' The term 'town in Connecticut refers to a political subdivision of the State, somewhat analogous to counties in other States. It does not denote a metropolitan area, although some cities are more or less congruent with the towns in which they are located.
There are 169 towns in Connecticut. The effect of the 'home office protection' provision is to create a checkerboard of 'open' and 'closed' towns reflecting the location of the main offices of the banks operating in the State. State law forbids any bank that does not have its headquarters in Connecticut from operating banking offices within the State. Conn.Gen.Stat.Rev. § 36—59(4).
2
See 362 F.Supp., at 281. The relevant provision of the Bank Merger Act of 1966, 80 Stat. 8, 12 U.S.C. § 1828(c)(5)(B), proscribes any bank consolidation:
'whose effect in any section of the country may be substantially to lessen competition, or to tend to create a monopoly, or which in any other manner would be in restraint of trade, unless . . . the anti-competitive effects of the proposed transaction are clearly outweighed in the public interest by the probable effect of the transaction in meeting the convenience and needs of the community to be served.'
Section 7 of the Clayton Act, 38 Stat. 731, as amended, 64 Stat. 1125, 15 U.S.C. § 18, by comparison provides in pertinent part:
'No corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no coporation subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another corporation engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.'
3
As we have noted, the District Court identified some of the services offered by both savings and commercial banks, including real estate mortgages, personal loans, and time deposits. As the District Court put it in another context, it would be 'ostrich-like,' 362 F.Supp., at 254, to assume that the two types of banks are not in direct and vigorous competition with regard to the services they share or are not viewed by many bank customers as more or less fungible for purposes of those services. Cf. United States v. Phillipsburg National Bank, 399 U.S. 350, 360, 90 S.Ct. 2035, 2041, 26 L.Ed.2d 658 (1970). That savings and commercial banks are direct competitors in some submarkets, however, is not the end of the inquiry, as Phillipsburg makes clear. Ibid.
4
App. 1793.
5
Id., at 1795.
6
The pertinent provisions of Conn.Pub.Act No. 73—195 will take effect no later than December 31, 1975, although the enactment of certain federal legislation or other specified events not relevant here may trigger those provisions at an earlier date. See Id., § 7.
7
The Court's approach in Philadelphia National Bank to defining geographic markets for commercial banks was reaffirmed in Phillipsburg National Bank, 399 U.S., at 362—365, 90 S.Ct., at 2042—2044.
8
App. 1435—1437.
9
The federal bank regulatory agencies define a bank's service area as the geographic area from which the bank derives 75% of its deposits. See 362 F.Supp., at 250. The service-area concept may be considerably more useful in this case than SMSA's, although this is a matter we leave to the District Court on remand.
In Marine Bancorporation, supra, 418 U.S., at 619, 94 S.Ct., at 2869, we affirmed the District Court's determination of the Spokane metropolitan area as the relevant geographic market. That holding was not an affirmation of SMSA's as banking markets; SMSA's were not at issue in that case. The Spokane metropolitan area was defined as the relevant geographic market in Marine Bancorporation because it is an insulated banking market, is comparatively small by geographic standards in the Western States, contains all the banking offices of the target bank, and is the area from which that bank draws some 90% of its deposit accounts.
10
we note that it is not at all clear that the District Court's holdings as to potential competition were based on a statewide appraisal of the consolidation at issue, despite its conclusion that the State was the relevant section of the country. For example, the court's findings with regard to 'toehold' acquisitions refer to SMSA's towns, and service areas, 362 F.Supp., at 265, and its conclusions under the heading of 'potential competition' speak of service area, service market, and towns. Id., at 286—287. Because the District Court did not clarify what local area, if any, it considered controlling for purposes of the potential-competition doctrine, we are unable to hold that its error in denoting the State as the relevant section of the country, see id., at 283, may be ignored.
11
Brief for United States 34.
12
Id., at 33 (emphasis added).
13
Id., at 31.
14
The District Court also concluded that assuming, arguendo, that the consolidation violated the Clayton Act, it nonetheless met the standards of the 'convenience and needs' test of the Bank Merger Act of 1966, 12 U.S.C. § 1828(c)(5)(B). 362 F.Supp., at 288. Its findings on the 'convenience and needs' defense are not controlling, however, if it erred in the standards applied in judging the status of the consolidation under the Clayton Act. United States v. Third National Bank, 390 U.S. 171, 183—184, 88 S.Ct. 882, 890, 19 L.Ed.2d 1015 (1968). See also Phillipsburg National Bank, 374 U.S., at 369—370, 83 S.Ct., at 1745.
*
One of the principal witnesses presented by the appellee banks, Dr. Peck, analyzed the effect of this merger, and the removal of FNH as a potential competitor, along with CNB, on the various banking markets in the State.
| 78
|
418 U.S. 488
94 S.Ct. 2697
41 L.Ed.2d 897
Daniel T. TAYLOR, III, Petitioner,v.John P. HAYES, Judge, Jefferson Circuit Court, Criminal Branch, Second Division.
No. 73—473.
Argued March 18, 1974.
Decided June 26, 1974.
Syllabus
During a Kentucky murder trial in which petitioner was counsel for the accused, respondent trial judge informed petitioner on nine different occasions that he was in contempt of court. At the conclusion of the trial, respondent, in the jury's presence, made a statement concerning petitioner's trial conduct, and, refusing petitioner's request to respond, imposed consecutive sentences on nine counts of contempt aggregating almost four and one-half years' imprisonment, including sentences of one year's imprisonment on each of two counts. Subsequently, respondent amended the judgment to eliminate the first contempt charge and to reduce each of the latter sentences to six months' imprisonment, but was silent on whether all of the sentences were to run concurrently or consecutively. The Kentucky Court of Appeals affirmed, but ruled that, because the amended judgment did not direct that the sentences be served consecutively, they had to be served concurrently, thereby making the penalty actually imposed six months in jail and rendering constitutionally permissible the conviction and sentence without a jury trial. Held:
1. Since no more than a six-month sentence was actually imposed, the eight contempts, whether considered singly or collectively, constituted petty offenses and hence trial by jury was not required. It is not improper to permit the State, as in this instance, after conviction, to reduce a sentence to six months or less rather than retry the contempt with a jury, since 'criminal contempt is not a crime of the sort that requires the right to jury trial regardless of the penalty involved.' Bloom v. Illinois, 391 U.S. 194, 211, 88 S.Ct. 1477, 1487, 20 L.Ed.2d 522. Pp. 495—496.
2. Respondent's conduct, in proceeding summarily after trial to punish petitioner for alleged contempt committed during the trial without giving him an opportunity to be heard in defense or mitigation before he was finally adjudged guilty and sentence was imposed, does not square with the Due Process Clause of the Fourteenth Amendment. Groppi v. Leslie, 404 U.S. 496, 92 S.Ct. 582, 30 L.Ed.2d 632. Reasonable notice of the specific charges and opportunity to be heard are essential in view of the heightened potential for abuse posed by the contempt power. Pp. 496—500.
3. Because it appears from the record that 'marked personal feelings were present on both sides' and that marks of 'unseemly conduct (had) left personal stings,' Mayberry v. Pennsylvania, 400 U.S. 455, 464, 91 S.Ct. 499, 504, 27 L.Ed.2d 532, another judge should have been substituted for respondent for the purpose of finally disposing of the contempt charges. Pp. 501—503.
Ky., 494 S.W.2d 737, reversed and remanded.
Robert Allen Sedler, Lexington, Ky., for petitioner.
Henry A. Triplett, Louisville, Ky., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
1
The question in this case concerns the validity of a criminal contempt judgment entered against petitioner by reason of certain events occurring in the course of a criminal trial in the courts of the Commonwealth of Kentucky. Petitioner was retained counsel for Narvel Tinsley, a Negro, who along with his brother Michael was charged with the murders of two police officers. According to the Kentucky Court of Appeals, the 'murders created some considerable sensation in Louisville . . . and . . . newspaper coverage was overly abundant.' 494 S.W.2d 737, 739 (1973). Trial before respondent trial judge began on October 18, 1971, and was completed on October 29.
2
On nine different occasions during this turbulent trial, respondent, out of the hearing of the jury and most often in chambers, informed petitioner that he was in contempt of court. The first charge was immediately reduced to a warning and no sentence was imposed at the time of charge in that or any other instance. Petitioner was permitted to respond to most, but not all, of the charges.1
3
At the conclusion of the trial on October 29 and after a guilty verdict had been returned, respondent, in the presence of the jury, made a statement concerning petitioner's trial conduct. Refusing petitioner's request to respond and declaring that 'I have you' on nine counts, respondent proceeded to impose a jail term on each count totaling almost four and one-half years: 30 days on the first count, 60 days on the second, 90 days on the third, six months on counts four, five, six, and seven, and one year each on counts eight and nine, 'all to run consecutive.'2 A few days later, petitioner was also barred from practicing law by respondent in his division of the Criminal Branch of the Jefferson Circuit Court.
4
While petitioner's appeal was pending, on March 2, 1972, respondent entered a corrected judgment containing a 'certificate' which described the nine charges of contempt3 but eliminated the first charge as having been reduced to a warning and reduced the sentence on each of the last two counts to six months in jail. The corrected judgment was silent as to whether the sentences were to run concurrently or consecutively.
5
The Kentucky Court of Appeals affirmed, holding that petitioner was guilty of each and every contempt charged. In its view, petitioner's actions 'were deliberate, delaying, or planned disruptive tactics which did in fact create such an atmosphere in the court that he, if permitted to continue, would have appeared to be the star performer in the center ring of a three-ring circus.' 494 S.W.2d, at 740. Petitioner had committed 'innumerable acts . . . which clearly reflected his contempt for the court as well as the judicial system of this Commonwealth . . .' and had been 'overbearing, contemptuous, and obnoxiously persistent in his questions and objections . . ..' Id., at 741. The Court of Appeals also concluded that petitioner had not launched any 'personal attack' on the trial judge and that the judge had neither conducted himself as an "activist seeking combat" nor had become so personally embroiled that he was disqualified to sit in judgment on the charges of contempt, although his remarks prior to entering judgment of contempt at the conclusion of the trial were 'inappropriate.' Id., at 744—745.
6
The Court of Appeals further ruled that because the amended judgment did not 'direct that the sentences, as amended, be served consecutively . . . they must be served concurrently.' Id., at 746. Thus, '(t)he penalty actually imposed on Daniel Taylor (was) six months in jail,' and his conviction and sentence without a jury trial were deemed constitutionally permissible. Id., at 747. The Kentucky Court of Appeals ruled, however, that it had exclusive authority to discipline or disbar attorneys and that, in any event, the rule in Kentucky since 1917 had been that suspension from practice was not a permissible punishment for criminal contempt. The order prohibiting petitioner from practicing in the Jefferson Circuit Court, Criminal Branch, Second Division, was therefore reversed. We granted certiorari limited to specified issues, 414 U.S. 1063, 94 S.Ct. 568, 38 L.Ed.2d 468 (1973).
7
* Petitioner contends that any charge of contempt of court, without exception, must be tried to a jury. Quite to the contrary, however, our cases hold that petty contempt like other petty criminal offenses may be tried without a jury and that contempt of court is a petty offense when the penalty actually imposed does not exceed six months or a longer penalty has not been expressly authorized by statute. Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966); Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968); Dyke v. Taylor Implement Mfg. Co., Inc., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968); Frank v. United States, 395 U.S. 147, 89 S.Ct. 1503, 23 L.Ed.2d 162 (1969); Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970). Hence, although petitioner was ultimately found guilty and sentenced separately on eight counts of contempt, the sentences were to run concurrently and were, as the Kentucky Court of Appeals held, equivalent to a single sentence of six months. Cf. Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912. The original sentences imposed on the separate counts were to run consecutively and totaled almost four and one-half years, with two individual counts each carrying a year's sentence. But the trial court itself entered an amended judgment which was understood by the Kentucky Court of Appeals to impose no more than a sixmonth sentence. The eight contempts, whether considered singly or collectively, thus constituted petty offenses, and trial by jury was not required.
8
It is argued that a State should not be permitted, after conviction, to reduce the sentence to less than six months and thereby obviate a jury trial. The thrust of our decisions, however, is to the contrary: in the absence of legislative authorization of serious penalties for contempt, a State may choose to try any contempt without a jury if it determines not to impose a sentence longer than six months. We discern no material difference between this choice and permitting the State, after conviction, to reduce a sentence to six months or less rather than to retry the contempt with a jury. Cf. Cheff v. Schnackenberg, supra, 384 U.S., at 380, 86 S.Ct. at 1526. In either case, the State itself has determined that the contempt is not so serious as to warrant more than a six-month sentence. We remain firmly committed to the proposition that 'criminal contempt is not a crime of the sort that requires the right to jury trial regardless of the penalty involved.' Bloom v. Illinois, supra, 391 U.S., at 211, 88 S.Ct. at 1487; cf. Argersinger v. Hamlin, 407 U.S. 25, 30, 92 S.Ct. 2006, 2009, 32 L.Ed.2d 530 (1972).
II
9
We are more persuaded by petitioner's contention that he was entitled to more of a hearing and notice than he received prior to final conviction and sentence. In each instance during the trial when respondent considered petitioner to be in contempt, petitioner was informed of that fact and, in most instances, had opportunity to respond to the charge at that time. It is quite true, as the Kentucky Court of Appeals held, that '(t)he contempt citations and the sentences coming at the end of the trial were not and could not have been a surprise to Taylor, because upon each occasion and immediately following the charged act of contempt the court informed Taylor that he was at that time in contempt of court.' 494 S.W.2d, at 741—742. But no sentence was imposed during the trial, and it does not appear to us that any final adjudication of contempt was entered until after the verdict was returned. It was then that the court proceeded to describe and characterize petitioner's various acts during trial as contemptuous, to find him guilty of nine acts of contempt, and to sentence him immediately for each of those acts.
10
It is also plain from the record that when petitioner sought to respond to what the Kentucky Court of Appeals referred to as the trial court's 'declaration of a charge against Taylor based upon the judge's observations' during trial,4 respondent informed him that '(y)ou're not responding to me on anything' and even indicated that petitioner might be gagged if he insisted on defending himself.5 The trial court then proceeded without further formality to impose consecutive sentences totaling almost four and one-half years in the county jail and to bar petitioner forever from practicing before the court in which the case at issue had been tried.
11
This procedure does not square with the Due Process Clause of the Fourteenth Amendment. We are not concerned here with the trial judge's power, for the purpose of maintaining order in the courtroom, to punish summarily and without notice or hearing contemptuous conduct committed in his presence and observed by him. Ex parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405 (1888). The usual justification of necessity, see Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99 L.Ed. 11 (1954), is not nearly so cogent when final adjudication and sentence are postponed until after trial.6 Our decisions establish that summary punishment need not always be imposed during trial if its is to be permitted at all. In proper circumstances, particularly where the offender is a lawyer representing a client on trial, it may be postponed until the conclusion of the proceedings. Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717 (1952); cf. Mayberry v. Pennsylvania, 400 U.S. 455, 463, 91 S.Ct. 499, 504, 27 L.Ed.2d 532 (1971). But Sacher noted that '(s) ummary punishment always, and rightly, is regarded with disfavor . . ..' 343 U.S., at 8, 72 S.Ct. at 454. '(W)e have stated time and again that reasonable notice of a charge and an opportunity to be heard in defense before punishment is imposed are 'basic in our system of jurisprudence." Groppi v. Leslie, 404 U.S. 496, 502, 92 S.Ct. 582, 586, 30 L.Ed.2d 632 (1972), quoting In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682 (1948). Even where summary punishment for contempt is imposed during trial, 'the contemnor has normally been given an opportunity to speak in his own behalf in the nature of a right of allocution.' Groppi v. Leslie, supra, 404 U.S., at 504, 92 S.Ct. at 587 (and cases cited therein).7
12
On the other hand, where conviction and punishment are delayed, 'it is much more difficult to argue that action without notice or hearing of any kind is necessary to preserve order and enable (the court) to proceed with its business.' Ibid. As we noted in Groppi, the contemnors in the Sacher case were 'given an opportunity to speak' and the 'trial judge would, no doubt(,) have modified his action had their statements proved persuasive.' Id., at 506, and n. 11, 92 S.Ct., at 588. Groppi counsels that before an attorney is finally adjudicated in contempt and sentenced after trial for conduct during trial, he should have reasonable notice of the specific charges and opportunity to be heard in his own behalf. This is not to say, however, that a full-scale trial is appropriate. Usually, the events have occurred before the judge's own eyes, and a reporter's transcript is available. But the contemnor might at least urge, for example, that the behavior at issue was not contempt but the acceptable conduct of an attorney representing his client; or, he might present matters in mitigation or otherwise attempt to make amends with the court. Cf. Groppi v. Leslie, supra, at 503, 506 n. 11, 92 S.Ct., at 586, 588.8
13
These procedures are essential in view of the heightened potential for abuse posed by the contempt power. Bloom v. Illinois, 391 U.S., at 202, 88 S.Ct., at 1482; Sacher v. United States, 343 U.S., at 12, 72 S.Ct., at 456. The provision of fundamental due process protections for contemnors accords with our historic notions of elementary fairness. While we have no desire 'to imprison the discretion of judges within rigid mechanical rules,' Offutt v. United States, 348 U.S., at 15, 75 S.Ct., at 14, we remain unpersuaded that 'the additional time and expense possible involved . . . will seriously handicap the effective functioning of the courts.' Bloom b. Illinois, supra, 391 U.S., at 208—209, 88 S.Ct. at 1486. Due process cannot be measured in minutes and hours or dollars and cents. For the accused contemnor facing a jail sentence, his 'liberty is valuable and must be seen as within the protection of the Fourteenth Amendment. Its termination calls for some orderly process, however informal.' Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 2601, 33 L.Ed.2d 484 (1972).
14
Because these minimum requirements of due process of law were not extended to petitioner in this case, the contempt judgment must be set aside.9
III
15
We are also convinced that if petitioner is to be tried again, he should not be tried by respondent. We agree with the Kentucky Court of Appeals that petitioner's conduct did not constitute the kind of personal attack on respondent that, regardless of his reaction or lack of it, he would be '(un) likely to maintain that calm detachment necessary for fair adjudication.' Mayberry v. Pennsylvania, 400 U.S. at 465, 91 S.Ct. at 505.
16
But contemptuous conduct, though short of personal attack, may still provoke a trial judge and so embroil him in controversy that he cannot 'hold the balance nice, clear, and true between the state and the accused . . ..' Tumey v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 444, 71 L.Ed. 749 (1927). In making this ultimate judgment, the inquiry must be not only whether there was actual bias on respondent's part, but also whether there was 'such a likelihood of bias or an appearance of bias that the judge was unable to hold the balance between vindicating the interests of the court and the interests of the accused.' Ungar v. Sarafite, 376 U.S. 575, 588, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964). 'Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties,' but due process of law requires no less. In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955).
17
With these considerations in mind, we have examined the record in this case, and it appears to us that respondent did become embroiled in a running controversy with petitioner. Moreover, as the trial progressed, there was a mounting display of an unfavorable personal attitude toward petitioner, his ability, and his motives, sufficiently so that the contempt issue should have been finally adjudicated by another judge.
18
Early in the trial respondent cautioned petitioner against 'putting on a show' and added that 'if you give him an inch, he'll take a mile. I might as well sit on him now.' App. 31, 40. On another occasion when petitioner asserted that his purpose was to defend his case, respondent replied, 'I'm not sure.' Id., at 61. When petitioner remarked that he had five months wrapped up in the case, respondent retorted that '(b)efore it's over, you might have a lot more than that.' Id., at 98. On the other hand, petitioner complained of respondent's 'overbearing contentiousness in regard to me, both by phrase and by its utterances,' and asserted that the court was prejudicing the trial of his case. Id., at 60. Respondent was likewise said to be 'using (the) brute power of your office' in saying that petitioner was damaging his client. Id., at 61. On another occasion, respondent understood petitioner to be asserting that he, respondent, had rigged the jury. Id., at 85—86.
19
That respondent had reacted strongly to petitioner's conduct throughout the 10-day trial clearly emerged in the statement which he made prior to sentencing petitioner and which the Court of Appeals characterized as 'inappropriate.' There he said petitioner had put on 'the worst display' he had seen in many years at the bar—'(a)s far as a lawyer is concerned, you're not.' Id., at 28. Furthermore, respondent denied petitioner the opportunity to make any statement at that time, threatened to gag him and forthwith sentenced him to almost four and one-half years in jail, not to mention later disbarring him from further practice in his court. He also refused to grant him bail pending appeal. We assume for the purposes of this case that each of the charged acts was contemptuous; nevertheless, a sentence of this magnitude reflects the extent to which the respondent became personally involved. Cf. Offutt v. United States, 348 U.S., at 17, 75 S.Ct., at 15.
20
From our own reading of the record, we have concluded that 'marked personal feelings were present on both sides' and that the marks of 'unseemly conduct (had) left personal stings,' Mayberry v. Pennsylvania, 400 U.S., at 464, 91 S.Ct., at 504. A fellow judge should have been substituted for the purpose of finally disposing of the charges of contempt made by respondent against petitioner. Respondent relies on Ungar v. Sarafite, supra, but we were impressed there with the fact that the judge 'did not purport to proceed summarily during or at the conclusion of the trial, but gave notice and afforded an opportunity for a hearing which was conducted dispassionately and with a decorum befitting a judicial proceeding.' 376 U.S., at 588, 84 S.Ct., at 849.10
21
Nothing we have said here should be construed to condone the type of conduct described in the opinion of the Kentucky Court of Appeals and found by that court to have been engaged in by petitioner. Behavior of this nature has no place in the courtroom which, in a free society, is a forum for the courteous and reasoned pursuit of truth and justice.
22
The judgment of the Kentucky Court of Appeals is reversed and the case is remanded to that court for further proceedings not inconsistent with this opinion.
23
So ordered.
24
Judgment reversed and case remanded.
25
Mr. Justice DOUGLAS joins Parts II and III of the Court's opinion.
26
Mr. Justice MARSHALL, dissenting in part.
27
I join Parts II and III of the opinion of the Court, but I cannot join the holding in Part I that petitioner was not entitled to a jury trial. Petitioner was summarily convicted of contempt and sentenced to almost four and one-half years in prison. In my view, this sentence marked the contempt charges against petitioner as 'serious' rather than 'petty' and called into play petitioner's Sixth Amendment right to a jury trial.
28
The Court, however, relies on the fact that the trial judge subsequently realized his error and reduced the sentence to six months. The Court characterizes this as a determination by the State that 'the contempt is not so serious as to warrant more than a six-month sentence.' Ante, at 496. In my view, the trial judge's reduction of petitioner's sentence was a transparent effort to circumvent this Court's Sixth Amendment decisions and to save his summary conviction of petitioner without the necessity of airing the charges before an impartial jury. It is hardly coincidence that petitioner's sentence was reduced to the maximum that our decisions would permit.
29
Today's decision represents an extraordinarily rigid and wooden application of the six-month rule that the Court has fashioned to determine when the Sixth Amendment right is applicable. In permitting this obvious device to succeed, I think that the Court changes the nature of the six-month rule from a reasonable effort to distinguish between 'serious' and 'petty' contempts into an arbitrary barrier behind which judges who wish to protect their summary contempt convictions without exposing their charges to the harsh light of a jury may safely hide. The very fact that such a substantial contempt sentence was imposed, and then reduced to the six-month maximum, should be a warning to us that the fairness of the process which petitioner has received is suspect, and that the contempt charges involved here especially require the scrutiny of a jury trial. Statements in the plurality opinion in Cheff v. Schnackenberg, 384 U.S. 373, 380, 86 S.Ct. 1523, 1526, 16 L.Ed.2d 629 (1966), to the contrary notwithstanding, I do not believe that petitioner could be deprived of his Sixth Amendment right to jury trial, once it attached through the imposition of a substantial sentence, by the subsequent action of the trial court or an appellate court in reducing the sentence.
1
When for the sixth time petitioner was informed that he was in contempt, he sought to reply and was informed he could do so at the next recess. Nothing more appears in the record with respect to this episode. On the seventh occasion, petitioner undertook to respond but respondent left the chambers, and any further discussion of this charge was apparently ordered excluded from the record by respondent. Petitioner was denied the right to respond when he was informed of the eighth charge of contempt. As far as the record shows, there was neither a request to respond nor denial of response in connection with the ninth contempt charge.
2
The following is the complete transcript of the proceedings on October 29, 1971, with respect to the contempt charges against petitioner:
'The Court: Mr. Taylor, the Court has something to take up with you sir, at this time.
'Mr. Taylor: Well, I'll be right here, Judge.
'The Court: I've for two weeks sit here and listen to you. Now, you're going to listen to me. Stand right here, sir.
'For two weeks I've seen you put on the worst display I've ever seen an attorney in my two years of this court and 15 years of practicing law. You've quoted that you couldn't do it any other way. You know our court system is completely based upon, particularly criminal law, the Doctrine of Reasonable Doubt. That's exactly what it means, reason. It doesn't mean that its's based upon deceit; it doesn't mean that it's based upon trickery; it doesn't mean it's based upon planned confusion.
'Sometimes I wonder really what your motive is, if you're really interested in the justice of your client, or if you have some ulterior motive, if you're interested in Dan Taylor or Narvel Tinsley.
'It's a shame that this court has to do something that the Bar Association of this State should have done a long time ago.
'As far as a lawyer is concerned, you're not. I want the jury to hear this; I want the law students of this community to hear this, that you're not the rule, you're the exception to the rule.—
'Mr. Taylor: (Interrupting) Thank you.
'The Court: I want them to understand that your actions should not be their actions because this is not the way that a court is conducted. This is not the way an officer of a court should conduct itself.
'Mr. Taylor: I would respond to you, sir—
'The Court: (Interrupting) You're not responding to me on anything.
'Mr. Taylor: (Interrupting) Oh yes, I will.
'The Court: Yes, you're not, either.
'Mr. Taylor: Yes, I will.
'The Court: The sentence is on Count One—
'Mr. Taylor: (Interrupting) Unless you intend to gag me—
'The Court: (Interposing) I'll do that—
'Mr. Taylor: (Interposing) Mr. lawyers will respond to you—
'The Court: (Interposing) I'll do that, sir.
'Mr. Taylor: My lawyers will respond to you, sir.
'The Court: You be quiet, or you'll—there will be some more contempts—
'Mr. Taylor: (Interrupting) No, you heard what I said.
'The Court: I have you nine counts. First Count, 30 days in jail; Second Count, 60 days in jail; Third Count, 90 days in jail; Fourth Count, six months in jail; Fifth Count, six months in jail; Sixth Count, six months in jail; Seventh Count, six months in jail; Eighth Count, one year in jail; Ninth Count, one year in jail, all to run consecutive.
'Take him away.
'Mr. Taylor: We will answer you in court.
'The Court: I'd be glad to see you.' App. 28—29.
3
The nine charges of contempt were described in the certificate as follows:
'Contempt 1. Mr. Taylor, in questioning a prospective juror, on the second day of Voir Dire, repeatedly ignored the Court's order not to continue a certain line of questioning and to ask his questions of the jury as a whole, He evidenced utter disrespect for prospective jurors (T.E. 335—347).
'Contempt 2. The court sustained the Commonwealth objection on the use of a prior statement to cross examine Officer Hogan and not to go into the escape of Narvel Tinsley. Mr. Taylor repeatedly and completely ignored the court's ruling (T.E. 1071—1080).
'Contempt 3. During the playing of a tape recording of the voice of witness David White, Mr. Taylor wrote on a blackboard. After the playing of the tape it was ordered that the blackboard be removed from the court and Mr. Taylor was advised by the court that he could use it in his final summation to the jury. Mr. Taylor
was disrespectful to the court by his tone of voice and manner when he replied, 'I'll certainly keep that in mind, your Honor' (T.E. 1355).
'Contempt 4. During cross-examination of Narvel Tinsley, by Mr. Schroering, Mr. Taylor interrupted and moved for a recess, was overruled by the court, and then became most disrespectful to the court and refused to take his seat at counsel's table as ordered.
'Contempt 5. Complete and utter disrespect by Mr. Taylor in the questioning of Mr. Irvin Foley, and (sic) attorney and Legal Advisor to the Louisville Police Department when he continually disobeyed the court's ruling regarding a press conference which the court had ruled on unadmissible (sic). Mr. Taylor accused the court of disallowing admittance of black persons in the courtroom during the examination of this witness and made a statement in the presence of the jury inferring that only white police officers could enter the courtroom. It has always been the rule of this court that there will be no interruption during the examination of a witness or during closing arguments by people coming and going into and from the courtroom, which rule was known to Mr. Taylor (T.E. 1950—1955).
'Contempt 6. The witness Jesse Taylor, a Louisville Police Officer, read a statement by witness, David White. A Ruling was made by the court that the statement spoke for itself, had been introduced in evidence and could not be commented on by Officer Taylor, who merely took the statement. Mr. Taylor continued to disregard the court's order and ruling by continually reading parts of the statement out of context (T.E. 2008—2016).
'Contempt 7. Mr. Taylor in examining Mr. Norbert Brown, again referred to a press conference that the court had previously ordered him not to go into. He also waved his arms at the witness in a derogatory manner indicating the witness was not truthful and showing utter contempt of the court's ruling (T.E. 2030—2032).
'Contempt 8. The court directed Mr. Taylor to call his next witness. He called Lt. Garrett, Louisville Police Department. After the witness was sworn and took the stand, a deputy Sheriff advised the court that Mr. Taylor's aide was not searched, as everyone else
had been upon entering the courtroom. Mr. Taylor ordered the deputy to search his aide. The court ordered Mr. Taylor to begin his examination, which he refused to do until he was cited for contempt in the court's chamber (T.E. 2068—2069).
'Contempt 9. Mr. Taylor repeatedly asked the same question of witness Floyd Miller that the court had held improper. He was also disrespectful in his tone of voice when referring to a certain police officer as 'this nice police officer' (T.E. 2169—2172).' App. 24—26.
4
494 S.W.2d 737, 744 (1973).
5
App. 29.
6
'Punishment without issue or trial (is) so contrary to the usual and ordinarily indispensable hearing before judgment, constituting due process that the assumption that the court saw everything that went on in open court (is ( required to justify the exception; but the need for immediate penal vindication of the dignity of the court created it.' Cooke v. United States, 267 U.S. 517, 536, 45 S.Ct. 390, 395, 69 L.Ed. 767 (1925).
7
Groppi dealt with contempt of a state legislative body, and the contempt action was not taken until several days later without notice or opportunity for Groppi to be heard.
8
The American Bar Association Advisory Committee on the Judge's Function has recommended, inter alia:
'Notice of charges and opportunity to be heard.
'Before imposing any punishment for criminal contempt, the judge should give the offender notice of the charges and at least a summary opportunity to adduce evidence or argument relevant to guilt or punishment. 'Commentary
'Although there is authority that in-court contempts can be punished without notice of charges or an opportunity to be heard, Ex parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405 (1888), such a procedure has little to commend it, is inconsistent with the basic notions of fairness, and is likely to bring disrespect upon the court. Accordingly, notice and at least a brief opportunity to be heard should be afforded as a matter of course. Nothing in this standard, however, implies that a plenary trial of contempt charges is required.' American Bar Association Project on Standards for Criminal Justice, The Function of the Trial Judge § 7.4, p. 95 (Approved Draft 1972).
Cf. Fed.Rule Crim.Proc. 42(b); Harris v. United States, 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965). State courts have reached a similar conclusion. See, e.g., New York State Appellate Division, First and Second Departments, Special Rules Concerning Court Decroum § 609.2(b) (1971) in N. Dorsen & L. Friedman, Disorder in the Court: Report of the Association of the Bar of the City of New York, Special Committee on Courtroom Conduct 352 (1973).
9
My Brother REHNQUIST's dissent insists that the Court has rejected the teaching of Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717 (1952), that in a posttrial contempt proceeding, the court need not afford the contemnor the full panoply of procedures such as 'the issuance of process, service of complaint and answer, holding hearings, taking evidence, listening to arguments, awaiting briefs, submission of findings, and all that goes with a conventional court trial.' Id., at 9, 72 S.Ct., at 455 (emphasis added). But all we have decided today is that a contemnor is entitled to the elementary due process protections of 'reasonable notice of the specific charges and opportunity to be heard in his own behalf,' supra, at 499, neither of which petitioner received. Nowhere do we intimate that 'a full-scale trial is appropriate.' Ibid.; see also n. 8, supra. Moreover, whatever justifications may sometimes necessitate immediate imposition of summary punishment during trial 'to maintain order in the courtroom and the integrity of the trial process in the face of an 'actual obstruction of justice," Codispoti v. Pennsylvania, 418 U.S., at 513, 94 S.Ct., at 2692 '(r)easons for permitting straightway exercise of summary power are not reasons for compelling or encouraging its immediate exercise.' Sacher v. United States, supra, 343 U.S., at 9—10, 72 S.Ct., at 455.
10
Mr. Justice REHNQUIST's dissent also asserts that our decision provides the means whereby 'a judge can be driven out of a case by any counsel sufficiently astute to read the new-found constitutional principles enunciated (here and in Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971)).' Post, at 2710. But this statement—perhaps dissenter's license misconceives our holding and undervalues the import of the Dur Process Clause. As expressly noted in the text, we by no means equate this case with Mayberry v. Pennsylvania. It is not petitioner's conduct, considered alone, that requires recusal in this case; rather, the critical factor, as revealed by the record before us, is the character of respondent's response to misbehavior during the course of the trial. The dissent, of course, may view the record differently, but on that issue we are in unavoidable disagreement.
| 34
|
418 U.S. 424
94 S.Ct. 3042
41 L.Ed.2d 855
Douglas DORSZYNSKI, Petitioner,v.UNITED STATES.
No. 73—5284.
Argued March 20, 1974.
Decided June 26, 1974.
Syllabus
In sentencing a youth offender as an adult under other applicable penal statutes, § 5010(d) of the Federal Youth Corrections Act requires a federal district court to 'find' that the offender would not benefit from treatment under the Act, but does not require that such 'finding' be accompanied by supporting reasons. Pp. 431—444.
(a) Section 5010(d)'s requirement of a 'no benefit' finding is not to be read as a substantive standard that must be satisfied to support a sentence outside the Act, for such a reading would not comport with the intent of the Act, as manifested by its legislative history, to increase federal trial judges' sentencing options, or with the traditional doctrine that the sentencing function is exclusively vested in the trial court and is not reviewable if within the terms of the statute. It therefore follows that requiring a statement of supporting reasons to accompany a 'no benefit' finding would limit the trial court's sentencing discretion since it would only serve to facilitate appellate review of sentencing, contrary to the intent of the Act. Pp. 436—442.
(b) Section 5010(d)'s 'no benefit' finding requirement was designed to insure that the sentencing judge deliberately exercised discretion in choosing not to commit a youth offender to treatment under the Act, such a finding making it clear that the judge was not only aware of the Act's existence but also of the youth offender's eligibility for treatment thereunder. Once it is made clear that the judge has considered the option of the Act's treatment and rejected it, no appellate review is warranted. Pp. 442—443.
484 F.2d 849, reversed and remanded.
Robert H. Friebert for petitioner.
Gerald P. Norton, Washington, D.C., for respondent.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari, 414 U.S. 1091, 94 S.Ct. 721, 38 L.Ed.2d 548 (1973), to resolve a conflict in the Circuits concerning whether, in sentencing a youth offender under other applicable penal statutes, § 5010(d) of the Federal Youth Corrections Act, 18 U.S.C. § 5005 et seq., requires a federal district court first to make an explicit finding, supported by reasons on the record, that the offender would not benefit from treatment under subsection (b) or (c) of § 5010. The Court of Appeals held that such a finding may be implied from the record, 484 F.2d 849 (CA7 (1973). Three Circuits have taken that position,1 and three Circuits have required an explicit finding accompanied by supporting reasons.2 We conclude that while an express finding of no benefit must be made on the record, the Act does not require that it be accompanied by supporting reasons. The judgment of the Court of Appeals is therefore reversed, and the case is remanded to the District Court for further proceedings.
2
* On October 19, 1971, a special agent of the Federal Bureau of Narcotics and Dangerous Drugs made arrangements with petitioner's codefendant, whose case is not before this Court, to purchase approximately 1,000 tablets of lysergic acid diethylamide (LSD) the following day. At the appointed hour on October 20, 1971, the undercover agent was shown approximately 1,000 LSD tablets in the possession of petitioner's co-defendant, who transferred the tablets to the agent. The exhibition and transfer took place in an automobile being driven by petitioner. After the tablets were transferred to the agent but before money had changed hands, petitioner and his codefendant were arrested. The complaint upon which the arrest warrant for petitioner issued charged him with knowingly and intentionally possessing approximately 1,000 tablets of LSD, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 844(a).3 Subsequent to petitioner's release on his own recognizance, his counsel informed the District Court that petitioner intended to plead guilty to the charge, and requested the completion of a presentence report prior to the plea, as authorized by Fed.Rule Crim.Proc. 32(c).
3
On February 14, 1972, proceedings were had in the District Court upon the filing of an information, arraignment, plea, and sentence. The Government filed a one-count information charging petitioner and his co-defendant with a misdemeanor offense under 18 U.S.C. § 2 and 21 U.S.C. § 844(a). The Government informed the court that the maximum sentence petitioner and his codefendant, who were first offenders under § 844(a), could receive was one year in prison, a fine of $5,000, or both; the court was also advised that since petitioner might have been under the age of 26, see n. 9, infra, he 'may also be subject to the Federal Youth Corrections Act.'4 App. 6. Petitioner, who was 19 years old at the time of the proceeding and had had no prior criminal record, pleaded guilty, as did his codefendant. After inquiry as prescribed by Fed.Rule Crim.Proc. 11 to determine whether there was a basis in fact for petitioner's guilty plea, and whether it was entered voluntarily with understanding of its nature and consequences,5 the District Court accepted the plea.
4
Since petitioner desired to be sentenced at this proceeding, the District Court recessed to consider the presentence report, which petitioner's counsel had already read. After recess and before sentencing, petitioner was given his right to allocution, and petitioner's counsel requested the court that petitioner 'be placed . . . on probation under the Youth Corrections Act.' App. 13. See n. 4, supra. Petitioner then received a split sentence which remitted him to the custody of the Attorney General for one year, to serve 90 days' confinement 'in a jail-type or treatment' institution, although the judgment mentions only a 'jail-type' institution; the execution of the remainder of the sentence was suspended and petitioner was placed on probation for two years upon release from custody. 18 U.S.C. § 3651.6 At no time during the proceeding, including sentencing, did the District Court make any reference to the Federal Youth Corrections Act.
5
On May 1, 1972, after having filed numerous other post-conviction motions for relief, petitioner filed the motion at issue here, seeking relief pursuant to Fed.Rules Crim.Proc. 32(d) and 35, and 28 U.S.C. § 2255, on two grounds. The first alleged that his guilty plea was not made understandingly; that issue is not before us. See n. 5, supra. The second alleged that the District Court was without jurisdiction to impose the sentence given because the court failed to make a finding that petitioenr would not derive benefit from treatment under § 5010(b) or (c), as assertedly required by § 5010(d). See n. 4, supra. The District Court held an evidentiary hearing to consider this motion, as well as other motions pending at that time. All were denied without opinion. The District Court stated at the postconviction hearing that the Act did not require an affirmative finding that petitioner would not benefit from treatment thereunder before the court could sentence him under other applicable penalty provisions; the court concluded that in committing petitioner for one year under a split sentence 'the (District) Court impliedly (held) the Youth Corrections Act (was) not applicable.' App. 45.
6
The Court of Appeals affirmed, rejecting the view that trial judges must make an explicit finding that youth offenders would not benefit from treatment under the Act. The Court of Appeals held that such a determination may be implied from the record as a whole and that the imposition of the split sentence upon petitioner after his counsel had raised the possibility of sentencing under that Act satisfied § 5010(d). 484 F.2d, at 851.
II
The Federal Youth Corrections Act
7
The sole issue in this case is the validity of the sentence imposed by the District Court. Petitioner contends that before any adult sentence may be imposed § 5010(d) requires, first, that the sentencing judge find explicitly that the convicted defendant would receive no benefit from treatment under the Act and, second, that the sentencing judge must explain the reasons for his finding. We begin with the general proposition that once it is determined that a sentence is within the limitations set forth in the statute under which it is imposed, appellate review is at an end.7 Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 1284, 2 L.Ed.2d 1405 (1958); Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690 (1948); Blockburger v. United States, 284 U.S. 299, 305, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). Our task, therefore, is to determine whether the sentence imposed here was permitted under § 5010(d) of the Act.
8
The Federal Youth Corrections Act has been accurately described as the most comprehensive federal statute concerned with sentencing. United States v. Coefield, 155 U.S.App.D.C. 205, 209, 476 F.2d 1152, 1156 (1973). The Act is in substantial part an outgrowth of recommendations made by the Judicial Conference of the United States more than 30 years ago.8 The principles and procedures contained in the Conference recommendations were in turn largely based on those developed since 1894 for a system of treatment of young offenders in England, known as the Borstal system. See Criminal Justice Act of 1948, 11 & 12 Geo. 6, c. 58, and Criminal Justice Act of 1961, 9 & 10 Eliz. 2, c. 39. Statistics available at the time of the Conference study revealed the two principal motivating factors behind the enactment of the Act: first, the period of life between 16 and 22 years of age was found to be the time when special factors operated to produce habitual criminals. Second, then-existing methods of treating criminally inclined youths were found inadequate in avoiding recidivism. H.R.Rep.No.2979, 81st Cong., 2d Sess., 2—3 (1950) (hereinafter H.R.Rep.No.2979). The Act was thus designed to provide a better method for treating young offenders convicted in federal courts in that vulnerable age bracket, to rehabilitate them and restore normal behavior patterns. Ibid.
9
To accomplish this objective, federal district judges were given two new alternatives to add to the array of sentencing options previously available to them, see n. 9, infra: first, they were enabled to commit an eligible offender to the custody of the Attorney General for treatment under the Act. 18 U.S.C. § 5010(b) and (c). Second, if they believed an offender did not need commitment, they were authorized to place him on probation under the Act. 18 U.S.C. § 5010(a). If the sentencing court chose the first alternative, the youth offender would be committed to the program of treatment created by the Act.
10
The objective of these options represented a departure from traditional sentencing, and focused primarily on correction and rehabilitation. All persons under 22 years of age at the time of conviction were made eligible for probation or treatment under the Act,9 the latter defined as 'corrective and preventive guidance and training designed to protect the public by correcting (their) antisocial tendencies.' 18 U.S.C. §§ 5006(e) and (g). To implement the program of treatment for youth offenders committed under the Act, a Youth Correction Division was created under the Board of Parole which, in conjunction with the Bureau of Prisons and the Probation Service, operates to provide the unique features of the Act's program. 18 U.S.C. § 5005.
11
An important element of the program was that once a person was committed for treatment under the Act, the execution of sentence was to fit the person, not the crime for which he was convicted. Classification agencies were to be established by the Director of the Bureau of Prisons to receive and study the person committed and make recommendations to the Director as to appropriate treatment. 18 U.S.C. §§ 5014, 5015. Further, the range of treatment available was made broad to provide maximum flexibility. The Director was authorized both to adapt numerous public facilities, and to contract with public or private agencies, in order to provide institutional treatment which the Director could vary according to the committed person's progress or lack of it. 18 U.S.C. §§ 5011, 5015. An integral part of the treatment program was the segregation of the committed persons, insofar as practicable, so as to place them with those similarly committed, to avoid the influence of association with the more hardened inmates serving traditional criminal sentences. 18 U.S.C. § 5011.
12
In addition to institutional treatment, the Division was empowered to order conditional release under supervision at any time of those committed under the Act, with federal probation officers providing the supervision.10 18 U.S.C. §§ 5007, 5017, 5019. Conditional release was mandatory after a period of time fixed by the statutory formula. 18 U.S.C. § 5017. See n. 4, supra. The Division was further authorized to order the unconditional discharge of committed persons after a fixed period of treatment, and was required unconditionally to discharge them within a period also fixed by statutory formula. 18 U.S.C. § 5017. A powerful tool available to the Division was its discretion to discharge committed persons unconditionally before it was required to do so, for upon such discharge the conviction upon which the sentence rested would be automatically set aside. 18 U.S.C. § 5021(a). See n. 5, supra. Similarly, if the sentencing judge chose the second alternative created by the Act, i.e., placement of the youth offender on probation under its provisions, the judge himself could exercise his discretion to discharge the offender from probation unconditionally. 18 U.S.C. § 5021(b). See n. 6, supra. This, too, would result in the automatic setting aside of the offender's conviction 18 U.S.C. § 5021(a).
13
The foregoing describes the new options of treatment and probation made available to the federal sentencing courts under the Act.11 Our concern is not with the operation of these alternatives, but with the decision of the court to employ them, for the Act also preserved the power of trial judges to sentence youth offenders under 'any other applicable penalty provision.' It is to the question of when a judge may sentence a youth offender outside the Act that we now turn.
III
Sentencing Discretion Under the Act
14
(A)
15
The language affecting the sentencing role of the judge under this Act is found in § 5010(d), which tells us:
16
'If the court shall find that the youth offender will not derive benefit from treatment under subsection (b) or (c), then the court may sentence the youth offender under any other applicable penalty provision.'
17
Our concern is with the effect of the requirement of a 'no benefit' finding on the judge's sentencing discretion.
18
The legislative history clearly indicates that the Act was meant to enlarge, not restrict, the sentencing options of federal trial courts in order to permit them to sentence youth offenders for rehabilitation of a special sort.
19
'The proposed legislation is designed to make available for the discretionary use of the Federal judges a system for the sentencing and treatment of (youth offenders) that will promote the rehabilitation of those who in the opinion of the sentencing judge show promise of becoming useful citizens . . ..' H.R.Rep.No.2979, p. 1, U.S.Code Cong.Serv. 1950, p. 3983. (Emphasis added.) 'The purpose of the proposed legislation is to provide a new alternative sentencing and treatment procedure for (youth offenders).' S.Rep.No.1180, 81st Cong., 1st Sess., 1 (1949) (hereinafter S.Rep.No.1180). (Emphasis added.)
20
Thus, apart from the discretion vested in administrative agencies for treatment of those committed under the Act, as described in Part II, the Act was intended to broaden the scope of judicial sentencing discretion to include the alternatives of treatment or probation thereunder.
21
The Act was a product of studies made by a committee of federal judges under the auspices of the Judicial Conference of the United States. The views of the sponsors as to the effect of the Act on the sentencing discretion of the trial courts are thus of particular importance, and they uniformly support the view that the Act was intended to preserve the unfettered sentencing discretion of federal district judges. Most pertinent is the statement made by the Chairman of the Judicial Conference special committee appointed to study punishment for crime, see n. 8, supra, Chief Judge John J. Parker, who testified before the Subcommittee of the Senate Judiciary Committee, which conducted the only hearings held on the bill (S. 2609) enacted as the Federal Youth Corrections Act. Judge Parker stated:
22
'(T)he act . . . does not interfere with the power of the judge (with respect to sentencing youth offenders) but gives him merely an alternative method of treatment of those people. . . . He may still give the youthful offender the punishment prescribed by existing statutes, there is nothing in the bill that prevents that. All that the bill does is to provide that if in his judgment and discretion, he thinks that the offender before the court is one that can be treated with advantage under this bill, he can sentence him under this bill instead of under the existing law.
23
'. . . I do not see any possible objection (to the Act). They say that there are some of these fellows that ought to be given serious punishment notwithstanding their being young and it (the Act) does not prevent their being given serious punishment. Nothing prevents a man from getting 25 years punishment if he deserves it. Nothing prevents his being executed if he deserves such sentence.' Hearings on S. 1114 and S. 2609 before a Subcommittee of the Senate Committee on the Judiciary, 81st Cong., 1st Sess., 43—44 (1949) (hereinafter Hearings).
24
To the same effect is the statement made by Circuit Judge Orie L. Phillips, the Chairman of the Conference subcommittee which gave particular attention to the treatment of youth offenders. See n. 8, supra. In response to the statement of Senator Kilgore, sponsor of S. 2609, that the bill 'takes nothing' (in terms of sentencing) 'away from the court,' Judge Phillips replied: 'That is correct; it is purely optional.' Hearings 69. Earlier Judge Phillips had said of the bill: 'That is merely a flexibility and it is not a command that he send the boys up,' to which Senator Kilgore replied: 'I agree with you on that . . ..' Id., at 67. To the extent other testimony and the debates addressed the question of sentencing discretion under the Act, they invariably reflected the same view,12 as did the House Report, quoted above, and the Department of Justice, which recommended enactment of S. 2609 and noted that the bill 'would not deprive the court of any of its present functions as to sentencing.' S.Rep.No.1180, pp. 10—11. The Senate Report's language was identical to that of the Department of Justice.13 Id., at 1. The legislative history of the Act confirms the conclusion that Congress did not intend to alter or circumscribe the sentencing discretion of federal district judges by requiring that any substantive standard be met before the imposition of sentence. There is virtual unanimity of opinion in the legislative history that the Act was intended to increase the sentencing options of federal trial judges, rather than to limit the exercise of their discretion whether to employ the newly created options.
25
To construe § 5010(d)'s requirement of a 'no benefit' finding to circumscribe that discretion would be incompatible with a clear congressional intent; such a construction would also be at odds with traditional sentencing doctrine. The intent of Congress was in accord with long-established authority in the United States vesting the sentencing function exclusively in the trial court.14
26
'If there is one rule in the federal criminal practice which is firmly established, it is that the appellate court has no control over a sentence which is within the limits allowed by a statute.' Gurera v. United States, 40 F.2d 338, 340—341 (CA8 1930).
27
See Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948); Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).
28
The statutes referred to in this line of cases established a permissible range within which sentences could be imposed; if a judge imposed a sentence within that range, his exercise of discretion as to where within the permissible range sentence should be fixed was not subject to challenge. The authority to sentence a youth ofender under 'any other applicable penalty provision' is expressly reserved to federal trial courts by § 5010(d), and thus is within the permissible range of sentences which may be imposed under the Act. The 'no benefit' finding required by the Act is not to be read as a substantive standard which must be satisfied to support a sentence outside the Act, for such a reading would subject the sentence to appellate review even though the sentence was permitted by the Act's terms, thereby limiting the sentencing court's discretion. We will not assume Congress to have intended such a departure from well-established doctrine without a clear expression to disavow it. As our review has shown, the exclusive sentencing power of district judges was acknowledged, and Congress' intention to affirm that power was clearly indicated.
29
From our conclusion that a finding of 'no benefit' was not intended to constitute a substantive standard, it follows that a sentence outside the Act need not be accompanied by a statement of reasons why the court chose such a sentence. The only purpose of such a requirement would be to facilitate appellate supervision of, and thus to limit, the trial court's sentencing discretion.15 In short, we hold that the discretion vested in a district judge under § 5010(d) is essentially the same as the traditional discretion vested in the court, for example, to impose the minimum sentence on a first offender or a larger sentence on a recidivist. If the failure of a court to sentence a particular youth offender under the Act appears 'too harsh, the remedy must be afforded by act of Congress, not by judicial legislation under the guise of construction,' Blockburger, supra, at 305, 52 S.Ct., at 182, since '(w)hatever views may be entertained regarding severity of punishment . . . (t) hese are peculiarly questions of legislative policy.' Gore, supra, 357 U.S., at 393, 78 S.Ct., at 1285.
30
(B)
31
Although the Act was not in any way intended to circumscribe the discretion of sentencing courts, it did provide a new sentencing alternative designed to prevent youthful offenders from continuing their involvement in criminal conduct after the expiration of their sentence. In the novelty of the treatment option made available, and the importance of the objective it was to serve, lies the purpose of § 5010(d)'s requirement that the court find 'no benefit' before imposing a sentence other than one under § 5010(b) or (c).
32
Although well-established doctrine bars review of the exercise of sentencing discretion, limited review is available when sentencing discretion is not exercised at all. Yates v. United States, 356 U.S. 363, 366—367, 78 S.Ct. 766, 768—769, 2 L.Ed.2d 837 (1958); United States v. Daniels, 446 F.2d 967, 972 (CA6 1971); United States v. Williams, 407 F.2d 940, 945 (CA4 1969). See also n. 7, supra. The requirement of the 'no benefit' finding was designed to insure that the sentencing judge exercised his discretion in choosing not to commit a youth offender to treatment under the Act. Such a finding would make unmistakably clear that the sentencing judge was not only aware of the existence of the new Act, but also knew that the youth offender before him was eligible because of his age for the treatment it provided to accomplish its important purpose.
33
'Appellate modification of a statutorily-authorized sentence . . . is an entirely different matter than the careful scrutiny of the judicial process by which the particular punishment was determined. Rather than an unjustified incursion into the province of the sentencing judge, this latter responsibility is, on the contrary, a necessary incident of what has always been appropriate appellate review of criminal cases.' United States v. Hartford, 489 F.2d 652, 654 (CA5 1974). (Emphasis in original.)
34
Once it is made clear that the sentencing judge has considered the option of treatment under the Act and rejected it, however, no appellate review is warranted.
35
The question whether the finding of 'no benefit' must be explicit or whether it may be implicit in the record of a particular case is answered by the manifest desire of Congress to assure that treatment under the Act be considered by the court as one option whenever the youth offender is eligible for it. If the finding may be implied from the record, appellate courts must go on to determine what constitutes a sufficient showing of the requisite implication. To hold that a 'no benefit' finding is implicit each time a sentence under the Act is not chosen would render § 5010(d) nugatory; to hold that something more is necessary to support the inference that must be found in the record would create an ad hoc rule. Appellate courts should not be subject to the burden of case-by-case examination of the record to make sure that the sentencing judge considered the treatment option made available by the Act. Literal compliance with the Act can be satisfied by any expression that makes clear the sentencing judge considered the alternative of sentencing under the Act and decided that the youth offender would not derive benefit from treatment under the Act.
36
This case provides an example of the problems arising when the required finding is left to implication. Counsel's references to the Act followed by the District Court's sentence indeed afford support for the argument that, by implication, the options of the Act were considered and rejected. However at the post-conviction hearing the District Court found from the record of the sentencing hearing the implication that the Act was 'not applicable.' It is thus unclear whether this meant the court believed petitioner to be legally ineligible for treatment under the Act—which would be error—or whether, realizing he was eligible, nevertheless deliberately opted to sentence him as an adult. An explicit finding that petitioner would not have benefited from treatment under the Act would have removed all doubt concerning whether the enlarged discretion Congress provided to sentencing courts was indeed exercised.
37
Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded to the end that the District Court conduct further proceedings consistent with this opinion.
38
Reversed and remanded.
39
Mr. Justice MARSHALL, with whom Mr. Justice DOUGLAS, Mr. Justice BRENNAN, and Mr. Justice STEWART join, concurring in the judgment.
40
The Court is today called upon to construe the provision of the Federal Youth Corrections Act, 18 U.S.C. § 5005 et seq., defining the circumstances under which a youth offender may be sentenced as an adult. The Youth Corrections Act (YCA) provides a comprehensive sentencing scheme for offenders between the ages of 18 and 22, affording trial judges four options for sentencing such offenders. The judge may suspend imposition or execution of sentence and place the offender on probation. 18 U.S.C. § 5010(a). Alternatively, the judge may sentence the offender for treatment and supervision at a special youth facility, to be discharged in no more than 6 years, 18 U.S.C. § 5010(b), or he may commit the offender to a youth institution for a term which may exceed 6 years, up to the maximum period authorized by law for the offense. 18 U.S.C. § 5010(c).1 Finally, the judge may sentence the offender as an adult, pursuant to 18 U.S.C. § 5010(d), which provides that:
41
'If the court shall find that the youth offender will not derive benefit from treatment under subsection (b) or (c), then the court may sentence the youth offender under any other applicable penalty provision.'
42
I agree with the Court's holding that § 5010(d) requires an explicit finding of 'no benefit' as a condition precedent to sentencing an eligible offender as an adult, ante, at 444, but I find that holding patently inconsistent with the Court's assertion that a sentencing judge need only be aware of the applicability of the Act and choose to reject it in order to satisfy the clear admonition of § 5010(d). As construed by the Court, the '(o benefit' finding is not a finding at all.
43
I am convinced that the Act was meant to 'provides a preferred sentencing alternative which must be used in sentencing a youthful offender unless, in the language of § 5010(d), 'the court shall find that the youth offender will not derive benefit from treatment . . ." under the Act. Cox v. United States, 473 F.2d 334, 337 (CA4 1973) (en banc) (emphasis added). And, I fundamentally disagree with the Court's holding that merely by tracking the statutory 'no benefit' language a sentencing judge can satisfy the 'finding' requirement of § 5010(d). I would require that the explicit 'no benefit' finding be augmented by a statement of the reasons for imposing an adult sentence.
44
* I find no basis in either the language or history of the YCA to support the Court's observation that the Act was intended to 'preserve unfettered' the discretion of the sentencing judge. Ante, at 437. The YCA was the product of more than 10 years of study by various groups and was modeled after the English Borstal system, which had achieved substantial success in rehabilitating young offenders.2 The initial legislative proposal, an American Law Institute model Act, removed the power to sentence eligible offenders from the trial judges altogether and reposed that power in a correctional authority.3 Not surprisingly, that proposal brought swift and sharp criticism from the judges whose power was to be sharply curtailed. The next proposal, by the Judicial Conference, involved shared sentencing powers between trial judges and correctional authorities.4 It met with similar criticism. The 1949 proposal, which was finally enacted into law, retained sentencing power in the trial judge. As the Court today points out, the drafters of the Act repeatedly emphasized that the legislation "does not interfere with the (sentencing) power of the judge . . ..' Ante, at 437.
45
But even the very first Judicial Conference proposal contained a provision specifically requiring the trial judge to make a finding that a youth offender would not benefit from treatment and should not be committed under the Act, before sentencing him under any other penalty provisions.5 This finding requirement was adapted from the similar Borstal provision which disallows a sentencing court to 'impose imprisonment on a person under twenty-one years of age unless . . . no other (Borstal) method of dealing with him is appropriate . . ..'6 The finding requirement of the Judicial Conference draft was not subject to the same criticism as the provisions which actually removed, rather than limited, the exercise of trial judges' sentencing discretion, and the finding requirement was ultimately enacted into law as § 5010(d).
46
The finding requirement is an integral part of the YCA scheme. The stated premise of the Act is that young people between the ages of 18 and 22, especially, are promising subjects for rehabilitation.7 The purpose of the legislation was, for those offenders, to 'substitute for retributive punishment methods of training and treatment designed to correct and prevent anti-social tendencies. It departs from the mere punitive idea of dealing with criminals and looks primarily to the objective idea of rehabilitation.' H.R.Rep. No. 2979, 81st Cong., 2d Sess., 3 (1950), U.S.Code Cong. & Admin.News 1950, p. 3985.8 It is clear that from its very inception, the youth corrections program was intended to establish among the goals judges could consider in sentencing eligible offenders, one as paramount—that of rehabilitation.9 And, in this limited sense, the sentencing discretion of trial judges is necessarily circumscribed in regard to youth offenders. The finding requirement of § 5010(d) effectuates this policy by permitting eligible offenders to be deprived of the rehabilitative treatment provided under the Act only where they would not benefit therefrom.
47
The Senate Report accompanying the bill explained the circumstances under which adult sentencing would be proper:
48
'If . . . the judge is convinced the youth is incorrigible and would derive no help from the program, he may sentence him under any applicable provision of law.' S.Rep.No.1180, 81st Cong., 1st Sess., 5 (1949).
49
Other aspects of the legislative history underscore Congress' intention that the Act provide a preferred sentencing alternative for eligible offenders. Senator Kilgore, one of the sponsors of the legislation, observed that given the requisite finding 'only about 10 percent of (eligible offenders would) eventually have to (be) sentence(d as adults), or less.' Hearing on S. 895 before a Subcommittee of the Senate Committee on the Judiciary, 78th Cong., 1st Sess., 13 (1943). The House Report concluded that even given the instances in which YCA rehabilitative treatment would fail 'more than 70 percent (of eligible youth offenders) can be rehabilitated' under the Act. H.R.Rep.No.2979, supra, at 10; U.S.Code Cong.Serv. 1950, p. 3993. The panoply of treatment options10 available under the Act is but further evidence that the YCA program was intended to be sufficiently comprehensive to deal with all but the 'incorrigible' youth.
50
This congressional intent finds clear expression in the words of the statute. Section 5010(d) does not say the sentencing court must merely consider the treatment option provided by the Act, it says in the most uncompromising terms that the court must find the youth 'will not benefit' from YCA treatment as a prerequisite to imposing an adult sentence. The use of the words 'shall find' emphasizes the mandatory nature of that finding. The specific quality of the finding is underscored by § 5010(e) which provides for an eligible offender to be temporarily committed for observation and study for the purpose of providing the sentencing court with a report on the particular question defined by § 5010(d)—whether the youth offender would benfit from treatment under the Act.11
51
Thus, while the Act does not remove a trial judge's responsibility or discretion for the sentencing determination, it does provide a preferred disposition for eligible offenders. A sentencing judge is not required to sentence a youth offender under the Act; the judge can still exercise his 'sound discretion to deny such rehabilitative treatment to those youths in the exceptional cases where the judge determines that the special youth treatment afforded by the Act would be of no value.' United States v. Waters, 141 U.S.App.D.C. 289, 291, 437 F.2d 722, 724 (1970). The legislative history relied on by the Court merely emphasizes this point—that the Act was intended to be another sentencing alternative available to the trial judge and that the decision as to whether it should be employed in a particular case remains a decision committed to his discretion. That history is not, however, inconsistent with what seems to me the plain meaning of the words of the statute—that the sentencing jduge's discretion is circumscribed by the affirmative finding requirement of § 5010(d).12 The YCA 'provides a preferred sentencing alternative' which must be used in sentencing a youth unless the facts of the individual case meet the statutory requirement—unless, in the language of § 5010(d), the court finds that the youth offender will not derive benefit from treatment under the Act.13 Cox v. United States, 473 F.2d, at 337; United States v. Waters, 141 U.S.App.D.C. 292—293, 437 F.2d, at 725—726. Every Court of Appeals which has considered the issue, except the court below, has agreed that the manner in which the sentencing judge exercises his discretion is thus limited. Brooks v. United States, 497 F.2d 1059 (CA6 1974); United States v. Kaylor, 491 F.2d 1133 (CA2 1974) (en banc); United States v. Schenker, 486 F.2d 318 (CA5 1973); United States v. Coefield, 155 U.S.App.D.C. 205, 476 F.2d 1152 (1973) (en banc); Cox v. United States, supra; Williams v. United States, 476 F.2d 970 (CA3 1973); see United States v. MacDonald, 455 F.2d 1259, 1265 (CA1 1972);14 cf. Small v. United States, 304 A.2d 641 (D.C.Ct.App.1973).
52
The proposed amendment was not enacted.
53
In a sense, the Court today also recognizes the inherent limitation on the judge's discretion imposed by § 5010(d) by requiring an explicit 'no benefit' finding as a prerequisite to adult sentencing. As conceived by the Court, however, the required 'no benefit' finding is no finding at all, but merely a ritualistic invocation of the statutory language. In explaining why the 'no benefit' finding must be explicit, the Court notes that '(t)o hold that a 'no benefit' finding is implicit each time a sentence under the Act is not chosen would render § 5010(d) nugatory.' Ante, at 444. Despite these protestations, the Court today renders the finding requirement of § 5010(d) a nullity. By holding that the Act was intended to preserve 'the unfettered sentencing discretion of federal district judges,' ante, at 437 and that sentencing judges need only have 'considered the option of treatment under the Act and rejected it,' ante, at 443, the Court effectively reads the unambiguous mandate of a 'no benefit' finding out of the Act. A mere parroting of the statutory language is hardly an affirmative finding. The Court's opinion seems to indicate that the sentencing judge need not mean what he says when he pronounces the 'no benefit' litany. Although the Court requires him to go through the charade of saying that the offender would not benefit from treatment under the Act, it apparently does not require that the judge actually find no benefit but only that he be aware of the Act and reject it. I think it remarkable that this Court should approve such an empty and duplicitous ritual.
II
54
If the Court were to hold that the Act limited a trial judge's discretion by requiring that he actually find a youth offender would not benefit from YCA treatment before sentencing him as an adult, I would think that more than a mere recitation of the conclusory finding of 'no benefit' should be required. To say that simply invoking the words of the statute satisfies the mandate of § 5010(d) affords far too little credence both to Congress' deep concern for the rehabilitative potential of young offenders and to its obvious intention that eligible offenders be sentenced under the Act if they would benefit from its rehabilitative programs. To give effect to these concerns, I would reuire that the trial judge include, on the record, a statement which makes clear that he considered the provisions of the Act, weighed the treatment option available, and decided in light of his familiarity with the offender that he would not derive benefit from treatment under the Act.15
55
The mere recitation of the 'no benefit' litany can hardly bear the weight of demonstrating such compliance. By taking the unusual step of requiring a specific finding in this limited but highly important area of sentencing, Congress mandated a reasoned determination that the offender would not benefit from the rehabilitative treatment available under the Act. Accordingly, in my view, a statement of the factors which informed and shaped the sentencing decision must accompany the conclusory finding of 'no benefit' if that congressional purpose is to be served.
56
The Borstal system, which provided the model for the youth corrections scheme in general and the requirement of § 5010(d) in particular, envisions a trial judge stating his reasons for sentencing an eligible offender as an adult.16 Similarly, most of the Courts of Appeals which have faced the issue have required a statement of reasons as a necessary concomitant of the § 5010(d) finding. A unanimous en banc decision of the Court of Appeals for the Second Circuit and a near-unanimous en banc decision of the Court of Appeals for the District of Columbia Circuit17 have found a statement of reasons supporting the 'no benefit' finding to be "essential to a knowledgeable administration of the Act . . .." United States v. Kaylor, 491 F.2d, at 1139; United States v. Coefield, 155 U.S.App.D.C., at 210, 476 F.2d, at 1157. The Court of Appeals for the Sixth Circuit has, more recently, held that a statement of reasons accompanying adult sentencing is 'necessary to insure that the sentencing court . . . has deliberately considered whether a youth offender may benefit from the treatment provided for in the Act . . ..' Brooks v. United States, 497 F.2d, at 1063.
57
Similarly the Court of Appeals for the Fourth Circuit recently remanded a case for consideration of whether treatment under the Act would be beneficial to the offender and specifically ordred the trial judge to state the reasons for his conclusion. Cox v. United States, 473 F.2d, at 337. In fact, the court below is the only Court of Appeals to specifically disavow a requirement of reasons for a § 5010(d) sentence.18
58
Contrary to the Court's assertion that appellate review is the only purpose to be served by a statement of reasons, that requirement serves a number of other important policies. First, it might well contribute to rationalizing the sentencing process and to decreasing disparities in sentences. Articulating reasons should assist a trial judge in developing for himself a consistent set of principles on which to base his sentencing decisions. Requiring '(s)uch a procedure would encourage the judge to clarify and justify, in his own mind, the grounds for the sentence he chooses. As a result, sentencing decisions would tend, on the whole, to be more carefully thought out.' United States v. Velazquez, 482 F.2d 139, 142 (CA2 1973); Accord, United States v. Brown, 479 F.2d 1170, 1172 (CA2 1973).
59
The reasons may also be of use to correctional authorities in their handling of the prisoner after sentence. The kind of correctional and rehabilitative treatment an offender receives should take into account the reasons for his sentence.
60
A disclosure of reasons may also aid the defendant's counsel to insure that the sentence is not premised on misinformation or inaccuracies in the material upon which the sentencing judge relies. 'A Sphinx-like silence on the court's part precludes anyone (including the parties, (and) the judge . . .) from learning whether he acted in error.' Id., at 1173; cf. United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972).
61
Moreover, an articulation of reasons may actually contribute to the offender's rehabilitation by avoiding any feeling that his sentence was arbitrary.19 Mr. Justice (then Judge) STEWART observed:
62
'Justice is measured in many ways, but to a convicted criminal its surest measure lies in the fairness of the sentence he receives. . . . It is an anomaly that a judicial system which has developed so scrupulous a concern for the protection of a criminal defendant throughout every other stage of the proceedings against him should have so neglected this important dimension of fundamental justice.' Shepard v. United States, 257 F.2d 293, 294 (CA6 1958).
63
If reasons were articulated for the sentencing decision, an offender would be less apt to perceive his fate as being arbitrarily determined.20 Reasoned decisions may even enhance the legitimacy of the sentencing process as perceived by the general public for, as noted by the Report of the American Bar Association Project on Standards for Criminal Justice:
64
'It is hardly commanding of public respect for our system on the one hand to increase the alternatives of the sentencing judge so that he can shape his sentence to fit each case, and on the other hand to take the position that he need not explain why he selects a particular sentence . . ..'21
65
Although these considerations apply to sentencing decisions generally,22 I do not mean to suggest that reasons are required in any other sentencing context. Contrary to the majority's accusations, my view of the Act does not require wholesale abandonment of 'traditional sentencing doctrine.' Ante, at 440. We are concerned here with only a limited, albeit important, area of sentencing for which Congress has established special rules. Congress' urgent concern for the rehabilitative potential of young offenders and the specific-finding requirement of § 5010(d) make the need for reasons particularly compelling in this context. Requiring a statement of reasons would encourage trial judges to direct their attention to the crucial questions of benefit and treatment, to take a hard look at the relevant factors, and to focus on value judgments inherent in their sentencing decision. See United States v. Phillips, 156 U.S.App.D.C. 217, 479 F.2d 1200 (1973). It is clearly consonant with the Act to require such reasoned consideration. I must agree with the perceptive observations of Senior Judge Fahy of the District of Columbia Circuit that requiring a statement of reasons is essential to assure:
66
'firstly, that the District Judge manifest not only an awareness that the Act is applicable to the case, but also an accurate understanding of the scope of his discretion under the Act; secondly, that the District Judge has been informed of the pertinent facts relating to the individual defendant before him, either by evidence coming to his attention in the trial, by a presentence report, or by a recommendation and report made under section 5010(e); and thirdly, that the District Judge, by his statement of reasons where required, has given consideration and related the facts of the individual case to the applicable law.' United States v. Coefield, 155 U.S.App.D.C., at 210—211, 476 F.2d, at 1157 1158 (footnote omitted).
67
Section 5010(e) of the Act provides a mechanism for the trial judge to secure the expert assistance of correctional authorities in determining whether an eligible offender would benefit from treatment. I agree with the two Courts of Appeals which have passed on the issue that:
68
'(W)hen a judge has availed himself of the assistance afforded by § 5010(e), that is to say, where he has ordered the youth offender committed . . . for observation and study . . . and the Division has made its report to the court, and after considering the report has followed its findings or recommendation in imposing sentence, additional reasons are not required to be stated, although, of course, the judge is not prevented from stating his own reasons.' United States v. Kaylor, 491 F.2d, at 1139.
69
Accord, United States v. Coefield, 155 U.S.App.D.C. 205, at 210, 476 F.2d 1152, at 1157. But the Act clearly intended that the ultimate sentencing decision remain with the trial judge. That decision should not pass by abdication to the correctional authorities who prepare the § 5010(e) study. Thus, where a trial judge secures a § 5010(e) report, he should adopt its reasons as his own only after assuring himself of the adequacy of the report and propriety of its recommendation.23
70
I see no reason to reach here the issue of appellate review of the District Court's imposition of an adult sentence. I believe that the Youth Corrections Act provides a preferred-sentencing alternative which can only be abandoned on the basis of a finding that an eligible offender will not benefit from treatment under the Act. The District Court imposed sentence on the assumption that the YCA was not a preferred disposition and no finding was required. The Court today finds the District Court's sentence invalid only for failure to make the required 'no benefit' finding. Under either the Court's view or my own, the appellate-review question is clearly not yet presented by this case.24
71
Accordingly, I concur in the judgment of the Court insofar as it reverses and remands because the District Court failed to make the requisite 'no benefit' finding. I disagree, however, with the opinion of the Court insofar as it suggests that a merely conclusory statement of 'no benefit' satisfies the statutory requirement and insofar as it purports to pass, albeit in dicta, on the question of appellate review of a § 5010(d) adult sentence, an issue not before this Court.
1
Williams v. United States, 476 F.2d 970 (CA3 1973); Cox v. United States, 473 F.2d 334 (CA4 1973) (en banc); United States v. Jarratt, 471 F.2d 226 (CA9 1972), cert. denied, 411 U.S. 969, 93 S.Ct. 2161, 36 L.Ed.2d 691 (1973); cf. United States v. Walker, 469 F.2d 1377 (CA1 1972).
2
Brooks v. United States, 497 F.2d 1059 (CA6 1974); United States v. Kaylor, 491 F.2d 1133 (CA2 1974) (en banc); United States v. Coefield, 155 U.S.App.D.C. 205, 476 F.2d 1152 (1973) (en banc); cf. United States v. Schenker, 486 F.2d 318 (CA5 1973); see also Small v. United States, 304 A.2d 641 (DC Ct.App.1973).
3
Title 18 U.S.C. § 2 made petitioner punishable as a principal for any offense against the United States committed by his codefendant. Title 21 U.S.C. § 844(a) makes punishable the knowing or intentional possession of a controlled substance such as LSD when not obtained pursuant to a valid prescription or order, or as otherwise authorized by law.
4
The sentencing provisions of the Act, 18 U.S.C. § 5010, are as follows:
'(a) If the court is of the opinion that the youth offender does not need commitment, it may suspend the imposition or execution of sentence and place the youth offender on probation.
'(b) If the court shall find that a convicted person is a youth offender, and the offense is punishable by imprisonment under applicable provisions of law other than this subsection, the court may, in lieu of the penalty of imprisonment otherwise provided by law, sentence the youth offender to the custody of the Attorney General for treatment and supervision pursuant to this chapter until discharged by the Division as provided in section 5017(c) of this chapter; or
'(c) If the court shall find that the youth offender may not be able to derive maximum benefit from treatment by the Division prior to the expiration of six years from the date of conviction it may, in lieu of the penalty of imprisonment otherwise provided by law, sentence the youth offender to the custody of the Attorney General for treatment and supervision pursuant to this chapter for any further period that may be authorized by law for the offense or offenses of which he stands convicted or until discharged by the Division as provided in section 5017(d) of this chapter.
'(d) If the court shall find that the youth offender will not derive benefit from treatment under subsection (b) or (c), then the court may sentence the youth offender under any other applicable penalty provision.
'(e) If the court desires additional information as to whether a youth offender will derive benefit from treatment under
subsection (b) or (c) it may order that he be committed to the custody of the Attorney General for observation and study at an appropriate classification center or agency. Within sixty days from the date of the order, or such additional period as the court may grant, the Division shall report to the court its findings.'
The release of youth offenders committed under § 5010 is governed by 18 U.S.C. § 5017, which provides in part:
'(a) The Division may at any time after reasonable notice to the Director release conditionally under supervision a committed youth offender. When, in the judgment of the Director, a committed youth offender should be released conditionally under supervision he shall so report and recommend to the Division.
'(b) The Division may discharge a committed youth offender unconditionally at the expiration of one year from the date of conditional release.
'(c) A youth offender committed under section 5010(b) of this chapter shall be released conditionally under supervision on or before the expiration of four years from the date of his conviction and shall be discharged unconditionally on or before six years from the date of his conviction.
'(d) A youth offender committed under section 5010(c) of this chapter shall be released conditionally under supervision not later than two years before the expiration of the term imposed by the court. He may be discharged unconditionally at the expiration of not less than one year from the date of his conditional release. He shall be discharged unconditionally on or before the expiration of the maximum sentence imposed, computed uninterruptedly from the date of conviction.'
5
Although petitioner's complaint here is that he was not sentenced under the Act, following his conviction he challenged the validity of his plea in part on the ground that he was not informed that under
the Act he could have received a sentence of incarceration and supervision up to a period of six years, 18 U.S.C. §§ 5010(b) and 5017(c), see n. 4, supra, in asserted violation of Rule 11. The District Court denied relief on this ground; that ruling has not been challenged.
6
There is no contention made that the District Court could not place petitioner on probation under 18 U.S.C. § 3651, as opposed to probation under the Act, 18 U.S.C. § 5010(a). See United States v. Kurzyna, 485 F.2d 517 (CA2 1973). Petitioner was released from confinement to probation on May 11, 1972, with the special condition that his probation terminate May 11, 1974. Although by now petitioner may have fully served his sentence, including probation, he still suffers the disabilities accompanying a criminal misdemeanor conviction under 21 U.S.C. § 844(a). While the provision under which he was sentenced to probation, 18 U.S.C. § 3651, does not provide for relief from these disabilities, the Act does so in 18 U.S.C. § 5021, by its provision for setting aside the conviction of a youth offender:
'(a) Upon the unconditional discharge by the division of a committed youth offender before the expiration of the maximum sentence imposed upon him, the conviction shall be automatically set aside and
the division shall issue to the youth offender a certificate to that effect.
'(b) Where a youth offender has been placed on probation by the court, the court may thereafter, in its discretion, unconditionally discharge such youth offender from probation prior to the expiration of the maximum period of probation theretofore fixed by the court, which discharge shall automatically set aside the conviction, and the court shall issue to the youth offender a certificate to that effect.'
Despite the expiration of petitioner's sentence, then, he may still receive the benefit of 18 U.S.C. § 5021 if he is resentenced under the Act. To be eligible to have his conviction set aside under the Act, petitioner would have to be committed under § 5010(b) or (c), or placed on probation under § 5010(a), and achieve the early discharge required by § 5021(a) or (b). While this might require the imposition of a longer sentence than he originally received, petitioner represents through counsel that he would voluntarily seek resentencing which would place him back on probation. Tr. of Oral Arg. 8, 16—18. The District Court would then be able, as a matter of discretion, to provide the requisite early unconditional discharge. 18 U.S.C. § 5021(b).
7
There is no contention here that the District Court relied upon improper or inaccurate information. United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). Petitioner contends he was denied due process because he was deprived of his claimed right to be sentenced under the Act, without a reasoned explanation on the record for the asserted deprivation. We need not address this contention, for it was not raised before the District Court, the Court of Appeals, or in the questions presented in the petition for certiorari. Phillips Chemical Co. v. Dumas Independent School Dist., 361 U.S. 376, 386 n. 12, 80 S.Ct. 474, 480, 4 L.Ed.2d 384 (1960); Irvine v. California, 347 U.S. 128, 129—130, 74 S.Ct. 381, 382, 98 L.Ed. 561 (1954); Radio Officers' Union v. NLRB, 347 U.S. 17, 37 n. 35, 74 S.Ct. 323, 334, 98 L.Ed. 455 (1954).
8
In 1941 Mr. Chief Justice Stone requested the Judicial Conference to study the general subject of punishment for crime. The Chief Justice appointed four federal courts of appeals judges and three district judges to the committee which undertook the study. A subcommittee gave particular attention to the treatment of youth offenders. The committee made a report to the Judicial Conference in 1942, and developed a draft of an act to provide a correctional system for adult and youth offenders. The report as adopted by the Conference was first presented to Congress in 1943. The recommendations regarding youth offenders were largely adopted by Congress in 1949 in the bill which became the Federal Youth Corrections Act in 1950.
9
The Act is ordinarily not applied to convicted persons under the age of 18, who are eligible for sentencing under the provisions of the Federal Juvenile Delinquency Act, 18 U.S.C. § 5031 et seq. And certain multiple offenders in the District of Columbia are, despite their qualifying age, barred from sentencing under the Act. D.C.Code Ann. § 22—3202(d)(1). By contrast, convicted persons between the ages of 22 and 26, termed 'young adult' offenders, may be sentenced for treatment under the Act if 'the court finds that there is reasonable groun(d) to believe that the defendant will benefit from' treatment under the Act. 18 U.S.C. § 4209. Of course, adult offenders are eligible for sentencing only under statutory provisions different from those available for juveniles, youth offenders, and young adult offenders.
10
In 1952, Congress amended § 5024 of the Act, and added §§ 5025 and 5026, in order to extend the Act's coverage to youth offenders convicted in the District of Columbia. 66 Stat. 45. In 1967, Congress further amended these sections, withdrawing from the Bureau of Prisons and the Youth Correction Division control of District of Columbia youth offenders during their commitment and after their release. Control during these periods was instead given to the Commissioner of the District of Columbia, who could in turn delegate this authority to the D.C. Department of Corrections, in order to provide continuity of treatment.
11
In recognition of the difficulty of ascertaining whether, and if so which type of, treatment under the Act would benefit a youth offender, the Act also permits the sentencing court to commit the offender to one of the above classification agencies where, following observation and study, the Youth Correction Division reports its findings to the court within 60 days. 18 U.S.C. § 5010(e).
12
The only other judges to testify before the Senate Subcommittee were also in accord. District Judge Carroll Hincks, who served on the Conference subcommittee studying treatment of youth offenders, stated:
'I think when the judges say they are opposed to the predecessor of this bill, if you could talk with them, you would find that . . . they
would not themselves want to use it. Very well, they do not have to use it.' Hearings 57.
District Judge Bolitha J. Laws, who served on the Conference special committee studying general punishment for crime, stated:
'I have already told you that this law is purely an optional situation. A judge who feels that the present system is in all respects perfect and who does not want to use the new provisions, except perhaps rarely, does not have to use them. He still may do one of two things. He may admit the man to probation, or he may send him to an institution exactly as he does now.' Id., at 15.
Mr. James V. Bennett, Director, Bureau of Prisons, testified similarly:
'I would like to . . . reemphasize more than Judge Laws has done, that this bill is discretionary . . .. (I)t is very difficult for me to conceive of anybody who could rightfully object to the bill because they can use it or not, as they see fit . . ..' Id., at 25.
During the Senate debate over the bill, Senator Kilgore made clear his position of the matter of sentencing discretion under the bill:
'Its purpose is to grant to trial courts . . . some additional facilities . . . to try certain correctional methods. Use of the system provided by this measure would not be mandatory.' 96 Cong.Rec. 8267 (1950). There was no discussion of sentencing discretion by anyone other than Senator Kilgore in either the Senate or House debates.
13
The Senate Report also noted that the sentencing judge may sentence a youth offender under applicable provisions other than the Act if, after receiving a pre-sentence diagnosis under 18 U.S.C. § 5010(e), see n. 11, supra, he is convinced the youth is 'incorrigible and would derive no help from the program.' S.Rep.No.1180, p. 5. The remark was made in the context of a discussion concerning the need sentencing judges hve for additional information about youth offenders they must sentence, and indicated merely that temporary commitment under § 5010(e) would not deprive the judge
of the discretion to sentence the youth outside the Act, citing illustratively the prototype of youth offender whom judges would not likely desire to sentence under the Act.
14
To the extent reference was made to the English Borstal system for treating young offenders in drafting the Act, that reference did not include the English view of the trial court's discretion to make use of that system. Circuit Judge (now Chief Judge) Kaufman of the Court of Appeals for the Second Circuit has stated:
'At present the United States is the only nation in the free world where one judge can determine conclusively, decisively and finally the minimum period of time a defendant must remain in prison, without being subject to any review of his determination.' Symposium, Appellate Review of Sentences, 32 F.R.D. 257, 260—261 (1962).
Professor Sanford H. Kadish also notes that in the United States, the 'discretion of the judge . . . in (sentencing) matters is virtually free of substantive control or guidance,' Kadish, Legal Norm and Discretion in the Police and Sentencing Processes, 75 Harv.L.Rev. 904, 916 (1962). We are unwilling to ascribe to the Congress an intent to import, sub silentio, sentencing doctrine contrary to traditional powers of sentencing judges.
15
Judge Marvin E. Frankel (SDNY) has recently stated that while judges are required to explain other rulings, see, e.g., Fed.Rule Civ.Proc. 52(a), '(t) here is no such requirement in the announcement of a prison sentence.' Frankel, Lawlessness in Sentencing, 41 U.Cin.L.Rev. 1, 9 (1972). It would have been a very simple matter for Congress to have included a statement in § 5010(d) that the sentencing court's determination of no benefit must be supported by reasons, as was required by the proposal regarding adult offenders, before the Congress in 1943, S. 895, Tit. II, § 1, 78th Cong., 1st Sess. See n. 8, supra. Congress' failure to so provide in § 5010(d) strengthens our view that it intended no new appellate encumbrance upon the sentencing process.
1
The actual duration of the treatment period is determined by the Youth Correction authorities. 18 U.S.C. § 5017.
2
H.R.Rep. No. 2979, 81st Cong., 2d Sess., 3—6 (1950).
3
ALI, Model Youth Correction Authority Act §§ 13 and 30 (Official Draft 1940); id., comment, at 35—36.
4
H.R. 2140, Tit. II, § 3, 78th Cong., 1st Sess. (1943).
5
Id., Tit. III, § 1(c).
6
Criminal Justice Act of 1948, § 17(2), 11 & 12 Geo. 6, c. 58.
7
H.R.Rep.No.2979, supra, at 1—4.
8
Although the rehabilitative model of corrections has recently been subject to criticism, the fact remains that Congress established a clear preference for the objective of rehabilitation in enacting the YCA.
9
See, e.g., United States v. Kaylor, 491 F.2d 1133, 1136 (CA2 1974) (en banc); United States v. Waters, 141 U.S.App.D.C. 289, 293, 437 F.2d 722, 726 (1970); Carter v. United States, 113 U.S.App.D.C. 123, 125, 306 F.2d 283, 285 (1962).
10
Emulating the Borstal system, Congress authorized a comprehensive youth corrections system, making a wide range of treatment options available to youth offenders. It mandated that maximum, medium, and minimum security institutions be utilized, 18 U.S.C. § 5011, that long- and short-term treatment be provided, compare 18 U.S.C. § 5010(b) with 18 U.S.C. § 5010(c), and that a wide range of treatment services be available. 18 U.S.C. §§ 5011, 5015.
11
'If the court desires additional information as to whether a youth offender will derive benefit from treatment under subsection (b) or (c) it may ordr that he be committed to the custody of the Attorney General for observation and study at an appropriate classification center or agency. Within sixty days from the date of the order, or such additional period as the court may grant, the Division shall report to the court its findings.' 18 U.S.C. § 5010(e) (emphasis added).
12
An unsuccessful effort to remove these bonds on the discretion of sentencing judges was made in 1972, when a bill was introduced to amend 18 U.S.C. § 5010(d) to provide that:
'Nothing in this chapter shall be construed to preclude the court, in any case, from sentencing a youth offender under any other applicable penalty provision.' S. 3290, 92d 2d Sess (1972); see 118 Cong.Rec. 6776-6788 (1972).
13
The requirement of a positive finding of 'no benefit' to support an adult sentence under § 5010(d) is merely the obserse of the requirement of 18 U.S.C. § 4209 that as a prerequisite to young adult offender sentencing the sentencing 'court finds that there is reasonable grounds to believe that the defendant will benefit from (such) treatment . . ..' See United States v. Kayor, 491 F.2d, at 1137.
14
Subsequently in United States v. Walker, 469 F.2d 1377 (1972), the Court of Appeals for the First Circuit agreed that the Act precluded adult sentencing where the offender would derive benefit from treatment under the Act, but found it clear from the nature of the offenses involved that the defendant had no antisocial tendencies to be corrected, hence no benefit to be derived from YCA treatment. Id., at 1381 n. 4.
15
See Brooks v. United States, 497 F.2d 1059, 1062—1063 (CA6 1974); United States v. Kaylor, 491 F.2d, at 1139; United States v. Coefield, 155 U.S.App.D.C. 205, 210—211, 476 F.2d 1152, 1157—1158 (1973) (en banc).
16
Criminal Justice Act of 1948, § 17(3), 11 & 12 Geo. 6, c. 58. The Court asserts, ante, at 440 n. 14, that the reference to the English Borstal system made in drafting the Act 'did not include the English view of the trial court's discretion to make use of that system.' To support this claim, the Court relies on two general descriptions of American sentencing procedures made a decade after enactment of the legislation. Those comments were not directed to the administration of the YCA, hence their validity as indicia of congressional intent in this limited context is questionable at best.
On the other hand, there is considerable evidence that the Borstal system did, in fact, provide a model on the question of the trial court's sentencing discretion, not the least of which is the marked similarity between 18 U.S.C. § 5010(d) and the Criminal Justice Act of 1948, § 17(2), 11 & 12 Geo. 6, c. 58, both of which require a no-benefit finding as a prerequisite to adult sentencing.
17
Only Judge MacKinnon, of the 10 participating judges on the Court of Appeals for the District of Columbia Circuit, dissented from that court's en banc decision in Coefield, supra.
18
The First Circuit in United States v. MacDonald, 455 F.2d 1259, 1265 (1972), remanded a case to the District Court 'to make the findings required by the Federal Youth Corrections Act,' leaving unclear whether those findings encompassed a statement of reasons. The Third Circuit specifically reserved the issue in Williams v. United States, 476 F.2d 970 (1973). The Fifth Circuit, in its only cae on the issue, remanded for appropriate findings under § 5010(d) without explanation as to whether an ultimate finding of no benefit was alone sufficient. United States v. Schenker, 486 F.2d 318 (1973). A case specifically dealing with the reasons requirement, Hoyt v. United States, No. 73—2435, is presently pending before the Fifth Circuit. The Ninth Circuit called for an express no-benefit finding but has not faced the question of whether reasons are required in support thereof. United States v. Jarratt, 471 F.2d 226 (1972).
19
A leading federal district judge has observed that '(t)he absence of any explanation or purported justification for the sentence is among the more familiar and understandable sources of bitterness among people in prison.' M. Frankel, Criminal Sentences, Law Without Order 42—43 (1972).
20
There may, of course, be circumstances in which it would not be advisable to state the reasons underlying imposition of a particular sentence in the presence of the defendant, in which case those reasons could instead be committed to writing and made part of the record.
21
American Bar Association Project on Standards for Criminal Justice, Appellate Review of Sentences 2—3 (Approved Draft 1968).
22
For a general discussion of the value of a statement of the reasons underlying the imposition of sentence, see United States v. Phillips, 156 U.S.App.D.C. 217, 479 F.2d 1200 (1973); United States v. Velazquez, 482 F.2d 139, 142 (CA2 1973); United States v. Brown, 479 F.2d 1170, 1172 (CA2 1973); American Bar Association Project on Standards for Criminal Justice, Sentencing Alternatives and Procedures § 5.6(ii) and commentary (b), pp. 270 271 (Approved Draft 1968); id., Appellate Review of Sentences § 2.3(') and commentary (e), pp. 45—47 (Approved Draft 1968); M. Frankel, Criminal Sentences, Law Without Order 39—49 (1972); R. Goldfarb & L. Singer, After Conviction 191—195 (1973); Wyzanski, A Trial Judge's Freedom and Responsibility, 65 Harv.L.Rev. 1281, 1292—1293 (1952); Youngdahl, remarks Opening the Sentencing Institute Program, 35 F.R.D. 387, 388 (1964); cf. North Carolina v. Pearce, 395 U.S. 711, 726, 89 S.Ct. 2072, 2081, 23 L.Ed.2d 656 (1969); Kent v. United States, 383 U.S. 541, 561, 86 S.Ct. 1045, 1057, 16 L.Ed.2d 84 (1966).
23
See, e.g., United States v. Norcome, 375 F.Supp. 270 (D.C.1974); United States v. Tillman, 374 F.Supp. 215 (D.C.1974).
24
Respondent agrees that should this Court determine that the YCA provides a preferred-sentencing alternative for eligible offenders, then the Court need not reach in this case the issue of appellate review since the District Court never considered itself bound by such a standard. Brief for United States 40—41.
| 12
|
418 U.S. 461
94 S.Ct. 2842
41 L.Ed.2d 879
John W. WINGO, Warden, Petitioner,v.Carl James WEDDING.
No. 73—846.
Argued April 22, 1974.
Decided June 26, 1974.
Syllabus
Following enactment of the Federal Magistrates Act, the United States District Court for the Western District of Kentucky amended its Local Rule 16 to provide that in addition to submitting such other reports and recommendations as may be reequired concerning petitions for writs of habeas corpus from state prisoners the full-time magistrate shall 'schedule and hear evidentiary matters . . . (to be electronically recorded) deemed by the Magistrate to be necessary and proper in the determination of . . . such petition, and to report thereon with an appropriate recommendation for the disposition thereof to the District Judge (who) . . . (u)pon . . . request . . . shall proceed to hear the recording of the testimony . . . and give it de novo consideration.' Respondent, a state prisoner, whose petition for habeas corpus was assigned to a full-time Magistrate for processing, claimed that the Rule is invalid and filed a motion with the District Court that the Magistrate be disqualified from holding the habeas corpus hearing and that the hearing be assigned to a district judge. The District Court denied the motion; the Magistrate proceeded with the hearing; and thereafter he transmitted the electronic recording to the District Court along with his written findings and conclusions recommending dismissal. The District Court, following respondent's motion for a de novo hearing, listened to the recording, on the basis of which, together with the Magistrate's findings and conclusions, it dismissed the petition. The Court of Appeals reversed, holding that, notwithstanding a formal revision of the habeas corpus statute, 28 U.S.C. § 2243, the construction of the predecessor statute given in Holiday v. Johnson, 313 U.S. 342, 61 S.Ct. 1015, 85 L.Ed. 1392, still applied, to the effect that the statute plainly accorded a prisoner seeking habeas corpus relief the right of testifying before a judge. Held:
1. Title 28 U.S.C. § 2243, like its predecessor, Rev.Stat. § 761, requires that the district judge personally conduct evidentiary hearings in federal habeas corpus cases. Holiday v. Johnson, supra; United States v. Hayman, 342 U.S. 205, 231 n. 16, 72 S.Ct. 263, 269, 96 L.Ed. 232; Brown v. Allen, 344 U.S. 443, 462—463, 73 S.Ct. 397, 409—411, 97 L.Ed. 469. Pp. 468—469.
2. It is clear from the text and legislative history of the Magistrates Act that Congress did not intend to alter the requirements of 28 U.S.C. § 2243, and therefore Local Rule 16, insofar as it authorizes the full-time Magistrate to hold habeas corpus evidentiary hearings, is invalid because it is 'inconsistent with the . . . laws of the United States' under § 636(b) of the Act, and because § 636(b) itself precludes a district judge from assigning a magistrate the duty of conducting an evidentiary hearing and limits the magistrate's review to proposing, not holding, such a hearing. Pp. 469—473.
3. The invalidity of Local Rule 16 is not cured by the procedure relating to electronic recording, which does not enable the district judge to evaluate credibility by personally hearing and observing the witnesses. Pp. 473—474.
483 F.2d 1131, 6 Cir., affirmed.
James M. Ringo, Frankfort, Ky., for petitioner.
Joseph G. Glass, Louisville, Ky., for respondent.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
The question here is whether federal magistrates are authorized to conduct evidentiary hearings in federal habeas corpus cases. In 1968, Congress enacted the Federal Magistrates Act, 28 U.S.C. §§ 631—639, to upgrade and expand the former United States commissioner system. The Act authorizes magistrates to exercise all powers formerly exercised by United States commissioners,1 and also, as a means of relieving the caseload burden of the federal district judges, empowers magistrates to try minor offenses when all parties consent,2 and to perform such additional duties assigned by the district court as are 'not inconsistent with the Constitution and laws of the United States.'3 Pursuant to the Act, the Judges of the United States District Court for the Western District of Kentucky amended Local Rule 16 of that court to provide:
2
'In addition to submitting such other reports and recommendations as may be required concerning petitions for writs of habeas corpus from state prisoners, the full-time Magistrate is directed to schedule and hear evidentiary matters deemed by the Magistrate to be necessary and proper in the determination of each such petition, and to report thereon with an appropriate recommendation for the disposition thereof to the District Judge having jurisdiction of the case. The Magistrate shall cause the testimony of such hearing to be recorded on suitable electronic sound recording equipment. He shall submit his proposed findings of fact and conclusions of law to the proper Judge for his consideration, copies of which shall be provided at that time to the petitioner and respondent, and the Magistrate shall expeditiously transmit the proceedings, including the recording of the testimony, to the proper District Judge. Upon written request of either party, filed within ten days from the date such is so transmitted to the District Judge having jurisdiction thereof, the District Judge shall proceed to hear the recording of the testimony given at the evidentiary hearing and give it de novo consideration.' Respondent is a state prisoner whose petition for federal habeas corpus relief was assigned by the District Court to a full-time magistrate for processing under the rule. The part of the rule challenged here is that which directs the full-time magistrate 'to schedule and hear evidentiary matters (to be electronically recorded) deemed by the magistrate to be necessary and proper in the determination of . . . such petition, and to report thereon with an appropriate recommendation for the disposition thereof to the District Judge (who) . . . (u)pon . . . request . . . shall proceed to hear the recording of the testimony . . . and give it de novo consideration.' The question is whether this portion of the rule is invalid because 'inconsistent with the . . . laws of the United States' within the meaning of the Federal Magistrates Act, 28 U.S.C. § 636(b), or because § 636(b) itself should be construed to preclude district courts from assigning such duties to magistrates.
3
* Respondent, Carl James Wedding, is a prisoner in the Kentucky State Penitentiary serving a life sentence imposed in 1949 by the Webster Circuit Court, Commonwealth of Kentucky, after a plea of guilty to a charge of willful murder. Wedding filed this petition for habeas corpus in 1971. After the Court of Appeals for the Sixth Circuit reversed the initial dismissal of his petition, 456 F.2d 245 (1972), and remanded for an evidentiary hearing, the District Court invoked Local Rule 16 and assigned the case to a full-time Magistrate to hold the hearing. Wedding promptly moved that the Magistrate be disqualified and the hearing be reassigned to a District Judge, on the ground that the Federal Magistrates Act did not authorize district courts to assign to magistrates the duty to hold habeas corpus evidentiary hearings. When the District Court denied the motion, the Magistrate proceeded with the hearing, and electronically recorded all testimonial evidence as required by Local Rule 16. Thereafter, the Magistrate transmitted the recording of the testimony to the District Judge and submitted written findings of fact and conclusions of law recommending that the petition be dismissed.
4
Wedding moved that the District Court give the matter a de novo hearing. The District Judge's response was to listen, as authorized by Local Rule 16, to the recording of the hearing before the Magistrate. On this basis and the Magistrate's findings and conclusions, the District Court entered an order dismissing respondent's petition.
5
On appeal Wedding renewed his challenge to Local Rule 16, relying upon Holiday v. Johnston, 313 U.s. 342, 61 S.Ct. 1015, 85 L.Ed. 1392 (1941). Holiday was also a federal habeas corpus case. There, after determining that the petition for writ of habeas corpus alleged facts which, if proved, would entitle the petitioner to relief, the District Judge issued a writ compelling the respondent to produce the petitioner before a designated United States Commissioner. The Commissioner held an evidentiary hearing at which the petitioner testified and the respondent submitted the depositions of two witnesses. On the basis of the evidence received, the Commissioner made findings of fact and stated conclusions of law recommending that the writ be denied. After hearing oral argument on the Commissioner's report, the District Judge entered an order discharging the writ.
6
This Court reversed, holding that the factfinding procedure employed failed to conform to Congress' express command in the Habeas Corpus Act that '(t)he court, or justice, or judge shall proceed in a summary way to determine the facts of the case, by hearing the testimony and arguments, and thereupon to dispose of the party as law and justice require.' Rev.Stat. § 761, 28 U.S.C. § 461 (1940 ed.) (emphasis added). The Court held hat the statute plainly accords a prisoner the right of testifying before a judge, stating:
7
'One of the essential elements of the determination of the crucial facts is the weighing and appraising of the testimony. Plainly it was intended that the prisoner might invoke the exercise of this appraisal by the judge himself. We cannot say that an appraisal of the truth of the prisoner's oral testimony by a master or commissioner is, in the light of the purpose and object of the proceeding, the equivalent of the judge's own exercise of the function of the trier of the facts.
8
'The District Judge should himself have heard the prisoner's testimony and, in the light of it and the other testimony, himself have found the facts and based his disposition of the cause upon his findings.' Holiday v. Johnston, supra, at 352, 353—354, 61 S.Ct., at 1018.
9
Wedding contended that neither the text nor legislative history of the Federal Magistrates Act evidences a congressional intent to overrule Holiday. The Court of Appeals agreed and accordingly 'vacate(d) the judgment of dismissal and remand(ed) the case with instructions that the (District) Court itself hold an evidentiary hearing on (Wedding's) constitutional claims.' 483 F.2d 1131, 1137 (CA6 1973). We granted certiorari, 414 U.S. 1157, 94 S.Ct. 914, 39 L.Ed.2d 109 (1974). We affirm.4
II
10
Under our constitutional framework, the 'great constitutional privilege' of habeas corpus, Ex parte Bollman, 4 Cranch 75, 95, 2 L.Ed. 554 (1807) (Marshall, C.J.), has historically provided '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. 391, 401—402, 83 S.Ct. 822, 829, 8 L.Ed.2d 274 (1963). More often than not, claims of unconstitutional detention turn upon the resolution of contested issues of fact. Accordingly, since the Judiciary Act of February 5, 1867, c. 28, § 1, 14 Stat. 385, Congress has expressly vested plenary power in the federal courts 'for taking testimony and trying the facts anew in habeas hearings . . ..'5 Fay v. Noia, supra, at 416, 83 S.Ct., at 836. See also Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 756, 9 L.Ed.2d 770 (1963).
11
In connection with the 1948 revision and recodification of the Judicial Code,6 Rev.Stat. § 761, construed in Holiday, and other procedural provisions of the Habeas Corpus Act were consolidated into 28 U.S.C. § 2243. The pertinent portion covering habeas corpus evidentiary hearings provides that '(t)he court shall summarily hear and determine the facts, and dispose of the matter as law and justice require.' The Revisers thus deleted some words from Rev.Stat. § 761, but the Revisers' Notes accompanying § 2243, together with the reports of the Committee of the Judiciary of the Senate,7 and of the House,8 make abundantly clear that the word changes and omissions in Rev.Stat. § 761 were intended only as changes in form.9
12
Accordingly, the construction of § 2243, has been that given § 761 in Holiday. United States v. Hayman, 342 U.S. 205, 213 n. 16, 72 S.Ct. 263, 269, 96 L.Ed. 232 (1952); Brown v. Allen, 344 U.S. 443, 462—463, 73 S.Ct. 397, 409—411, 97 L.Ed. 469 (1953). The Court held in the latter case:
13
'A federal judge on a habeas corpus application is required to 'summarily hear and determine the facts, and dispose of the matter as law and justice require,' 28 U.S.C. § 2243. This has long been the law. R.S. § 761, old 28 U.S.C. § 461.' Ibid. (emphasis added).
III
14
Our inquiry is thus narrowed to the question whether the Federal Magistrates Act changed the requirement of § 2243 that federal judges personally conduct habeas corpus evidentiary hearings. Certainly nothing in the text or legislative history of the Magistrates Act suggests that Congress meant to change that requirement.10 Rather, both text and legislative history plainly reveal a congressional determination to retain the requirement. For, although the Act gives district judges broad authority to assign a wide range of duties to magistrates, Congress carefully circumscribed the permissible scope of assignment to only 'such additional duties as are not inconsistent with the Constitution and laws of the United States.' 28 U.S.C. § 636(b) (emphasis added). And in defining assignable duties, Congress decreed that the duty of holding evidentiary hearings was not assignable. This clearly emerges from the legislative history of subsection (3) of § 636(b), which provides:
15
'(3) preliminary review of applications for post-trial relief made by individuals convicted of criminal offenses, and submission of a report and recommendations to facilitate the decision of the district judge having jurisdiction over the case as to whether there should be a hearing.' (Emphasis added.)
16
That legislative history reveals that the Judicial Conference of the United States objected to successive phrasings of subsection (b)(3) until it was phrased to make clear that the authority given district courts to assign duties to magistrates did not include authority to hold evidentiary hearings on applications for posttrial relief.11 The original draft of the subsection12 had proposed that magistrates' duties include
17
'(3) preliminary consideration of applications for post-trial relief made by individuals convicted of criminal offenses.'
18
But because that language was susceptibel of the interpretation that magistrates might conduct evidentiary hearings, the Judicial Conference of the United States objected to it.13 Accordingly, the subsection was rewritten to provide for
19
'(3) preliminary review of applications for post-trial relief made by individuals convicted of criminal offenses, and submission of a report and recommendations to facilitate the decision of the district judge having jurisdiction over the case . . ..'
20
The Committee on the Administration of the Criminal Law of the Judicial Conference objected that the revision did not 'make it clear that it is the judge's responsibility to make the ultimate decisions and to hold hearings on such applications, rather than that of the magistrate.'14 The Committee therefore recommended the addition of the phrase 'as to whether there should be a hearing' immediately following the word 'case.'15 The proposed addition was made,16 and subsection (b)(3) in its present form was enacted. Thus, although § 636(b) provides that 'additional duties authorized by rule may include, but are not restricted to,' duties defined in subsection (b)(3), the legislative history of the subsection compels the conclusion that Congress made a deliberate choice to preclude district courts from assigning magistrates the duty to hold evidentiary hearings.
21
We conclude that, since § 2243 requires that the District Judge personally hold evidentiary hearings in federal habeas corpus cases, Local Rule 16, insofar as it authorizes the full-time magistrate to hold such hearings, is invalid because it is 'inconsistent with the . . . laws of the United States' under § 636(b). We conclude further that the Rule is to that extent invalid because, as we construe § 636(b), that section itself precludes district judges from assigning magistrates the duty of conducting evidentiary hearings.17 Review by magistrates of applications for post-trial relief is thus limited to review for the purpose of proposing, not holding, evidentiary hearings.18 In connection with the preliminary review whether or not to propose that the district judge hold an evidentiary hearing, we agree that magistrates may receive the state court record and all affidavits, stipulations, and other documents submitted by the parties.19 Magistrates are prohibited only from conducting the actual evidentiary hearings.20
22
The invalidity of Local Rule 16 is not cured by its provision that the 'District Judge shall proceed to hear the recording of the testimony given at the evidentiary hearing and give it de novo consideration.' Holiday reasoned that the command of § 761, now § 2243, was designed by Congress in recognition that '(o)ne of the essential elements of the determination of the crucial facts is the weighing and appraising of the testimony.' 313 U.S., at 352, 61 S.Ct., at 1018. 'To experienced lawyers it is commonplace that the outcome of a lawsuit—and hence the vindication of legal rights—depends more often on how the factfinder appraises the facts than on a disputed construction of a statute or interpretation of a line of precedents. Thus the procedures by which the facts of the case are determined assume an importance fully as great as the validity of the substantive rule of law to be applied.' Speiser v. Randall, 357 U.S. 513, 520, 78 S.Ct. 1332, 1339, 2 L.Ed.2d 1460 (1958). Congress, Holiday held, '(p)lainly . . . intended that the prisoner might invoke . . . appraisal by the judge himself.' In that circumstance, we 'cannot say that an appraisal of the truth of the prisoner's oral testimony' based on listening to a recording of it, 'is, in the light of the purpose and object of the proceeding, the equivalent of the judge's own exercise of the function of the trier of the facts.' 313 U.S., at 352, 61 S.Ct., at 1018.
23
Affirmed.
24
Mr. Chief Justice BURGER, with whom Mr. Justice WHITE joins, dissenting.
25
The Court today reads two separate statutes and our prior cases to reach a result contrary to the purposes underlying the enactment in 1968 of the Federal Magistrates Act, 28 U.S.C. § 631 et seq., and to the conclusion of every other Court of Appeals which has had occasion to consider the matter.1
26
The Federal Magistrates Act was both 'designed to create an upgraded lower tier judicial office,' S.Rep.No. 371, 90th Cong., 1st Sess., 11 (1967), and 'intended . . . to cull from the ever-growing workload of the U.S. district courts matters that are more desirably performed by a lower tier of judicial officers.' H.R.Rep.No. 1629, 90th Cong., 2d Sess., 12 (1968), U.S.Code Cong. & Admin.News, p. 4254. The Court's holding that federal magistrates may not conduct evidentiary hearings in federal habeas corpus cases is both inconsistent with the new status of magistrates and deputy magistrates,2 and serves to defeat the objective of the Act, described by Senator Tydings, its principal sponsor, see n. 2, supra, 'to provide district judges with more time to devote to the actual trial of cases and the writing of opinions.'3 Hearings 3.
27
* In its two-stage analysis, the Court finds first that under the terms of the Act it would be 'inconsistent with the . . . laws of the United States,' 28 U.S.C. § 636(b), to permit magistrates to conduct evidentiary hearings in habeas corpus cases. This is so, it is said, because a procedural provision of the Habeas Corpus Act, Rev.Stat. § 761, was construed 33 years ago, long before the enactment of the Magistrates Act, to confine that function to judges alone. Holiday v. Johnston, 313 U.S. 342, 61 S.Ct. 1015, 85 L.Ed. 1392 (1941). The 1948 revision and recodification of the Judicial Code, which incorporated Rev.Stat. § 761 into 28 U.S.C. § 2243, is held to have carried forward this limitation despite a critical language change. United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232 (1952); Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953). Neither the new statute, its drafting history, nor these latter cases, support the Court's conclusion.
28
Section 2243 did, as the Court notes, import into its terms Rev.Stat. § 761, both of which provisions set forth in part what authority shall hear and determine the facts involved in an application for a writ of habeas corpus. And § 2243 changed the language of Rev.Stat. § 761, which originally read that the authority was to be the 'court, or justice, or judge,' now to read simply the 'court.' But the Court fails to note that § 2243 incorporated a second provision from the Habeas Corpus Act, Rev.Stat. § 755, which in part set forth what authority shall issue the writ of habeas corpus for which application was made. The authority to issue the writ set forth in Rev.Stat. § 755 was identical to that set forth in Rev.Stat. § 761 to hear and determine the facts: the 'court, or justice, or judge.' Unlike the language of Rev.Stat. § 761, however, the quoted language of Rev.Stat. § 755 was incorporated into § 2243 substantially unchanged; under the present statute, it is the 'court, justice or judge' who shall issue the writ.
29
Congress sought to make certain that only a 'court, justice or judge' could issue the writ; but by changing the authority to hear the facts from a 'court, or justice, or judge' to, simply, a 'court,' Congress must have intended to broaden the authority of the court, at least to the extent of permitting delegation to a magistrate to perform the preliminary hearing function, subject always to the approval of a district judge.4 To read the language change in any other way would impute to Congress an intent to alter statutory language, the meaning of which had already been finally determined by this Court, Holiday v. Johnston, supra, without the knowledge that the alteration would raise interpretive difficulties. Moreover, to change the language of Rev.Stat. § 761, but not to change that of Rev.Stat. § 755, cannot be said, as the Court does, ante, at 469 n. 9, to be a '(m)ere change of phraseology,' for such changes were undertaken only for purposes of uniformity. If, as Charles J. Zinn, counsel to the Law Revision Committee which revised the Judicial Code, testified, 'we have changed the language to get a uniform style,'5 then within the same statutory provision, surely Congress would have made only 'courts' able to issue writs, as well as hear the facts of the claim.
30
Nor do the cases cited by the Court, ante, at 469, support its interpretation of § 2243. Brown v. Allen, supra, is plainly inapposite. The segment of Brown quoted by the Court is relevant to Brown's discussion of whether a petitioner under 28 U.S.C. § 2254 had a right to a plenary hearing although an earlier petition of his which presented substantially the same federal issues was refused in the state court. When the Court quotes from Brown: 'This has long been the law,' ante, at 469, it is referring to what the Brown Court called the 'general rule' approved in Salinger v. Loisel, 265 U.S. 224, 231, 44 S.Ct. 519, 521, 68 L.Ed. 989 (1924). Brown, 344 U.S., at 463, 73 S.Ct., at 410. Salinger in turn makes it clear that the 'general rule' which has 'long been the law' has nothing whatever to do with who may hear and determine the facts on an application for a writ of habeas corpus. Rather, it pertains only to that portion of § 2243 which Brown itself quoted, 344 U.S., at 462, 73 S.Ct. at 409, and which Salinger also quoted, 265 U.S., at 231, 44 S.Ct., at 521, that is, 'to dispose of (the matter or party) as law and justice (may) require.' In Salinger, this rule meant each application for a writ of habeas corpus could be disposed of in the exercise of judicial discretion, which could in part give controlling weight to 'a prior refusal (by a federal court) to discharge on a like application.' Ibid. In Brown, that rule was extended under certain circumstances to a prior state court refusal to issue the writ, in support of the Court's conclusion there that a § 2254 petitioner had no right to a plenary hearing on his application for the writ. The rule the Court relies on today is thus one of discretion to hold an evidentiary hearing 'as law and justice require,' which has no bearing on what official shall conduct the hearing once a decision is made to hold one. Brown is thus no authority for the proposition that the same limitation Holiday placed on Rev.Stat. § 761 ('court, or justice, or judge') applies to § 2243 ('court') enacted after Holiday.
31
The Court also relies upon United States v. Hayman, supra, to support its interpretation of § 2243. The issue in Hayman had nothing to do with who shall hear and determine facts upon an application for a writ of habeas corpus. Rather, the Court there was concerned solely with the question whether a district court may, upon an evidentiary hearing, decide factual issues presented by a motion under 28 U.S.C. § 2255, where the movant was not notified and was not present. In the context of discussing an earlier case which had held that a district court must decide material issues of fact by taking evidence, not by ex parte affidavits, Hayman dropped a footnote stating simply '(n)or can the factual issues be heard before a commissioner,' citing Holiday, supra, 342 U.S. at 213 n. 16, 72 S.Ct., at 269. Not only was this footnote completely irrelevant to the issue in Hayman, its citation to Holiday for support, without further discussion, makes manifest that the Court did not consider the effect of the subsequent language change in § 2243 on the statute (Rev.Stat. § 761) which Holiday construed. The fulfillment of the purposes of the Federal Magistrates Act should not hang on such a slim reed.
II
32
Even assuming that § 2243 was intended to carry forward the limitation of Holiday's interpretation of its predecessor, by enacting the Magistrates Act, and particularly § 636(b) thereof, Congress made clear its intent to eliminate that restriction. Thus, while Hayman may speak in terms of a 'commissioner,' Congress changed not only the title of that office, but also the qualifications for and the functions of the office.
33
Section 636(b) permits federal magistrates to 'be assigned . . . such additional duties as are not inconsistent with the Constitution and laws of the United States.' The section then sets forth in three subdivisions certain duties which district courts may authorize by rule, but the duties 'are not restricted to' those set forth. The third illustrative subdivision provides that district courts may authorize the additional duty of
34
'preliminary review of applications for posttrial relief made by individuals convicted of criminal offenses, and submission of a report and recommendations to facilitate the decision of the district judge having jurisdiction over the case as to whether there should be a hearing.' 28 U.S.C. § 636(b)(3).
35
Subdivision (3), suggesting additional duties that may be assigned to a magistrate in connection with federal habeas corpus cases, does not by its terms permit magistrates to conduct evidentiary hearings, but that subdivision is merely illustrative, not exclusive.
36
'The mention of these three categories is intended to illustrate the general character of duties assignable to magistrates under the act, rather than to constitute an exclusive specification of duties so assignable.' S.Rep.No.371, 90th Cong., 1st Sess., 25 (1967).
37
The House Report virtually tracks the language of the Senate Report. H.R.Rep.No.1629, 90th Cong., 2d Sess., 19 (1968). Thus, there being no constitutional barrier to permitting magistrates to conduct evidentiary hearings,6 nor any other legal barrier, see Part I, supra, § 636(b) enables district courts, as did the District Court here, to establish rules which so permit.
38
Assuming, arguendo, that § 2243 does constitute a possible legal barrier to such rules, the legislative history of the Act reveals Congress to have intended the elimination of that barrier. The Court determines, in the second stage of its analysis, ante, at 469—473, that Congress intended the opposite result, but in this matter the Court's perception is less than discriminating. The linchpin of the Court's argument is the drafting evolution of the terms of subdivison (3), quoted above. In the change of language from preliminary 'consideration' to preliminary 'review,'7 and in the addition of 'as to whether there should be a hearing,'8 the Court finds an intent to bar magistrates from conducting a hearing. But the language changes in the subdivision were made only due to a fear that magistrates would be thought to have been given final adjudicatory power, not to preclude them from conducting hearings when the district judges retained such power.9 Indeed, the latter was specifically intended. As the Senate Report stated, § 636(b)
39
'contemplates assignments to magistrates under circumstances where the ultimate decision of the case is reserved to the judge . . ..' S.Rep.No.371, 90th Cong., 1st Sess., 26 (1967).
40
The concern about enabling magistrates to make the ultimate decision found early expression in the Senate hearings on the bill in a colloquy between Senator Tydings and then Assistant Attorney General Vinson. Mr. Vinson ultimately revealed his real concern in a letter to the Subcommittee that subdivision (3) as originally drafted would give the power of ultimate decision to the magistrate: '(I)f preliminary consideration is intended to involve adjudication, it should be handled by an Article 3 Judge.' Hearings 130. That the Senate viewed Mr. Vinson's objections in this light is made clear by Senator Tydings' testimony in the hearings before a subcommittee of the House Judiciary Committee. Hearings on S. 945 et al. before Subcommittee No. 4 of the House Committee on the Judiciary, 90th Cong., 2d Sess., 72 (1968).
41
In response to this objection, Senator Tydings stated to Mr. Vinson at the Senate hearings:
42
'We wouldn't intend for the final decision to be made by the magistrate. But we would intend that . . . the magistrate (be able to) hold a preliminary (habeas) hearing . . .. We certainly intend that.' Hearings 112. (Emphasis added.)
43
Numerous other witnesses at the Senate hearings urged that the magistrates be permitted to hold hearings. See, e.g., id., at 52 (Chief Judge Northrop, supra, n. 3); id., at 94 (Chief Judge Walter E. Hoffman, of the Eastern District of Virginia).
44
As the Court points out, ante, at 470—471, the Judicial Conference objected to the original draft bill (S. 3475), but it did not originally object to subdivision (3), as the Court states. Instead, the Conference objected to § 636(b) altogether, fearing it so broad as to be subject to constitutional attack. Although not specified, it seems clear that by speaking in terms of 'delegation' the Conference initially shared Mr. Vinson's concern about delegating the ultimate decisionmaking power of Art. III judges. Hearings 241n. The Judicial Conference therefore recommended both a modified version of § 636(b), and the complete elimination of all three subdivisions. Ibid. When the revised draft bill (S. 945), which ultimately was enacted, was introduced, it did not follow the Judicial Conference recommendation, but continued to include the three subdivisions. As to subdivision (3), the Judicial Conference recommended the addition of the phrase 'as to whether there should be a hearing,' see n. 7, supra, but again stressed that is concern was, as with S. 3475, over the 'delegation to magistrates.' Hearings 245.
45
The tension established in this evolution is clear. On the one hand, Congress sought to enable district courts to authorize magistrates to conduct evidentiary hearings. On the other hand, there was apprehension that the power of authorization granted to district courts might lead to a rule permitting magistrates to exercise ultimate decisionmaking power reserved exclusively to Art. III judges. To avoid the latter but accomplish the former, Congress persisted in retaining the broad language of § 636(b), and in retaining subdivision (3). Not only, as set forth earlier, does the subdivision not limit the subsection, it was drafted in language to insure that it could not be read to preclude authorizing magistrates to conduct hearings in federal habeas corpus cases.10
46
Plainly, Congress could have used language that expressly precluded the latter. That this was not urged upon Congress by anyone, including the Judicial Conference, and that Congress did not include such language, alone suggests its intention to vest in district courts the power to authorize magistrates to hold hearings. Conversely, Congress would have taken certain risks had it expressly permitted magistrates to hold hearings, as revealed by the following colloquy between Chief Judge Hoffman and Senator Tydings at the Senate hearings:
47
'Judge Hoffman. . . . And I have suggested in my statement . . . that the Federal magistrate could be assigned the task as a master to conduct plenary hearings. After all, (habeas corpus proceedings) are civil proceedings . . . not criminal proceedings.
48
'Senator Tydings. (S)ince we . . . don't have (in § 636(b)) 'Including hearings' or 'Including plenary hearings' or 'including the conducting of plenary hearings,' it is not what we should have?
49
'Judge Hoffman. I am fearful that someone will say that this is merely an effort on the part of the judge to delegate his judicial function.
50
'Senator Tydings. I think that is a good point, Judge Hoffman.' Hearings 93—94.
51
In light of the need for Congress to avoid language suggesting an unconstitutional delegation of a judicial function to a magistrate, the ambiguous provision of § 636(b) unlimited by the provisions of subdivision (3)—should be interpreted to permit magistrates to conduct evidentiary hearings in federal habeas corpus cases, § 2243 notwithstanding, because (1) to the extent the subject was expressly discussed in the legislative history, such permission was intended, and (2) such an interpretation would serve the two principal objectives of the Act. See nn. 2 and 3, supra.
III
52
The final limitation of the Act, that additional duties assigned to magistrates must not be 'inconsistent with the Constitution,' needs little discussion here. The Court does not suggest that the conduct of an evidentiary hearing, where the district judge retains the power to make the final decision on an application for a writ of habeas corpus, would be unconstitutional either under Art. III or as a matter of due process of law. Where this situation obtains, the magistrate's conduct of the hearing would be clearly constitutional.11
53
Not only would his report and recommendation to the district judge be subject to amendment or outright rejection, the district judge could, at the behest of the habeas corpus petitioner or on his own motion, conduct his own evidentiary hearing to judge for himself, for example, the credibility of witnesses if he deems their testimony essential to disposition of the application. To the extent a problem of constitutional magnitude may be foreseen in the particulars of the rules established by a district court, those rules can be construed to comport with constitutional requirements. In any event, now that the Court has construed the Magistrates Act contrary to a clear legislative intent, it is for the Congress to act to restate its intentions if its declared objectives are to be carried out.
1
Commissioners had been empowered by the Federal Rules of Criminal Procedure to give oaths (Rule 3); issue arrest warrants (Rule 4); conduct preliminary examinations of arrestees (Rule 5); issue subpoenas (Rule 17); issue warrants of removal to another district (Rule 40); and release defendants on bail (Rule 46). In addition, commissioners were authorized to try persons accused of petty offenses (defined by 18 U.S.C. § 1(3) as crimes for which the penalty does not exceed imprisonment for six months or a fine of not more than $500 or both) committed within the confines of federal enclaves, 62 Stat. 830. In civil cases commissioners were limited to administering oaths and taking bail, acknowledgments, affidavits, and depositions. 62 Stat. 917.
2
Unlike the more restricted criminal trial jurisdiction of the former commissioners, see n. 1, supra, the authority of magistrates extends to minor offenses committed anywhere within the judicial district and includes crimes punishable by imprisonment not exceeding one year, or a fine of not more than $1,000, or both.
3
The Federal Magistrates Act, 28 U.S.C. § 636(b), provides:
'(b) Any district court of the United States, by the concurrence of a majority of all the judges of such district court, may establish rules pursuant to which any full-time United States magistrate, or, where there is no full-time magistrate reasonably available, any part-time magistrate specially designated by the court, may be assigned within the territorial jurisdiction of such court such additional duties as are not inconsistent with the Constitution and laws of the United States. The additional duties authorized by rule may include, but are not restricted to—
'(1) service as a special master in an appropriate civil action, pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States district courts;
'(2) assistance to a district judge in the conduct of pretrial or discovery proceedings in civil or criminal actions; and
'(3) preliminary review of applications for posttrial relief made by individuals convicted of criminal offenses, and submission of a report and recommendations to facilitate the decision of the district judge having jurisdiction over the case as to whether there should be a hearing.'
4
We thus agree with the Court of Appeals that this case does not require resolution of the question whether Congress constitutionally may enact legislation vesting authority, pursuant to rule or order of court, in magistrates to hold evidentiary hearings on habeas corpus petitions. We indicate no views as to the validity of investing such authority in a magistrate or other officer 'outside the pale of Article III of the Constitution.' 483 F.2d 1131, 1133 n. 1 (CA6 1973).
5
The relevant portion of the Judiciary Act of February 5, 1867, c. 28, § 1, 14 Stat. 385, provides that the 'court or judge shall proceed in a summary way to determine the facts of the case, by hearing testimony and the arguments of the parties interested, and if it shall appear that the petitioner is deprived of his or her liberty in contravention of the constitution or laws of the United States, he or she shall forthwith be discharged and set at liberty.'
6
62 Stat. 869.
7
S.Rep.No. 1559, 80th Cong., 2d Sess., 2 (1948).
8
H.R.Rep.No. 308, 80th Cong., 1st Sess., A178 (1947).
9
See also J. Moore, Commentary on the U.S. Judicial Code 436 n. 78 (1949); Payne v. Wingo, 442 F.2d 1192, 1194 (CA6 1971).
Had any substantive change in the meaning of Rev.Stat. § 761, as construed in Holiday v. Johnston, been intended, the Revisers' Notes would have called attention to the change. William W. Barron, the Chief Reviser of the Code, explained: '(N)o changes of law or policy will be presumed from changes of language in revision unless an intent to make such changes is clearly expressed. Mere changes of phraseology indicate no intent to work a change of meaning but merely an effort to state in clear and simpler terms the original meaning of the statute revised.' Barron, The Judicial Code 1948 Revision, 8 F.R.D. 439, 445—446. See also S.Rep.No. 1559, 80th Cong., 2d Sess., 2 (1948); H.R.Rep.No. 308, 80th Cong., 1st Sess., 7 (1947).
10
A full discussion of the legislative history of the Federal Magistrates Act will be found in TPO, Inc. v. McMillen, 460 F.2d 348 (CA7 1972).
11
Where Congress gave magistrates authority to conduct hearings, the authority was express and circumscribed with procedural safeguards. Thus 28 U.S.C. § 636(a)(3) gives magistrates jurisdiction to conduct trials for minor offenses, but 18 U.S.C. § 3401 provides that any person charged with a minor offense may elect to be tried by a district judge. Title 28 U.S.C. § 636(b)(1) authorizes magistrates to serve as special masters which frequently involves the conduct of hearings—but makes that service subject to the Federal Rules of Civil Procedure, which include the restrictions of Rule 53(b) that 'reference to a master shall be the exception and not the rule.' See Note, Developments in the Law—Federal Habeas Corpus. 83 Harv.L.Rev. 1038, 1189 n. 229 (1970).
12
S. 3475, Federal Magistrates Act of 1966, 89th Cong., 2d Sess. (1966).
13
See the Report of the Committee on the Administration of the Criminal Law, adopted by the Judicial Conference in September 1966, reprinted in the Hearings on S. 3475 and S. 945 before the Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the Judiciary, 89th Cong., 2d Sess. (1966) and 90th Cong., 1st Sess. (1967), pp. 241j, 241n.
14
See the Report of the Committee on the Administration of the Criminal Law, adopted by the Judicial Conference in March 1967, reprinted in the Hearings on S. 3475 and S. 945 before the Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the Judiciary, 89th Cong., 2d Sess. (1966) and 90th Cong., 1st Sess. (1967), pp. 244, 245.
15
Ibid.
16
S. 945, Federal Magistrates Act of 1967, 90th Cong., 1st Sess. (1967).
17
See Shapiro, Federal Habeas Corpus: A Study in Massachusetts, 87 Harv.L.Rev. 321, 364—365 (1973); Note, Developments in the Law—Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1188—1189 (1970).
18
'A qualified, experienced magistrate will, it is hoped, acquire an expertise in examining these (post-conviction review) applications and summarizing their important contents for the district judge, thereby facilitating his decisions. Law clerks are presently charged with this responsibility by many judges, but judges have noted that the normal 1-year clerkship does not afford law clerks the time or experience necessary to attain real efficiency in handling such applications.' S.Rep.No. 371, 90th Cong., 1st Sess., 26 (1967).
19
To the extent that O'Shea v. United States, 491 F.2d 774 (CA1 1974), and Noorlander v. Ciccone, 489 F.2d 642 (CA8 1973), suggest that magistrates may also accept oral testimony, provided that each party has the right to a de novo hearing before the district judge, we disagree. Such a procedure is precluded by both § 2243 and § 636(b).
20
Since under § 636(b) district judges may call upon magistrates to relieve them of most other details of the processing of habeas corpus applications, it does not appear that judges will be significantly overburdened by the requirement that they personally conduct evidentiary hearings. Indeed, data from the Administrative Office of the United States Courts indicate that very few habeas corpus cases ever reach the evidentiary hearing stage. In 1973, of the 10,800 prisoner petitions filed for habeas corpus or as 28 U.S.C. § 2255 motions to vacate sentence, less than 5%, or approximately 530, necessitated evidentiary hearings. See Report of the Director of the Administrative Office of United States Courts, Table C—2, p. 325, Table C—8, p. 383 (1973).
When hearings were required, 88% were completed in one day or less. Id., at 383. Thus, among the 400 District Judges, the burden of evidentiary hearings averages less than 1.5 hearing days per judge per year. To the extent that the 80 active Senior District Judges also participate in habeas corpus cases, the hearing burden upon each district judge is further reduced.
1
Two Circuits have ruled that federal magistrates may conduct evidentiary hearings in federal habeas corpus cases, O'Shea v. United States, 491 F.2d 774, 778 (CA1 1974); Noorlander v. Ciccone, 489 F.2d 642, 648 (CA8 1973); cf. Campbell v. U.S. District Court, 501 F.2d 196, 205 (CA9 1974), while two Circuits have assumed magistrates have that power, United States ex rel. Gonzalez v. Zelker, 477 F.2d 797, 798 (CA2 1973); Parnell v. Wainwright, 464 F.2d 735, 736 (CA5 1972).
2
The Court makes clear, ante, at 473 n. 18, that it sees the function of the magistrate in dealing with habeas corpus petitions as being no more than that previously performed by law clerks. As Chief Judge Theodore Levin, of the Eastern District of Michigan, testified before the Senate Judiciary Committee's Subcommittee on Improvements in Judicial Machinery, which under the chairmanship of Senator Joseph D. Tydings began the investigative hearings in 1965 which led to the enactment of the Act three years later, law clerks are not overworked, and are better able to perform such tasks. 'In any event, this is a somewhat tedious job . . . and is not a function likely to entice a seasoned and competent lawyer to accept a magistrate's job.' Hearings on S. 3475 and S. 945, 89th Cong., 2d Sess. (1966) and 90th Cong., 1st Sess. (1967), p. 61 (hereinafter Hearings). The Act specifically sought to make 'the position (of magistrate) more attractive to highly qualified individuals.' S.Rep.No. 371, 90th Cong., 1st Sess., 11 (1967). The Department of Justice agreed that such a limited function would be inconsistent with the Act's purpose, Hearings 130, and Chief Judge Robert C. Belloni and Dean Robert B. Yegge have noted that the magistrates 'should not be simply high-paid law clerks.' Reports of the Conference for District Court Judges, 59 F.R.D. 203, 221 (1973). To limit a magistrate to a law clerk's function surely undercuts what Senator Tydings stated to be '(t)he first goal of the Magistrates Act . . . to (give the magistrate) qualifications and a stature higher than those of the present U.S. commissioner.' Hearings 26.
3
No one would dispute the heavy burden on district courts represented by the applications for habeas corpus writs they receive, a large volume of which has been long recognized as 'repetitious and patently frivolous.' United States v. Hayman, 342 U.S. 205, 212, 72 S.Ct. 263, 268, 96 L.Ed. 232 (1952) (footnote omitted). The Court would minimize the burden of these applications at the evidentiary hearing stage, ante, at 473 n. 20, but the beguiling simplicity of its statistical analysis obscures reality and is antagonistic to the interests of habeas petitioners. First, to average hearing days per judge per year evenly across the country fails to recognize the uneven number of habeas corpus applications received by the various district courts. In his testimony at the Senate hearings on the bill Chief Judge Edward S. Northrop, of the District of Maryland, reflected the unevenness experienced by his court, which at one time handled more 'State prisoner habeas corpus petitions . . . than any other district in the country.' Hearings 52. Clearly Chief Judge Northrop's burden would have exceeded '1.5 hearing days . . . per year.' Second, the habeas corpus applications which ultimately reach the hearing stage do not represent all those which might warrant a hearing. Senator Tydings stated: 'We say that the magistrate should be able to (hold) plenary, discovery hearings. Now, what happens . . . as a practical matter, you get no hearings. The law clerk reviews the papers . . . so we are giving the individual (petitioner) actually an opportunity . . . for more consideration than he gets now.' Id., at 113.
Finally, even if no more applications would warrant an evidentiary hearing, given the other burdens on district judges those applications which would warrant hearings would receive more prompt attention if magistrates were to hold them. The virtues of speedy justice need not be elaborated here.
4
As noted in Part II, infra, it is not urged by anyone that the magistrate may finally decide facts after conducting an evidentiary hearing. That ultimate decision is, without question, one reserved to the district judge alone.
5
Hearings on H.R. 1600 and H.R. 2055, before Subcommittee No. 1 of the House Committee on the Judiciary, 80th Cong., 1st Sess., 40 (1947).
6
No such barrier is suggested by the Court today, and properly framed, district court rules which so permit would not contravene the constitutional rights of federal habeas corpus petitioners. See Part III, infra.
7
The two words were in fact used interchangeably in the legislative history. When the draft bill (S. 3475) used the word 'consideration,' the Subcommittee Staff Memorandum in support of the bill used the word 'review.' Hearings 34. When the draft bill was changed to use the word 'review,' the Senate Report accompanying the new bill (S. 945) used the word 'consideration.' S.Rep.No.371, 90th Cong., 1st Sess., 8 (1967).
8
Despite the addition of this language, the House Report, in setting forth the enumerated examples of § 636(b), stated of subdivision (3) only that '(m) agistrates may also be assigned the function of reviewing and reporting to district judges upon applications for postconviction relief.' H.R.Rep.No.1629, 90th Cong., 2d Sess., 19 (1968), U.S.Code Cong. & Admin.News, p. 4262. No limitation on the nature of the review or report was indicated. The language of the Senate Report also made no reference to decisions whether there should be hearings. S.Rep.No.371, supra, at 26.
9
The Court twice makes reference, ante, at 471 n. 11, and 471 n. 17, to Note, Developments in the Law—Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1188—1189, and n. 229 (1970), in support of its position. Both references are mistakenly addressed to final decisionmaking power, not the power to conduct hearings where the district judge makes the ultimate decision. The Note itself concedes that '(i)t is possible to argue (under § 636(b)) that a plan to have magistrates actually hear cases is valid under the Act.' Id., at 1189 n. 229. It then argues the other way in reference to matters as to which magistrates have final power of decision. See 28 U.S.C. § 636(a)(3). That is the only power of magistrates circumscribed by the procedures to which the Court refers, ante, at 470—471 n. 11. To the extent the Court goes beyond the Note and argues that magistrates' service as special masters, 28 U.S.C. § 636(b)(1), is limited by Fed.Rules Civ.Proc. 53(b), the early strictures upon employing special masters were developed before the existence of the judicial office of magistrate and arguably should not be applied to that new office. See generally Comment, An Adjudicative Role for Federal Magistrates in Civil Cases, 40 U.Chi.L.Rev. 584 (1973).
10
Even counsel for respondent agrees (contrary to the Court's conclusion, ante, at 470) that subdivision (3) 'could have been more clearly expressed.' Tr. of Oral Arg. 20.
11
The commentators have generally agreed with this conclusion. Shapiro, Federal Habeas Corpus: A Study in Massachusetts, 87 Harv.L.Rev. 321, 365 (1973); Peterson, The Federal Magistrate's Act: A New Dimension in the Implementation of Justice, 56 Iowa L.Rev. 62, 98 (1970); Doyle (District Judge and Chairman of the Judicial Conference Committee charged with implementing the Act), Implementing the Federal Magistrates Act, 39 J.B.A.Kan. 25, 69 (1970); Note, Proposed Reformation of Federal Habeas Corpus Procedure: Use of Federal Magistrates, 54 Iowa L.Rev. 1147 (1969). So, too, would the Judicial Conference appear to be in agreement. Proposed Amendments to the Proposed Rules Governing Habeas Corpus Proceedings for the United States District Courts, Committee on Rules of Practice and Procedure, Rule 11 (Preliminary Draft, Jan. 1973). Congress has given the magistrates power to conduct trials of a limited nature, 28 U.S.C. § 636(a)(3), which grant of power, carefully limited, appears not to contravene any constitutional prohibition. Cf. Palmore v. United States, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973). A fortiori granting magistrates the power to conduct hearings where the district judge retains ultimate decisionmaking authority comports with constitutional requirements. Cf. Campbell v. U.S. District Court, 501 F.2d 196 (CA9 1974) (hearings on motion to suppress); Harlem River Consumers Coop., Inc. v. Associated Grocers of Harlem, Inc., 54 F.R.D. 551 (SDNY 1972) (hearings on discovery motion).
| 01
|
418 U.S. 676
94 S.Ct. 3039
41 L.Ed.2d 1033
SECRETARY OF the NAVY, Appellant,v.Mark AVRECH.
No. 72—1713.
Argued Feb. 20, 1974.
Decided July 8, 1974.
Rehearing Denied Oct. 15, 1974.
See 419 U.S. 885, 95 S.Ct. 156.
Solicitor Gen. Robert H. Bork for appellant.
Dorian Bowman, New York City, for appellee.
PER CURIAM.
1
Appellee Mark Avrech was convicted by a special court-martial on charges of having violated Art. 80 of the Uniform Code of Military Justice, 10 U.S.C. § 880. The specification under Art. 80, which punishes attempts to commit offenses otherwise punishable under the UCMJ, charged an attempt to commit an offense under the first and second clauses of Art. 134, 10 U.S.C. § 934, namely, an attempt to publish a statement disloyal to the United States to members of the Armed Forces 'with design to promote disloyalty and disaffection among the troops.'
2
Upon conviction, appellee was sentenced to reduction in rank to the lowest enlisted grade, forfeiture of three months' pay, and confinement at hard labor for one month. The commanding officer suspended the confinement, but the remainder of the sentence was sustained by the Staff Judge Advocate and the Judge Advocate General of the Navy. Appellee was subsequently given a bad-conduct discharge after an unrelated second court-martial conviction.
3
In December 1970, appellee brought this action in the United States District Court for the District of Columbia, asserting jurisdiction under 5 U.S.C. §§ 701—706, 28 U.S.C. § 1331, and 28 U.S.C. § 1361. He claimed that Art. 134 was unconstitutionally vague and overbroad on its face and as applied, that his statement was protected speech, and that he was convicted without sufficient evidence of criminal intent. He sought an order declaring his Art. 80 conviction invalid and requiring the Secretary of the Navy to expunge any record of his conviction and to restore all pay and benefits lost because of the conviction. After the District Court denied relief, the Court of Appeals reversed, holding that Art. 134 is unconstitutionally vague. 155 U.S.App.D.C. 352, 477 F.2d 1237 (1973). We noted probable jurisdiction. 414 U.S. 816, 94 S.Ct. 64, 38 L.Ed.2d 48 (1973). Following oral argument on the merits, we directed counsel to file supplemental briefs on the issues of the jurisdiction of the District Court and the exhaustion of remedies.
4
Without the benefit of further oral argument, we are unwilling to decide the difficult jurisdictional issue which the parties have briefed. Assuming, arguendo, that the District Court had jurisdiction under the circumstances of this case to review the decision of the court-martial, our decision in Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), would require reversal of the Court of Appeals' decision on the merits of appellee's constitutional challenge to Art. 134. We believe that even the most diligent and zealous advocate could find his ardor somewhat dampened in arguing a jurisdictional issue where the decision on the merits is thus foreordained. We accordingly leave to a future case the resolution of the jurisdictional issue, and reverse the judgment of the Court of Appeals on the authority of Parker v. Levy, supra. See United States v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969); Schneckloth v. Bustamonte, 412 U.S. 218, 249, 93 S.Ct. 2041, 2059, 36 L.Ed.2d 854 (1973).
5
Judgment of Court of Appeals reversed.
6
Mr. Justice STEWART, concurring in the judgment.
7
I indicated my view in Parker v. Levy, 417 U.S. 733, 773, 94 S.Ct. 2547, 41 L.Ed.2d 439, that Art. 134 of the Uniform Code of Military Justice, 10 U.S.C. § 934, is unconstitutionally vague. However, my view did not prevail in Parker, where the Court upheld the general articles against constitutional attack. Given that result, which controls the merits of the appellee's substantive claims here, I agree that it would be inappropriate to require further argument of the jurisdictional issues in this case. Consequently, I am content to leave those issues for another day, and concur in the judgment of the Court.
8
Mr. Justice DOUGLAS, dissenting.
9
Appellee was convicted of an attempt to publish a statement disloyal to the United States to members of the Armed Forces 'with design to promote disloyalty and disaffection among the troops.' Article 80 of the Uniform Code of Military Justice, 10 U.S.C. § 880, covers the attempt; and Art. 134, 10 U.S.C. § 934, covers the substantive offense.
10
Appellee was on active duty in Vietnam in a combat zone and like most soldiers on night duty had a lot of time on his hands. He typed the following statement:
11
'It seems to me that the South Vietnamese people could do a little for the defense of their country. Why should we go out and fight their battles while they sit home and complain about communist aggression. What are we, cannon fodder or human beings? . . . The United States has no business over here. This is a conflict between two different politically minded groups. Not a direct attack on the United States. . . . We have peace talks with North Vietnam and the V.C. That's just fine and dandy except how many men died in Vietnam the week they argued over the shape of the table? . . . Do we dare express our feelings and opinions with the threat of court-martial perpetually hanging over our heads? Are your opinions worth risking a court-martial? We must strive for peace and if not peace than a complete U.S. withdrawal. We've been sitting ducks for too long. .. .'
12
His plan was to have the mimeograph operator make copies which he could distribute. But the operator instead turned it over to a superior officer and a court-martial followed. Appellee, a private first class, was reduced to the lowest enlisted grade, deprived of three months' pay, and confined for one month to hard labor. The commanding officer suspended the confinement, and the remainder of the sentence was sustained on review. This suit, asserting federal rights, was brought on the ground, among other things, that he was punished for protected speech. I think that claim has merit; and I would affirm the Court of Appeals.
13
Soldiers, lounging around, speak carefully of officers who are within earshot. But in World War I we were free to lambast General 'Black Jack' Pershing who was distant, remote, and mythical. We also groused about the bankers' war, the munitions makers' war in which we had volunteered. What we said would have offended our military superiors. But since we could write our Congressmen or Senators about it, we saw no reason why we could not talk it out among ourselves.
14
Talk is, of course, incitement; but not all incitement leads to action. What appellee in this case wrote out with the purpose of showing to the marines in his unit, might, if released, have created only revulsion. Or it might have produced a strong reaction. Conceivably more might have shared his views. But he was not setting up a rendezvous for all who wanted to go AWOL or laying a dark plot against his superior officers. He was attempting to speak with his comrades in arms about the oppressive nature of the war they were fighting. His attempt, if successful, might at best have resulted in letters to his family or Congressman or Senators who might have read what he said to local people or have published the letters in newspapers or made them the subject of debate in legislative halls.
15
Secrecy and suppression of views which the Court today sanctions increases rather than repels the dangers of the world in which we live. I think full dedication to the spirit of the First Amendment is the real solvent of the dangers and tensions of the day. That philosophy may be hostile to many military minds. But it is time the Nation made clear that the military is not a system apart but lives under a Constitution that allows discussion of the great issues of the day, not merely the trivial ones—subject to limitations as to time, place, or occasion but never as to control.
16
The steps we take in Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439, and in this case are backward steps measured by the standards of an open society.*
17
I dissent from a reversal of this judgment.
18
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
19
The Court's decison in Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), establishes that the Court of Appeals erred in overturning appellee's court-martial conviction on the basis of the unconstitutional vagueness of Art. 134. In these circumstances, I agree that this case does not present an appropriate vehicle for this Court's consideration of the substantial jurisdictional issues presented. Appellee also claimed, however, that Arts. 80 and 134, as applied to his case, infringed his First Amendment rights, claims rejected by the District Court but never passed upon by the Court of Appeals because of that court's holding as to the vagueness of Art. 134. See 155 U.S.App.D.C. 352, 354, 477 F.2d 1237, 1239 (1973). I think it inappropriate for this Court to pass on these claims without the benefit of the Court of Appeals' consideration in the first instance. I would therefore vacate the judgment of the Court of Appeals and remand for reconsideration of the jurisdictional questions and the merits in light of Parker v. Levy.
*
J. Robert Oppenheimer, cruelly cast into the outer darkness by the Atomic Energy Commission in its notorious 'witch hunt,' said on Edward R. Murrow's TV show 'See It Now' in January 1955:
'The trouble with secrecy is that it denies to the government itself the wisdom and the resources of the whole community, of the whole country, and the only way you can do this is to let almost anyone say what he thinks—to try to give the best synopses, the best popularizations, the best mediations of technical things that you can, and to let men deny what they think is false—argue what they think is false, you have to have a free and uncorrupted communication.
'And this is—this is so the heart of living in a complicated technological world—it is so the heart of freedom that that is why we are all the time saying, 'Does this really have to be secret?' 'Couldn't you say more about that?' 'Are we really acting in a wise way?' Not because we enjoy chattering—not because we are not aware of the dangers of the world we live in, but because these dangers cannot be met in any other ways.
'The fact is, our govenment cannot do without us—all of us.' C. Curtis, The Oppenheimer Case, The Trial of a Security System 181 (1955).
| 12
|
418 U.S. 683
94 S.Ct. 3090
41 L.Ed.2d 1039
UNITED STATES, Petitioner,v.Richard M. NIXON, President of the United States, et al. Richard M. NIXON, President of the United States, Petitioner, v. UNITED STATES.
Nos. 73—1766, 73—1834.
Argued July 8, 1974.
Decided July 24, 1974.
Syllabus
Following indictment alleging violation of federal statutes by certain staff members of the White House and political supporters of the President, the Special Prosecutor filed a motion under Fed.Rule Crim.Proc. 17(c) for a subpoena duces tecum for the production before trial of certain tapes and documents relating to precisely identified conversations and meetings between the President and others. The President, claiming executive privilege, filed a motion to quash the subpoena. The District Court, after treating the subpoenaed material as presumptively privileged, concluded that the Special Prosecutor had made a sufficient showing to rebut the presumption and that the requirements of Rule 17(c) had been satisfied. The court thereafter issued an order for an in camera examination of the subpoenaed material, having rejected the President's contentions (a) that the dispute between him and the Special Prosecutor was nonjusticiable as an 'intra-executive' conflict and (b) that the judiciary lacked authority to review the President's assertion of executive privilege. The court stayed its order pending appellate review, which the President then sought in the Court of Appeals. The Special Prosecutor then filed in this Court a petition for a writ of certiorari before judgment (No. 73—1766) and the President filed a cross-petition for such a writ challenging the grand-jury action (No. 73—1834) The Court granted both petitions. Held:
1. The District Courts order was appealable as a 'final' order under 28 U.S.C. § 1291, was therefore properly 'in' the Court of Appeals, 28 U.S.C. § 1254, when the petition for certiorari before judgment was filed in this Court, and is now properly before this Court for review. Although such an order is normally not final and subject to appeal, an exception is made in a 'limited class of cases where denial of immediate review would render impossible any review whatsoever of an individual's claims.' United States v. Ryan, 402 U.S. 530, 533, 91 S.Ct. 1580, 1582, 29 L.Ed.2d 85. Such an exception is proper in the unique circumstances of this case where it would be inappropriate to subject the President to the procedure of securing review by resisting the order and inappropriate to require that the District Court proceed by a traditional contempt citation in order to provide appellate review. Pp. 690—692.
2. The dispute between the Special Prosecutor and the President presents a justiciable controversy. Pp. 692—697.
(a) The mere assertion of an 'intrabranch dispute,' without more, does not defeat federal jurisdiction. United States v. ICC, 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451. P. 693.
(b) The Attorney General by regulation has conferred upon the Special Prosecutor unique tenure and authority to represent the United States and has given the Special Prosecutor explicit power to contest the invocation of executive privilege in seeking evidence deemed relevant to the performance of his specially delegated duties. While the regulation remains in effect, the Executive Branch is bound by it. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681. Pp. 694 696.
(c) The action of the Special Prosecutor within the scope of his express authority seeking specified evidence preliminarily determined to be relevant and admissible in the pending criminal case, and the President's assertion of privilege in opposition thereto, present issues 'of a type which are traditionally justiciable,' United States v. ICC, supra, 337 U.S., at 430, 69 S.Ct., at 1413, and the fact that both litigants are officers of the Executive Branch is not a bar to justiciability. Pp. 696—697.
3. From this Court's examination of the material submitted by the Special Prosecutor in support of his motion for the subpoena, much of which is under seal, it is clear that the District Court's denial of the motion to quash comported with Rule 17(c) and that the Special Prosecutor has made a sufficient showing to justify a subpoena for production before trial. Pp. 697—702.
4. Neither the doctrine of separation of powers nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute unqualified presidential privilege of immunity from judicial process under all circumstances. See, e.g., Murbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60; Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 706, 7 L.Ed.2d 663. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, the confidentiality of presidential communications is not significantly diminished by producing material for a criminal trial under the protected conditions of in camera inspection, and any absolute executive privilege under Art. II of the Constitution would plainly conflict with the function of the courts under the Constitution. Pp. 703 707.
5. Although the courts will afford the utmost deference to presidential acts in the performance of an Art. II function, United States v. Burr, 25 F.Cas. pp. 187, 190, 191—192 (No. 14,694), when a claim of presidential privilege as to materials subpoenaed for use in a criminal trial is based, as it is here, not on the ground that military or diplomatic secrets are implicated, but merely on the ground of a generalized interest in confidentiality, the President's generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial and the fundamental demands of due process of law in the fair administration of criminal justice. Pp. 707—713.
6. On the basis of this Court's examination of the record, it cannot be concluded that the District Court erred in ordering in camera examination of the subpoenaed material, which shall now forthwith be transmitted to the District Court. Pp. 713—714.
7. Since a President's communications encompass a vastly wider range of sensitive material than would be true of an ordinary individual, the public interest requires that presidential confidentiality be afforded the greatest protection consistent with the fair administration of justice, and the District Court has a heavy responsibility to ensure that material involving presidential conversations irrelevant to or inadmissible in the criminal prosecution be accorded the high degree of respect due a President and that such material be returned under seal to its lawful custodian. Until released to the Special Prosecutor no in camera material is to be released to anyone. Pp. 714—716.
No. 73—1766, 377 F.Supp. 1326, affirmed; No. 73—1834, certiorari dismissed as improvidently granted.
Leon Jaworski and Philip A. Lacovara, Washington, D.C., for United States.
James D. St. Clair, Washington, D.C., for the President.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
This litigation presents for review the denial of a motion, filed in the District Court on behalf of the President of the United States, in the case of United States v. Mitchell et al. (D.C.Crim. No. 74—110), to quash a third-party subpoena duces tecum issued by the United States District Court for the District of Columbia, pursuant to Fed.Rule Crim.Proc. 17(c). The subpoena directed the President to produce certain tape recordings and documents relating to his conversations with aides and advisers. The court rejected the President's claims of absolute executive privilege, of lack of jurisdiction, and of failure to satisfy the requirements of Rule 17(c). The President appealed to the Court of Appeals. We granted both the United States' petition for certiorari before judgment (No. 73—1766),1 and also the President's cross-petition for certiorari before judgment (No. 73—1834),2 because of the public importance of the issues presented and the need for their prompt resolution 417 U.S. 927 and 960, 94 S.Ct. 2637 and 3162, 41 L.Ed.2d 231 (1974).
2
On March 1, 1974, a grand jury of the United States District Court for the District of Columbia returned an indictment charging seven named individuals3 with various offenses, including conspiracy to defraud the United States and to obstruct justice. Although he was not designated as such in the indictment, the grand jury named the President, among others, as an unindicted coconspirator.4 On April 18, 1974, upon motion of the Special Prosecutor, see n. 8, infra, a subpoena duces tecum was issued pursuant to Rule 17(c) to the President by the United States District Court and made returnable on May 2, 1974. This subpoena required the production, in advance of the September 9 trial date, of certain tapes, memoranda, papers, transcripts or other writings relating to certain precisely identified meetings between the President and others.5 The Special Prosecutor was able to fix the time, place, and persons present at these discussions because the White House daily logs and appointment records had been delivered to him. On April 30, the President publicly released edited transcripts of 43 conversations; portions of 20 conversations subject to subpoena in the present case were included. On May 1, 1974, the President's counsel, filed a 'special appearance' and a motion to quash the subpoena under Rule 17(c). This motion was accompanied by a formal claim of privilege. At a subsequent hearing,6 further motions to expunge the grand jury's action naming the President as an unindicted coconspirator and for protective orders against the disclosure of that information were filed or raised orally by counsel for the President.
3
On May 20, 1974, the District Court denied the motion to quash and the motions to expunge and for protective orders. 377 F.Supp. 1326. It further ordered 'the President or any subordinate officer, official, or employee with custody or control of the documents or objects subpoenaed,' id., at 1331 to deliver to the District Court, on or before May 31, 1974, the originals of all subpoenaed items, as well as an index and analysis of those items, together with tape copies of those portions of the subpoenaed recordings for which transcripts had been released to the public by the President on April 30. The District Court rejected jurisdictional challenges based on a contention that the dispute was nonjusticiable because it was between the Special Prosecutor and the Chief Executive and hence 'intra-executive' in character; it also rejected the contention that the Judiciary was without authority to review an assertion of executive privilege by the President. The court's rejection of the first challenge was based on the authority and powers vested in the Special Prosecutor by the regulation promulgated by the Attorney General; the court concluded that a justiciable controversy was presented. The second challenge was held to be foreclosed by the decision in Nixon v. Sirica, 159 U.S.App.D.C. 58, 487 F.2d 700 (1973).
4
The District Court held that the judiciary, not the President, was the final arbiter of a claim of executive privilege. The court concluded that under the circumstances of this case the presumptive privilege was overcome by the Special Prosecutor's prima facie 'demonstration of need sufficiently compelling to warrant judicial examination in chambers . . ..' 377 F.Supp., at 1330. The court held, finally, that the Special Prosecutor had satisfied the requirements of Rule 17(c). The District Court stayed its order pending appellate review on condition that review was sought before 4 p.m., May 24. The court further provided that matters filed under seal remain under seal when transmitted as part of the record.
5
On May 24, 1974, the President filed a timely notice of appeal from the District Court order, and the certified record from the District Court was docketed in the United States Court of Appeals for the District of Columbia Circuit. On the same day, the President also filed a petition for writ of mandamus in the Court of Appeals seeking review of the District Court order.
6
Later on May 24, the Special Prosecutor also filed, in this Court, a petition for a writ of certiorari before judgment. On May 31, the petition was granted with an expedited briefing schedule, 417 U.S. 927, 94 S.Ct. 2637, 41 L.Ed.2d 231. On June 6, the President filed, under seal, a cross-petition for writ of certiorari before judgment. This cross-petition was granted June 15, 1974, 417 U.S. 960, 94 S.Ct. 3162, 41 L.Ed.2d 1134, and the case was set for argument on July 8, 1974.
7
* JURISDICTION
8
The threshold question presented is whether the May 20, 1974, order of the District Court was an appealable order and whether this case was properly 'in' the Court of Appeals when the petition for certiorari was filed in this Court. 28 U.S.C. § 1254. The Court of Appeals' jurisdiction under 28 U.S.C. § 1291 encompasses only 'final decisions of the district courts.' Since the appeal was timely filed and all other procedural requirements were met, the petition is properly before this Court for consideration if the District Court order was final. 28 U.S.C. §§ 1254(1), 2101(e).
9
The finality requirement of 28 U.S.C. § 1291 embodies a strong congressional policy against piecemeal reviews, and against obstructing or impeding an ongoing judicial proceeding by interlocutory appeals. See, e.g., Cobbledick v. United States, 309 U.S. 323, 324—326, 60 S.Ct. 540, 541—542, 84 L.Ed. 783 (1940). This requirement ordinarily promotes judicial efficiency and hastens the ultimate termination of litigation. In applying this principle to an order denying a motion to quash and requiring the production of evidence pursuant to a subpoena duces tecum, it has been repeatedly held that the order is not final and hence not appealable. United States v. Ryan, 402 U.S. 530, 532, 91 S.Ct. 1580, 1581, 29 L.Ed.2d 85 (1971); Cobbledick v. United States, supra; Alexander v. United States, 201 U.S. 117, 26 S.Ct. 356, 50 L.Ed. 686 (1906). This Court has
10
'consistently held that the necessity for expedition in the administration of the criminal law justifies putting one who seeks to resist the production of desired information to a choice between compliance with a trial court's order to produce prior to any review of that order, and resistance to that order with the concomitant possibility of an adjudication of contempt if his claims are rejected on appeal.' United States v. Ryan, supra, 402 U.S., at 533, 91 S.Ct., at 1582.
11
The requirement of submitting to contempt, however, is not without exception and in some instances the purposes underlying the finality rule require a different result. For example, in Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 (1918), a subpoena had been directed to a third party requesting certain exhibits; the appellant, who owned the exhibits, sought to raise a claim of privilege. The Court held an order compelling production was appealable because it was unlikely that the third party would risk a contempt citation in order to allow immediate review of the appellant's claim of privilege. Id., at 12—13, 38 S.Ct. at 419—420. That case fell within the 'limited class of cases where denial of immediate review would render impossible any review whatsoever of an individual's claims.' United States v. Ryan, supra, 402 U.S., at 533, 91 S.Ct., at 1582.
12
Here too, the traditional contempt avenue to immediate appeal is peculiarly inappropriate due to the unique setting in which the question arises. To require a President of the United States to place himself in the posture of disobeying an order of a court merely to trigger the procedural mechanism for review of the ruling would be unseemly, and would present an unnecessary occasion for constitutional confrontation between two branches of the Government. Similarly, a federal judge should not be placed in the posture of issuing a citation to a President simply in order to invoke review. The issue whether a President can be cited for contempt could itself engender protracted litigation, and would further delay both review on the merits of his claim of privilege and the ultimate termination of the underlying criminal action for which his evidence is sought. These considerations lead us to conclude that the order of the District Court was an appealable order. The appeal from that order was therefore properly 'in' the Court of Appeals, and the case is now properly before this Court on the writ of certiorari before judgment. 28 U.S.C. § 1254; 28 U.S.C. § 2101(e). Gay v. Ruff, 292 U.S. 25, 30, 54 S.Ct. 608, 610, 78 L.Ed. 1099 (1934).7
II
JUSTICIABILITY
13
In the District Court, the President's counsel argued that the court lacked jurisdiction to issue the subpoena because the matter was an intra-branch dispute between a subordinate and superior officer of the Executive Branch and hence not subject to judicial resolution. That argument has been renewed in this Court with emphasis on the contention that the dispute does not present a 'case' or 'controversy' which can be adjudicated in the federal courts. The President's counsel argues that the federal courts should not intrude into areas committed to the other branches of Government. He views the present dispute as essentially a 'jurisdictional' dispute within the Executive Branch which he analogizes to a dispute between two congressional committees. Since the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case, Confiscation Cases, 7 Wall. 454, 19 L.Ed. 196 (1869); United States v. Cox, 342 F.2d 167, 171 (CA5), cert. denied sub nom. Cox v. Hauberg, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965), it is contended that a President's decision is final in determining what evidence is to be used in a given criminal case. Although his counsel concedes that the President has delegated certain specific powers to the Special Prosecutor, he has not 'waived nor delegated to the Special Prosecutor the President's duty to claim privilege as to all materials . . . which fall within the President's inherent authority to refuse to disclose to any executive officer.' Brief for the President 42. The Special Prosecutor's demand for the items therefore presents, in the view of the President's counsel, a political question under Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), since it involves a 'textually demonstrable' grant of power under Art. II.
14
The mere assertion of a claim of an 'intra-branch dispute,' without more, has never operated to defeat federal jurisdiction; justiciability does not depend on such a surface inquiry. In United States v. ICC, 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451 (1949), the Court observed, 'courts must look behind names that symbolize the parties to determine whether a justiciable case or controversy is presented.' Id., at 430, 69 S.Ct., at 1413. See also Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969); ICC v. Jersey City, 322 U.S. 503, 64 S.Ct. 1129, 88 L.Ed. 1420 (1944); United States ex rel. Chapman v. FPC, 345 U.S. 153, 73 S.Ct. 609, 97 L.Ed. 918 (1953); Secretary of Agriculture v. United States, 347 U.S. 645, 74 S.Ct. 826, 98 L.Ed. 1015 (1954); FMB v. Isbrandtsen Co., 356 U.S. 481, 483 n. 2, 78 S.Ct. 851, 853, 2 L.Ed.2d 926 (1958); United States v. Marine Bancorporation Inc., 418 U.S. 602, 94 S.Ct. 2856, 41 L.Ed.2d 978; and United States v. Connecticut National Bank, 418 U.S. 656, 94 S.Ct. 2788, 41 L.Ed.2d 1016.
15
Our starting point is the nature of the proceeding for which the evidence is sought—here a pending criminal prosecution. It is a judicial proceeding in a federal court alleging violation of federal laws and is brought in the name of the United States as sovereign. Verger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). Under the authority of Art. II, § 2, Congress has vested in the Attorney General the power to conduct the criminal litigation of the United States Government. 28 U.S.C. § 516. It has also vested in him the power to appoint subordinate officers to assist him in the discharge of his duties. 28 U.S.C. §§ 509, 510, 515, 533. Acting pursuant to those statutes, the Attorney General has delegated the authority to represent the United States in these particular matters to a Special Prosecutor with unique authority and tenure.8 The regulation gives the Special Prosecutor explicit power to contest the invocation of executive privilege in the process of seeking evidence deemed relevant to the performance of these specially delegated duties.9 38 Fed.Reg. 30739, as amended by 38 Fed.Reg. 32805.
16
So long as this regulation is extant it has the force of law. In United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954), regulations of the Attorney General delegated certain of his discretionary powers to the Board of Immigration Appeals and required that Board to exercise its own discretion on appeals in deportation cases. The Court held that so long as the Attorney General's regulations remained operative, he denied himself the authority to exercise the discretion delegated to the Board even though the original authority was his and he could reassert it by amending the regulations. Service v. Dulles, 354 U.S. 363, 388, 77 S.Ct. 1152, 1165, 1 L.Ed.2d 1403 (1957), and Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959), reaffirmed the basic holding of Accardi.
17
Here, as in Accardi, it is theoretically possible for the Attorney General to amend or revoke the regulation defining the Special Prosecutor's authority. But he has not done so.10 So long as this regulation remains in force the Executive Branch is bound by it, and indeed the United States as the sovereign composed of the three branches is bound to respect and to enforce it. Moreover, the delegation of authority to the Special Prosecutor in this case is not an ordinary delegation by the Attorney General to a subordinate officer: with the authorization of the President, the Acting Attorney General provided in the regulation that the Special Prosecutor was not to be removed without the 'consensus' of eight designated leaders of Congress. N. 8, supra.
18
The demands of and the resistance to the subpoena present an obvious controversy in the ordinary sense, but that alone is not sufficient to meet constitutional standards. In the constitutional sense, controversy means more than disagreement and conflict; rather it means the kind of controversy courts traditionally resolve. Here at issue is the production or nonproduction of specified evidence deemed by the Special Prosecutor to be relevant and admissible in a pending criminal case. It is sought by one official of the Executive Branch within the scope of his express authority; it is resisted by the Chief Executive on the ground of his duty to preserve the confidentiality of the communications of the President. Whatever the correct answer on the merits, these issues are 'of a type which are traditionally justiciable.' United States v. ICC, 337 U.S., at 430, 69 S.Ct., at 1413. The independent Special Prosecutor with his asserted need for the subpoenaed material in the underlying criminal prosecution is opposed by the President with his steadfast assertion of privilege against disclosure of the material. This setting assures there is 'that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions'. Baker v. Carr, 369 U.S., at 204, 82 S.Ct., at 703. Moreover, since the matter is one arising in the regular course of a federal criminal prosecution, it is within the traditional scope of Art. III power. Id., at 198, 82 S.Ct. 691.
19
In light of the uniqueness of the setting in which the conflict arises, the fact that both parties are officers of the Executive Branch cannot be viewed as a barrier to justiciability. It would be inconsistent with the applicable law and regulation, and the unique facts of this case to conclude other than that the Special Prosecutor has standing to bring this action and that a justiciable controversy is presented for decision.
III
Rule 17(c)
20
The subpoena duces tecum is challenged on the ground that the Special Prosecutor failed to satisfy the requirements of Fed.Rule Crim.Proc. 17(c), which governs the issuance of subpoenas duces tecum in federal criminal proceedings. If we sustained this challenge, there would be no occasion to reach the claim of privilege asserted with respect to the subpoenaed material. Thus we turn to the question whether the requirements of Rule 17(c) have been satisfied. See Arkansas Louisiana Gas Co. v. Dept. of Public Utilities, 304 U.S. 61, 64, 58 S.Ct. 770, 771, 82 L.Ed. 1149 (1938); Ashwander v. TVA, 297 U.S. 288, 346—347, 56 S.Ct. 466, 482—483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring).
Rule 17(c) provides:
21
'A subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein. The court on motion made promptly may quash or modify the supoena if compliance would be unreasonable or oppressive. The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys.'
22
A subpoena for documents may be quashed if their production would be 'unreasonable or oppressive,' but not otherwise. The leading case in this Court interpreting this standard is Bowman Dairy Co. v. United States, 341 U.S. 214, 71 S.Ct. 675, 95 L.Ed. 879 (1951). This case recognized certain fundamental characteristics of the subpoena duces tecum in criminal cases: (1) it was not intended to provide a means of discovery for criminal cases, id., at 220, 71 S.Ct. 675; (2) its chief innovation was to expedite the trial by providing a time and place before trial for the inspection of subpoenaed materials,11 ibid. As both parties agree, cases decided in the wake of Bowman have generally followed Judge Weinfeld's formulation in United States v. Iozia, 13 F.R.D. 335, 338 (SDNY 1952), as to the required showing. Under this test, in order to require production prior to trial, the moving party must show: (1) that the documents are evidentiary12 and relevent; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general 'fishing expedition.'
23
Against this background, the Special Prosecutor, in order to carry his burden, must clear three hurdles: (1) relevancy; (2) admissibility; (3) specificity. Our own review of the record necessarily affords a less comprehensive view of the total situation than was available to the trial judge and we are unwilling to conclude that the District Court erred in the evaluation of the Special Prosecutor's showing under Rule 17(c). Our conclusion is based on the record before us, much of which is under seal. Of course, the contents of the subpoenaed tapes could not at that stage be described fully by the Special Prosecutor, but there was a sufficient likelihood that each of the tapes contains conversations relevant to the offenses charged in the indictment. United States v. Gross, 24 F.R.D. 138 (SDNY 1959). With respect to many of the tapes, the Special Prosecutor offered the sworn testimony or statements of one or more of the participants in the conversations as to what was said at the time. As for the remainder of the tapes, the identity of the participants and the time and place of the conversations, taken in their total context, permit a rational inference that at least part of the conversations relate to the offenses charged in the indictment.
24
We also conclude there was a sufficient preliminary showing that each of the subpoenaed tapes contains evidence admissible with respect to the offenses charged in the indictment. The most cogent objection to the admissibility of the taped conversations here at issue is that they are a collection of out-of-court statements by declarants who will not be subject to cross-examination and that the statements are therefore inadmissible hearsay. Here, however, most of the tapes apparently contain conversations to which one or more of the defendants named in the indictment were party. The hearsay rule does not automatically bar all out-of-court statements by a defendant in a criminal case.13 Declarations by one defendant may also be admissible against other defendants upon a sufficient showing, by independent evidence,14 of a conspiracy among one or more other defendants and the delarant and if the declarations at issue were in furtherance of that conspiracy. The same is true of declarations of coconspirators who are not defendants in the case on trial. Dutton v. Evans, 400 U.S. 74, 81, 91 S.Ct. 210, 215, 27 L.Ed.2d 213 (1970). Recorded conversations may also be admissible for the limited purpose of impeaching the credibility of any defendant who testifies or any other coconspirator who testifies. Generally, the need for evidence to impeach witnesses is insufficient to require its production in advance of trial. See, e.g., United States v. Carter, 15 F.R.D. 367, 371 (DC 1954). Here, however, there are other valid potential evidentiary uses for the same material, and the analysis and possible transcription of the tapes may take a significant period of time. Accordingly, we cannot conclude that the District Court erred in authorizing the issuance of the subpoena duces tecum.
25
Enforcement of a pretrial subpoena duces tecum must necessarily be committed to the sound discretion of the trial court since the necessity for the subpoena most often turns upon a determination of factual issues. Without a determination of arbitrariness or that the trial court finding was without record support, an appellate court will not ordinarily disturb a finding that the applicant for a subpoena complied with Rule 17(c). See, e.g., Sue v. Chicago Transit Authority, 279 F.2d 416, 419 (CA7 1960); Shotkin v. Nelson, 146 F.2d 402 (CA10 1944).
26
In a case such as this, however, where a subpoena is directed to a President of the United States, appellate review, in deference to a coordinate branch of Government, should be particularly meticulous to ensure that the standards of Rule 17(c) have been correctly applied. United States v. Burr, 25 F.Cas. pp. 30, 34 (No. 14,692d) (CC Va.1807). From our examination of the materials submitted by the Special Prosecutor to the District Court in support of his motion for the subpoena, we are persuaded that the District Court's denial of the President's motion to quash the subpoena was consistent with Rule 17(c). We also conclude that the Special Prosecutor has made a sufficient showing to justify a subpoena for production before trial. The subpoenaed materials are not available from any other source, and their examination and processing should not await trial in the circumstances shown. Bowman Dairy Co. v. United States, 341 U.S. 214, 71 S.Ct. 675, 95 L.Ed. 879 (1951); United States v. Iozia, 13 F.R.D. 335 (S.D.N.Y. 1952).
IV
THE CLAIM OF PRIVILEGE
A.
27
Having determined that the requirements of Rule 17(c) were satisfied, we turn to the claim that the subpoena should be quashed because it demands 'confidential conversations between a President and his close advisors that it would be inconsistent with the public interest to produce.' App. 48a. The first contention is a broad claim that the separation of powers doctrine precludes judicial review of a President's claim of privilege. The second contention is that if he does not prevail on the claim of absolute privilege, the court should hold as a matter of constitutional law that the privilege prevails over the subpoena duces tecum.
28
In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others. The President's counsel, as we have noted, reads the Constitution as providing an absolute privilege of confidentiality for all Presidential communications. Many decisions of this Court, however, have unequivocally reaffirmed the holding of Marbury v. Madison, 1 Cranch, 137, 2 L.Ed. 60 (1803), that '(i)t is emphatically the province and duty of the judicial department to say what the law is.' Id., at 177, 2 L.Ed. 60.
29
No holding of the Court has defined the scope of judicial power specifically relating to the enforcement of a subpoena for confidential Presidential communications for use in a criminal prosecution, but other exercises of power by the Executive Branch and the Legislative Branch have been found invalid as in conflict with the Constitution. Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969); Youngstown, Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952). In a series of cases, the Court interpreted the explicit immunity conferred by express provisions of the Constitution on Members of the House and Senate by the Speech or Debate Clause, U.S.Const. Art. I, § 6. Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973); Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972); United States v. Brewster, 408 U.S. 501, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972); United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966). Since this Court has consistently exercised the power to construe and delineate claims arising under express powers, it must follow that the Court has authority to interpret claims with respect to powers alleged to derive from enumerated powers.
30
Our system of government 'requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch.' Powell v. McCormack, supra, 395 U.S., at 549, 89 S.Ct., at 1978. And in Baker v. Carr, 369 U.S., at 211, 82 S.Ct., at 706, the Court stated:
31
'(D)eciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.'
32
Notwithstanding the deference each branch must accord the others, the 'judicial Power of the United States' vested in the federal courts by Art. III, § 1, of the Constitution can no more be shared with the Executive Branch than the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a Presidential veto. Any other conclusion would be contrary to the basic concept of separation of powers and the checks and balances that flow from the scheme of a tripartite government. The Federalist, No. 47, p. 313 (S. Mittell ed. 1938). We therefore reaffirm that it is the province and duty of this Court 'to say what the law is' with respect to the claim of privilege presented in this case. Marbury v. Madison, supra, 1 Cranch. at 177, 2 L.Ed. 60.
B
33
In support of his claim of absolute privilege, the President's counsel urges two grounds, one of which is common to all governments and one of which is peculiar to our system of separation of powers. The first ground is the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties; the importance of this confidentiality is too plain to require further discussion. Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.15 Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art. II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers;16 the protection of the confidentiality of Presidential communications has similar constitutional underpinnings.
34
The second ground asserted by the President's counsel in support of the claim of absolute privilege rests on the doctrine of separation of powers. Here it is argued that the independence of the Executive Branch within its own sphere, Humphrey's Executor v. United States, 295 U.S. 602, 629—630, 55 S.Ct. 869, 874—875, 79 L.Ed. 1611 (1935); Kilbourn v. Thompson, 103 U.S. 168, 190—191, 26 L.Ed. 377 (1881), insulates a President from a judicial subpoena in an ongoing criminal prosecution, and thereby protects confidential Presidential communications.
35
However, neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.
36
The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Art. III. In designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence.
37
'While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.' Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S., at 635, 72 S.Ct., at 870 (Jackson, J., concurring).
38
To read the Art. II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of 'a workable government' and gravely impair the role of the courts under Art. III.
C
39
Since we conclude that the legitimate needs of the judicial process may outweigh Presidential privilege, it is necessary to resolve those competing interests in a manner that preserves the essential functions of each branch. The right and indeed the duty to resolve that question does not free the Judiciary from according high respect to the representations made on behalf of the President. United States v. Burr, 25 F.Cas. pp. 187, 190, 191 192 (No. 14,694) (CCVa.1807).
40
The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.17 In Nixon v. Sirica, 159 U.S.App.D.C. 58, 487 F.2d 700 (1973), the Court of Appeals held that such Presidential communications are 'presumptively privileged,' id., at 75, 487 F.2d, at 717, and this position is accepted by both parties in the present litigation. We agree with Mr. Chief Justice Marshall's observation, therefore, that '(i)n no case of this kind would a court be required to proceed against the president as against an ordinary individual.' United States v. Burr, 25 F.Cas., at 192.
41
But this presumptive privilege must be considered in light of our historic commitment to the rule of law. This is nowhere more profoundly manifest than in our view that 'the twofold aim (of criminal justice) is that guilt shall not escape or innocence suffer.' Berger v. United States, 295 U.S., at 88, 55 S.Ct., at 633. We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.
42
Only recently the Court restated the ancient proposition of law, albeit in the context of a grand jury inquiry rather than a trial,
43
'that 'the public . . . has a right to every man's evidence,' except for those persons protected by a constitutional, common-law, or statutory privilege, United States v. Bryan, 339 U.S. (323, 331, 70 S.Ct. 724, 730 (1949)); Blackmer v. United States, 284 U.S. 421, 438 (52 S.Ct. 252, 76 L.Ed. 375) (1932). . . .' Branzburg v. Hayes, United States, 408 U.S. 665, 688 (92 S.Ct. 2646, 33 L.Ed.2d 626) (1972).
44
The privileges referred to by the Court are designed to protect weighty and legitimate competing interests. Thus, the Fifth Amendment to the Constitution provides that no man 'shall be compelled in any criminal case to be a witness against himself.' And, generally, an attorney or a priest may not be required to disclose what has been revealed in professional confidence. These and other interests are recognized in law by privileges against forced disclosure, established in the Constitution, by statute, or at common law. Whatever their origins, these exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.18
45
In this case the President challenges a subpoena served on him as a third party requiring the production of materials for use in a criminal prosecution; he does so on the claim that he has a privilege against diclosure of confidential communications. He does not place his claim of privilege on the ground they are military or diplomatic secrets. As to these areas of Art. II duties the courts have traditionally shown the utmost deference to Presidential responsibilities. In C. & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111, 68 S.Ct. 431, 436, 92 L.Ed. 568 (1948), dealing with Presidential authority involving foreign policy considerations, the Court said:
46
'The President, both as Commander-in-Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret.'
47
In United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953), dealing with a claimant's demand for evidence in a Tort Claims Act case against the Government, the Court said:
48
'It may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers.' Id., at 10.
49
No case of the Court, however, has extended this high degree of deference to a President's generalized interest in confidentiality. Nowhere in the Constitution, as we have noted earlier, is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a President's powers, it is constitutionally based.
50
The right to the production of all evidence at a criminal trial similarly has constitutional dimensions. The Sixth Amendment explicitly confers upon every defendant in a criminal trial the right 'to be confronted with the witnesses against him' and 'to have compulsory process for obtaining witnesses in his favor. Moreover, the Fifth Amendment also guarantees that no person shall be deprived of liberty without due process of law. It is the manifest duty of the courts to vindicate those guarantees, and to accomplish that it is essential that all relevant and admissible evidence be produced.
51
In this case we must weigh the importance of the general privilege of confidentiality of Presidential communications in performance of the President's responsibilities against the inroads of such a privilege on the fair administration of criminal justice.19 The interest in preserving confidentiality is weighty indeed and entitled to great respect. However, we cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution.20
52
On the other hand, the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A President's acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated. The President's broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases.
53
We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.
D
54
We have earlier determined that the District Court did not err in authorizing the issuance of the subpoena. If a President concludes that compliance with a subpoena would be injurious to the public interest he may properly, as was done here, invoke a claim of privilege on the return of the subpoena. Upon receiving a claim of privilege from the Chief Executive, it became the further duty of the District Court to treat the subpoenaed material as presumptively privileged and to require the Special Prosecutor to demonstrate that the Presidential material was 'essential to the justice of the (pending criminal) case.' United States v. Burr, 25 Fed.Cas., at 192. Here the District Court treated the material as presumptively privileged, proceeded to find that the Special Prosecutor had made a sufficient showing to rebut the presumption, and ordered an in camera examination of the subpoenaed material. On the basis of our examination of the record we are unable to conclude that the District Court erred in ordering the inspection. Accordingly we affirm the order of the District Court that subpoenaed materials be transmitted to that court. We now turn to the important question of the District Court's responsibilities in conducting the in camera examination of Presidential materials or communications delivered under the compulsion of the subpoena duces tecum.
E
55
Enforcement of the subpoena duces tecum was stayed pending this Court's resolution of the issues raised by the petitions for certiorari. Those issues now having been disposed of, the matter of implementation will rest with the District Court. '(T)he guard, furnished to (the President) to protect him from being harassed by vexatious and unnecessary subpoenas, is to be looked for in the conduct of a (district) court after those subpoenas have issued; not in any circumstance which is to precede their being issued.' United States v. Burr, supra, at 34. Statements that meet the test of admissibility and relevance must be isolated; all other material must be excised. At this stage the District Court is not limited to representations of the Special Prosecutor as to the evidence sought by the subpoena; the material will be available to the District Court. It is elementary that in camera inspection of evidence is always a procedure calling for scrupulous protection against any release or publication of material not found by the court, at that stage, probably admissible in evidence and relevant to the issues of the trial for which it is sought. That being true of an ordinary situation, it is obvious that the District Court has a very heavy responsibility to see to it that Presidential conversations, which are either not relevant or not admissible, are accorded that high degree of respect due the President of the United States. Mr. Chief Justice Marshall, sitting as a trial judge in the Burr case, supra, was extraordinarily careful to point out that
56
'(i)n no case of this kind would a court be required to proceed against the president as against an ordinary individual.' at 192.
57
Marshall's statement cannot be read to mean in any sense that a President is above the law, but relates to the singularly unique role under Art. II of a President's communications and activities, related to the performance of duties under that Article. Moreover, a President's communications and activities encompass a vastly wider range of sensitive material than would be true of any 'ordinary individual.' It is therefore necessary21 in the public interest to afford Presidential confidentiality the greatest protection consistent with the fair administration of justice. The need for confidentiality even as to idle conversations with associates in which casual reference might be made concerning political leaders within the country or foreign statesmen is too obvious to call for further treatment. We have no doubt that the District Judge will at all times accord to Presidential records that high degree of deference suggested in United States v. Burr, supra and will discharge his responsibility to see to it that until released to the Special Prosecutor no in camera material is revealed to anyone. This burden applies with even greater force to excised material; once the decision is made to excise, the material is restored to its privileged status and should be returned under seal to its lawful custodian.
58
Since this matter came before the Court during the pendency of a criminal prosecution, and on representations that time is of the essence, the mandate shall issue forthwith.
59
Affirmed.
60
Mr. Justice REHNQUIST took no part in the consideration or decision of these cases.
1
See 28 U.S.C. §§ 1254(1) and 2101(e) and our Rule 20. See, e.g. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952); United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947); Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160 (1936); Rickert Rice Mills v. Fontenot, 297 U.S. 110, 56 S.Ct. 374, 80 L.Ed. 513 (1936); Railroad Retirement Board v. Alton R. Co., 295 U.S. 330, 55 S.Ct. 758, 79 L.Ed. 1468 (1935); Norman v. Baltimore & Ohio R. Co., 294 U.S. 240, 55 S.Ct. 407, 79 L.Ed. 885 (1935).
2
The cross-petition in No. 73—1834 raised the issue whether the grand jury acted within its authority in naming the President as a coconspirator. Since we find resolution of this issue unnecessary to resolution of the question whether the claim of privilege is to prevail, the cross-petition for certiorari is dismissed as improvidently granted and the remainder of this opinion is concerned with the issues raised in No. 73—1766. On June 19, 1974, the President's counsel moved for disclosure and transmittal to this Court of all evidence presented to the grand jury relating to its action in naming the President as an unindicted coconspirator. Action on this motion was deferred pending oral argument of the case and is now denied.
3
The seven defendants were John N. Mitchell, H. R. Haldeman, John D. Ehrlichman, Charles W. Colson, Robert C. Mardian, Kenneth W. Parkinson, and Gordon Strachan. Each had occupied either a position of responsibility on the White House staff or the Committee for the Re-election of the President. Colson entered a guilty plea on another charge and is no longer a defendant.
4
The President entered a special appearance in the District Court on June 6 and requested that court to lift its protective order regarding the naming of certain individuals as coconspirators and to any additional extent deemed appropriate by the Court. This motion of the President was based on the ground that the disclosures to the news media made the reasons for continuance of the protective order no longer meaningful. On June 7, the District Court removed its protective order and, on June 10, counsel for both parties jointly moved this Court to unseal those parts of the record which related to the action of the grand jury regarding the President. After receiving a statement in opposition from the defendants, this Court denied that motion on June 15, 1974 except for the grand jury's immediate finding relating to the status of the President as an unindicted coconspirator. 417 U.S. 960, 94 S.Ct. 3162, 41 L.Ed.2d 1134.
5
The specific meetings and conversations are enumerated in a schedule attached to the subpoena. App. 42a—46a.
6
At the joint suggestion of the Special Prosecutor and counsel for the President, and with the approval of counsel for the defendants, further proceedings in the District Court were held in camera.
7
The parties have suggested that this Court has jurisdiction on other grounds. In view of our conclusion that there is jurisdiction under 28 U.S.C. § 1254(1) because the District Court's order was appealable, we need not decide whether other jurisdictional vehicles are available.
8
The regulation issued by the Attorney General pursuant to his statutory authority, vests in the Special Prosecutor plenary authority to control the course of investigations and litigation related to 'all offenses arising out of the 1972 Presidential Election for which the Special Prosecutor deems it necessary and appropriate to assume responsibility, allegations involving the President, members of the White House staff, or Presidential appointees, and any other matters which he consents to have assigned to him by the Attorney General.' 38 Fed.Reg. 30739, as amended by 38 Fed.Reg. 32805. In particular, the Special Prosecutor was given full authority, inter alia, 'to contest the assertion of 'Executive Privilege' . . . and handl(e) all aspects of any cases within his jurisdiction.' Id., at 30739. The regulations then go on the provide:
'In exercising this authority, the Special Prosecutor will have the greatest degree of independence that is consistent with the Attorney General's statutory accountability for all matters falling within the jurisdiction of the Department of Justice. The Attorney General will not countermand or interfere with the Special Prosecutor's decisions or actions. The Special Prosecutor will determine whether and to what extent he will inform or consult with the Attorney General about the conduct of his duties and responsibilities. In accordance with assurances given by the President to the Attorney General that the President will not exercise his Constitutional powers to effect the discharge of the Special Prosecutor or to limit the independence that he is hereby given, the Special Prosecutor will not be removed from his duties except for extraordinary improprieties on his part and without the President's first consulting the Majority and the Minority Leaders and Chairmen and ranking Minority Members of the Judiciary Committees of the Senate and House of Representatives and ascertaining that their consensus is in accord with his proposed action.'
9
That this was the understanding of Acting Attorney General Robert Bork, the author of the regulation establishing the independence of the Special Prosecutor, is shown by his testimony before the Senate Judiciary Committee:
'Although it is anticipated that Mr. Jaworski will receive cooperation from the White House in getting any evidence he feels he needs to conduct investigations and prosecutions, it is clear and understood on all sides that he has the power to use judicial processes to pursue evidence if disagreement should develop.'
Hearings on the Special Prosecutor before the Senate Committee on the Judiciary 93d Cong., 1st Sess., pt. 2, p. 450 (1973). Acting Attorney General Bork gave similar assurances to the House Subcommittee on Criminal Justice. Hearings on H.J.Res. 784 and H.R. 10937 before the Subcommittee on Criminal Justice of the House Committee on the Judiciary, 93d Cong., 1st Sess., 266 (1973). At his confirmation hearings, Attorney General William Saxbe testified that he shared Acting Attorney General Bork's views concerning the Special Prosecutor's authority to test any claim of executive privilege in the courts. Hearings on the Nomination of William B. Saxbe to be Attorney General before the Senate Committee on the Judiciary, 93d Cong., 1st Sess., 9 (1973).
10
At his confirmation hearings, Attorney General William Saxbe testified that he agreed with the regulation adopted by Acting Attorney General Bork and would not remove the Special Prosecutor except for 'gross impropriety.' Id., at 5—6, 8—10. There is no contention here that the Special Prosecutor is guilty of any such impropriety.
11
The Court quoted a statement of a member of the advisory committee that the purpose of the Rule was to bring documents into court 'in advance of the time that they are offered in evidence, so that they may then be inspected in advance, for the purpose . . . of enabling the party to see whether he can use (them) or whether he wants to use (them).' 341 U.S., at 220 n. 5, 71 S.Ct., at 678. The Manual for Complex and Multidistrict Litigation published by the Federal Judicial Center recommends that use of Rule 17(c) be encouraged in complex criminal cases in order that each party may be compelled to produce its documentary evidence well in advance of trial and in advance of the time it is to be offered. P. 150.
12
The District Court found here that it was faced with 'the more unusual situation . . . where the subpoena, rather than being directed to the government by defendants, issues to what, as a practical matter, is a third party.' United States v. Mitchell, 377 F.Supp. 1326, 1330 (D.C.1974). The Special Prosecutor suggests that the evidentiary requirement of Bowman Dairy Co. and Iozia does not apply in its full vigor when the subpoena duces tecum is issued to third parties rather than to government prosecutors. Brief for United States 128—129. We need not decide whether a lower standard exists because we are satisfied that the relevance and evidentiary nature of the subpoenaed tapes were sufficiently shown as a preliminary matter to warrant the District Court's refusal to quash the subpoena.
13
Such statements are declarations by a party defendant that 'would surmount all objections based on the hearsay rule . . .' and, at least as to the declarant himself, 'would be admissible for whatever inferences' might be reasonably drawn. United States v. Matlock, 415 U.S. 164, 172, 94 S.Ct. 988, 994, 39 L.Ed.2d 242 (1974). On Lee v. United States, 343 U.S. 747, 757, 72 S.Ct. 967, 973, 96 L.Ed. 1270 (1952). See also McCormick, Evidence § 270, pp. 651—652 (2d ed. 1972).
14
As a preliminary matter, there must be substantial, independent evidence of the conspiracy, at least enough to take the question to the jury. United States v. Vaught, 485 F.2d 320, 323 (CA4 1973); United States v. Hoffa, 349 F.2d 20, 41—42 (CA6 1965), aff'd on other grounds, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); United States v. Santos, 385 F.2d 43, 45 (CA7 1967), cert. denied, 390 U.S. 954, 88 S.Ct. 1048, 19 L.Ed.2d 1148 (1968); United States v. Morton, 483 F.2d 573, 576 (CA8 1973); United States v. Spanos, 462 F.2d 1012, 1014 (CA9 1972); Carbo v. United States, 314 F.2d 718, 737 (CA9 1963), cert. denied, 377 U.S. 953, 84 S.Ct. 1625, 1626, 1627, 12 L.Ed.2d 498 (1964). Whether the standard has been satisfied is a question of admissibility of evidence to be decided by the trial judge.
15
There is nothing novel about governmental confidentiality. The meetings of the Constitutional Convention in 1787 were conducted in complete privacy. 1 M. Farrand, The Records of the Federal Convention of 1787, pp. xi—xxv (1911). Moreover, all records of those meetings were sealed for more than 30 years after the Convention. See 3 Stat. 475, 15th Cong., 1st Sess., Res. 8 (1818). Most of the Framers acknowledge that without secrecy no constitution of the kind that was developed could have been written. C. Warren, The Making of the Constitution 134—139 (1937).
16
The Special Prosecutor argues that there is no provision in the Constitution for a Presidential privilege as to the President's communications corresponding to the privilege of Members of Congress under the Speech or Debate Clause. But the silence of the Constitution on this score is not dispositive. 'The rule of constitutional interpretation announced in McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579, that that which was reasonably appropriate and relevant to the exercise of a granted power was to be considered as accompanying the grant, has been so universally applied that it suffices merely to state it.' Marshall v. Gordon, 243 U.S. 521, 537, 37 S.Ct. 448, 451, 61 L.Ed. 881 (1917).
17
'Freedom of communication vital to fulfillment of the aims of wholesome relationships is obtained only by removing the specter of compelled disclosure. . . . (G)overnment . . . needs open but protected channels for the kind of plain talk that is essential to the quality of its functioning.' Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, Jena, 40 F.R.D. 318, 325 (DC 1966). See Nixon v. Sirica, 159 U.S.App.D.C. 58, 71, 487 F.2d 700, 713 (1973); Kaiser Aluminum & Chem. Corp. v. United States, 141 Ct.Cl. 38, 157 F.Supp. 939 (1958) (Reed, J.); The Federalist, No. 64 (S. Mittell ed. 1938).
18
Because of the key role of the testimony of witnesses in the judicial process, courts have historically been cautious about privileges. Mr. Justice Frankfurter, dissenting in Elkins v. United States, 364 U.S. 206, 234, 80 S.Ct. 1437, 1454, 4 L.Ed.2d 1669 (1960), said of this: 'Limitations are properly placed upon the operation of this general principle only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.'
19
We are not here concerned with the balance between the President's generalized interest in confidentiality and the need for relevant evidence in civil litigation, nor with that between the confidentiality interest and congressional demands for information, nor with the President's interest in preserving state secrets. We address only the conflict between the President's assertion of a generalized privilege of confidentiality and the constitutional need for relevant evidence in criminal trials.
20
Mr. Justice Cardozo made this point in an analogous context, speaking for a unanimous Court in Clark v. United States, 289 U.S. 1, 53 S.Ct. 465, 77 L.Ed. 993 (1933), he emphasized the importance of maintaining the secrecy of the deliberations of a petit jury in a criminal case. 'Freedom of debate might be stifled and independence of thought checked if jurors were made to feel that their arguments and ballots were to be freely published to the world.' Id., at 13, 53 S.Ct., at 469. Nonetheless, the Court also recognized that isolated inroads on confidentiality designed to serve the paramount need of the criminal law would not vitiate the interests served by secrecy:
'A juror of integrity and reasonable firmness will not fear to speak his mind if the confidences of debate are barred to the ears of mere impertinence of malice. He will not expect to be shielded against the disclosure of his conduct in the event that there is evidence reflecting upon his honor. The chance that now and then there may be found some timid soul who will take counsel of his fears and give way to their repressive power is too remote and shadowy to shape the course of justice.' Id., at 16, 53 S.Ct., at 470.
21
When the subpoenaed material is delivered to the District Judge in camera, questions may arise as to the excising of parts, and it lies within the discretion of that court to seek the aid of the Special Prosecutor and the President's counsel for in camera consideration of the validity of particular excisions, whether the basis of excision is relevancy or admissibility or under such cases as United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953), or C. & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568 (1948).
| 01
|
418 U.S. 717
94 S.Ct. 3112
41 L.Ed.2d 1069
William G. MILLIKEN, Governor of Michigan, et al., Petitioners,v.Ronald BRADLEY and Richard Bradley, by their mother and next friend, VerdaBradley, et al. ALLEN PARK PUBLIC SCHOOLS et al., Petitioners, v. Ronald BRADLEY and Richard Bradley, by their mother and next friend, VerdaBradley, et al. The GROSSE POINTE PUBLIC SCHOOL SYSTEM, Petitioner, v. Ronald BRADLEY and Richard Bradley, by their mother and next friend, VerdaBradley, et al.
Nos. 73—434, 73—435 and 73—436.
Argued Feb. 27, 1974.
Decided July 25, 1974.
Syllabus
Respondents brought this class action, alleging that the Detroit public school system is racially segregated as a result of the official policies and actions of petitioner state and city officials, and seeking implementation of a plan to eliminate the segregation and establish a unitary nonracial school system. The District Court, after concluding that various acts by the petitioner Detroit Board of Education had created and perpetuated school segregation in Detroit, and that the acts of the Board, as a subordinate entity of the State, were attributable to the State, ordered the Board to submit Detroit-only desegregation plans. The court also ordered the state officials to submit desegregation plans encompassing the three-county metropolitan area, despite the fact that the 85 outlying school districts in these three counties were not parties to the action and there was no claim that they had committed constitutional violations. Subsequently, outlying school districts were allowed to intervene, but were not permitted to assert any claim or defense on issues previously adjudicated or to reopen any issue previously decided, but were allowed merely to advise the court as to the propriety of a metropolitan plan and to submit any objections, modifications, or alternatives to any such plan. Thereafter, the District Court ruled that it was proper to consider metropolitan plans that Detroit-only plans submitted by the Board and respondents were inadequate to accomplish desegregation, and that therefore it would seek a solution beyond the limits of the Detroit School District, and concluded that '(s)chool district lines are simply matters of political convenience and may not be used to deny constitutional rights.' Without having evidence that the suburban school districts had committed acts of de jure segregation, the court appointed a panel to submit a plan for the Detroit schools that would encompass an entire designated desegregation area consisting of 53 of the 85 suburban school districts plus Detroit, and ordered the Detroit Board to acquire at least 295 school buses to provide transportation under an interim plan to be developed for the 1972—1973 school year. The Court of Appeals, affirming in part, held that the record supported the District Court's finding as to the constitutional violations committed by the Detroit Board and the state officials; that therefore the District Court was authorized and required to take effective measures to desegregate the Detroit school system; and that a metropolitan area plan embracing the 53 outlying districts was the only feasible solution and was within the District Court's equity powers. But the court remanded so that all suburban school districts that might be affected by a metropolitan remedy could be made parties and have an opportunity to be heard as to the scope and implementation of such a remedy, and vacated the order as to the bus acquisitions, subject to its reimposition at an appropriate time. Held: The relief ordered by the District Court and affirmed by the Court of Appeals was based upon erroneous standards and was unsupported by record evidence that acts of the outlying districts had any impact on the discrimination found to exist in the Detroit schools. A federal court may not impose a multidistrict, areawide remedy for single-district de jure school segregation violations, where there is no finding that the other included school districts have failed to operate unitary school systems or have committed acts that effected segregation within the other districts, there is no claim or finding that the school district boundary lines were established with the purpose of fostering racial segregation, and there is no meaningful opportunity for the included neighboring school districts to present evidence or be heard on the propriety of a multidistrict remedy or on the question of constitutional violations by those districts. Pp. 737—753.
(a) The District Court erred in using as a standard the declared objective of development of a metropolitan area plan which, upon implementation, would leave 'no school, grade or classroom . . . substantially disproportionate to the overall pupil racial composition' of the metropolitan area as a whole. The clear import of Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554, is that desegregation, in the sense of dismantling a dual school system, does not require any particular racial balance. Pp. 739—741.
(b) While boundary lines may be bridged in circumstances where there has been a constitutional violation calling for inter-district relief, school district lines may not be casually ignored or treated as a mere administrative convenience; substantial local control of public education in this country is a deeply rooted tradition. Pp. 741—742.
(c) The interdistrict remedy could extensively disrupt and alter the structure of public education in Michigan, since that remedy would require, in effect, consolidation of 54 independent school districts historically administered as separate governmental units into a vast new super school district, and, since—entirely apart from the logistical problems attending large-scale transportation of students—the consolidation would generate other problems in the administration, financing, and operation of this new school system. Pp. 742—743.
(d) From the scope of the interdistrict plan itself, absent a complete restructuring of the Michigan school district laws, the District Court would become, first, a de facto 'legislative authority' to resolve the complex operational problems involved and thereafter a 'school superintendent' for the entire area, a task which few, if any, judges are qualified to perform and one which would deprive the people of local control of schools through elected school boards. Pp. 743—744.
(e) Before the boundaries of separate and autonomous school districts may be set aside by consolidating the separate units for remedial purposes or by imposing a cross-district remedy, it must be first shown that there has been a constitutional violation within one district that produces a significant segregative effect in another district; i.e., specifically, it must be shown that racially discriminatory acts of the state or local school districts, or of a single school district have been a substantial cause of interdistrict segregation. Pp. 744—745.
(f) With no showing of significant violation by the 53 outlying school districts and no evidence of any interdistrict violation or effect, the District Court transcended the original theory of the case as framed by the pleadings, and mandated a metropolitan area remedy, the approval of which would impose on the outlying districts, not shown to have committed any constitutional violation, a standard not previously hinted at in any holding of this Court. P. 745.
(g) Assuming, arguendo, that the State was derivatively responsible for Detroit's segregated school conditions, it does not follow that an interdistrict remedy is constitutionally justified or required, since there has been virtually no showing that either the State or any of the 85 outlying districts engaged in any activity that had a cross-district effect. Pp. 748—749.
(h) An isolated instance of a possible segregative effect as between two of the school districts involved would not justify the broad metropolitanwide remedy contemplated, particularly since that remedy embraced 52 districts having no responsibility for the arrangement and potentially involved 503,000 pupils in addition to Detroit's 276,000 pupils. Pp. 749—750.
484 F.2d 215, reversed and remanded.
Frank J. Kelley, Lansing, Mich., for petitioners William G. Milliken et al.
William M. Saxton, Detroit, Mich., for petitioners Allen Park Public Schools and Grosse Pointe Public School System et al.
Solicitor Gen. Robert H. Bork for the United States, as amicus curiae, by special leave of Court.
J. Harold Flannery, Cambridge, Mass., and Nathaniel R. Jones, New York City, for respondents.
Mr. Chief Justice BURGER delivered the opinion of the Court.
1
We granted certiorari in these consolidated cases to determine whether a federal court may impose a multidistrict, areawide remedy to a single-district de jure segregation problem absent any finding that the other included school districts have failed to operate unitary school systems within their districts, absent any claim or finding that the boundary lines of any affected school district were established with the purpose of fostering racial segregation in public schools, absent any finding that the included districts committed acts which effected segregation within the other districts, and absent a meaningful opportunity for the included neighboring school districts to present evidence or be heard on the propriety of a multidistrict remedy or on the question of constitutional violations by those neighboring districts.1
2
* The action was commenced in August 1970 by the respondents, the Detroit Branch of the National Association for the Advancement of Colored People2 and individual parents and students, on behalf of a class later defined by order of the United States District Court for the Eastern District of Michigan, dated February 16, 1971, to included 'all school children in the City of Detroit, Michigan, and all Detroit resident parents who have children of school age.' The named defendants in the District Court included the Governor of Michigan, the Attorney General, the State Board of Education, the State Superintendent of Public Instruction, the Board of Education of the city of Detroit, its members, the city's and its former superintendent of schools. The State of Michigan as such is not a party to this litigation and references to the State must be read as references to the public officials, state and local, through whom the State is alleged to have acted. In their complaint respondents attacked the constitutionality of a statute of the State of Michigan known as Act 48 of the 1970 Legislature on the ground that it put the State of Michigan in the position of unconstitutionally interfering with the execution and operation of a voluntary plan of partial high school desegregation, known as the April 7, 1970, Plan, which had been adopted by the Detroit Board of Education to be effective beginning with the fall 1970 semester. The complaint also alleged that the Detroit Public School System was and is segregated on the basis of race as a result of the official policies and actions of the defendants and their predecessors in office, and called for the implementation of a plan that would eliminate 'the racial identity of every school in the (Detroit) system and . . . maintain now and hereafter a unitary, nonracial school system.'
3
Initially the matter was tried on respondents' motion for a preliminary injunction to restrain in enforcement of Act 48 so as to permit the April 7 Plan to be implemented. On that issue, the District Court ruled that respondents were not entitled to a preliminary injunction since at that stage there was no proof that Detroit had a dual segregated school system. On appeal, the Court of Appeals found that the 'implementation of the April 7 plan was (unconstitutionally) thwarted by State action in the form of the Act of the Legislature of Michigan,' 433 F.2d 897, 902 (CA6 1970), and that such action could not be interposed to delay, obstruct, or nullify steps lawfully taken for the purpose of protecting rights guaranteed by the Fourteenth Amendment. The case was remanded to the District Court for an expedited trial on the merits.
4
On remand, the respondents moved for immediate implementation of the April 7 Plan in order to remedy the deprivation of the claimed constitutional rights. In response, the School Board suggested two other plans, along with the April 7 Plan, and urged that top priority be assigned to the so-called 'Magnet Plan' which was 'designed to attract children to a school because of its superior curriculum.' The District Court approved the Board's Magnet Plan, and respondents again appealed to the Court of Appeals, moving for summary reversal. The Court of Appeals refused to pass on the merits of the Magnet Plan and ruled that the District Court had not abused its discretion in refusing to adopt the April 7 Plan without an evidentiary hearing. The case was again remanded with instructions to proceed immediately to a trial on the merits of respondents' substantive allegations concerning the Detroit school system. 438 F.2d 945 (CA6 1971).
5
The trial of the issue of segregation in the Detroit school system began on April 6, 1971, and continued through July 22, 1971, consuming some 41 trial days. On September 27, 1971, the District Court issued its findings and conclusions on the issue of segregation, finding that 'Governmental actions and inaction at all levels, federal, state and local, have combined, with those of private organizations, such as loaning institutions and real estate associations and brokerage firms, to establish and to maintain the pattern of residential segregation throughout the Detroit metropolitan area.' 338 F.Supp. 582, 587 (ED Mich.1971). While still addressing a Detroit-only violation, the District Court reasoned:
6
'While it would be unfair to charge the present defendants with what other governmental officers or agencies have done, it can be said that the actions or the failure to act by the responsible school authorities, both city and state, were linked to that of these other governmental units. When we speak of governmental action we should not view the different agencies as a collection of unrelated units. Perhaps the most that can be said is that all of them, including the school authorities, are, in part, responsible for the segregated condition which exists. And we note that just as there is an interaction between residential patterns and the racial composition of the schools, so there is a corresponding effect on the residential pattern by the racial composition of the schools.' Ibid.
7
The District Court found that the Detroit Board of Education created and maintained optional attendance zones3 within Detroit neighborhoods undergoing racial transition and between high school attendance areas of opposite predominant racial compositions. These zones, the court found, had the 'natural, probable, foreseeable and actual effect' of allowing white pupils to escape identifiably Negro schools. Ibid. Similarly, the District Court found that Detroit school attendance zones had been drawn along north-south boundary lines despite the Detroit Board's awareness that drawing boundary lines in an east-west direction would result in significantly greater desegregation. Again, the District Court concluded, the natural and actual effect of these acts was the creation and perpetuation of school segregation within Detroit.
8
The District Court found that in the operation of its school transportation program, which was designed to relieve overcrowding, the Detroit Board had admittedly bused Negro Detroit pupils to predominantly Negro schools which were beyond or away from closer white schools with available space.4 This practice was found to have continued in recent years despite the Detroit Board's avowed policy, adopted in 1967, of utilizing transportation to increase desegregation:
9
'With one exception (necessitated by the burning of a white school), defendant Board has never bused white children to predominantly black schools. The Board has not bused white pupils to black schools despite the enormous amount of space available in inner-city schools. There were 22,961 vacant seats in schools 90% or more black.' Id., at 588.
10
With respect to the Detroit Board of Education's practices in school construction, the District Court found that Detroit school construction generally tended to have a segregative effect with the great majority of schools being built in either overwhelmingly all-Negro or all-white neighborhoods so that the new schools opened as predominantly one-race schools. Thus, of the 14 schools which opened for use in 1970—1971, 11 opened over 90% Negro and one opened less than 10% Negro.
11
The District Court also found that the State of Michigan had committed several constitutional violations with respect to the exercise of its general responsibility for, and supervision of, public education.5 The State, for example, was found to have failed, until the 1971 Session of the Michigan Legislature, to provide authorization or funds for the transportation of pupils within Detroit regardless of their poverty or distance from the school to which they were assigned; during this same period the State provided many neighboring, mostly white, suburban districts the full range of state-supported transportation.
12
The District Court found that the State, through Act 48, acted to 'impede, delay and minimize racial integration in Detroit schools.' The first sentence of § 12 of Act 48 was designed to delay the April 7, 1970, desegregation plan originally adopted by the Detroit Board. The remainder of § 12 sought to prescribe for each school in the eight districts criteria of 'free choice' and 'neighborhood schools,' which, the District Court found, 'had as their purpose and effect the maintenance of segregation.' 338 F.Supp., at 589.6
13
The District Court also held that the acts of the Detroit Board of Education, as a subordinate entity of the State, were attributable to the State of Michigan, thus creating a vicarious liability on the part of the State. Under Michigan law, Mich.Comp.Laws § 388.851 (1970), for example, school building construction plans had to be approved by the State Board of Education, and, prior to 1962, the State Board had specific statutory authority to supervise school-site selection. The proofs concerning the effect of Detroit's school construction program were, therefore, found to be largely applicable to show state responsibility for the segregative results.7
14
Turning to the question of an appropriate remedy for these several constitutional violations, the District Court deferred a pending motion8 by intervening parent defendants to join as additional parties defendant the 85 outlying school districts in the three-county Detroit metropolitan area on the ground that effective relief could not be achieved without their presence.9 The District Court concluded that this motion to join was 'premature,' since it 'has to do with relief' and no reasonably specific desegregation plan was before the court. 338 F.Supp., at 595. Accordingly, the District Court proceeded to order the Detroit Board of Education to submit desegregation plans limited to the segregation problems found to be existing within the city of Detroit. At the same time, however, the state defendants were directed to submit desegregation plans encompassing the three-county metropolitan area10 despite the fact that the 85 outlying school districts of these three counties were not parties to the action and despite the fact that there had been no claim that these outlying districts had committed constitutional violations.11 An effort to appeal these orders to the Court of Appeals was dismissed on the ground that the orders were not appealable. 468 F.2d 902 (CA6), cert. denied, 409 U.S. 844, 93 S.Ct. 45, 34 L.Ed.2d 83 (1972). The sequence of the ensuing actions and orders of the District Court are significant factors and will therefore be catalogued in some detail.
15
Following the District Court's abrupt announcement that it planned to consider the implementation of a multidistrict, metropolitan area remedy to the segregation problems identified within the city of Detroit, the District Court was again requested to grant the outlying school districts intervention as of right on the ground that the District Court's new request for multidistrict plans 'may, as a practical matter, impair or impede (the intervenors') ability to protect' the welfare of their students. The District Court took the motions to intervene under advisement pending submission of the requested desegregation plans by Detroit and the state officials. On March 7, 1972, the District Court notified all parties and the petitioner school districts seeking intervention, that March 14, 1972, was the deadline for submission of recommendations for conditions of intervention and the date of the commencement of hearings on Detroit-only desegregation plans. On the second day of the scheduled hearings, March 15, 1972, the District Court granted the motions of the intervenor school districts12 subject, inter alia, to the following conditions:
16
'1. No intervenor will be permitted to assert any claim or defense previously adjudicated by the court.
17
'2. No intervenor shall reopen any question or issue which has previously been decided by the court.
18
'7. New intervenors are granted intervention for two principal purposes: (a) To advise the court, by brief, of the legal propriety or impropriety of considering a metropolitan plan; (b) To review any plan or plans for the desegregation of the so-called larger Detroit Metropolitan area, and submitting objections, modifications or alternatives to it or them, and in accordance with the requirements of the United States Constitution and the prior orders of this court.' 1 Joint Appendix 206 (hereinafter App.).
19
Upon granting the motion to intervene, on March 15, 1972, the District Court advised the petitioning intervenors that the court had previously set March 22, 1972, as the date for the filing of briefs on the legal propriety of a 'metropolitan' plan of desegregation and, accordingly, that the intervening school districts would have one week to muster their legal arguments on the issue.13 Thereafter, and following the completion of hearings on the Detroit-only desegregation plans, the District Court issued the four rulings that were the principal issues in the Court of Appeals.
20
(a) On March 24, 1972, two days after the intervenors' briefs were due, the District Court issued its ruling on the question of whether it could 'consider relief in the form of a metropolitan plan, encompassing not only the City of Detroit, but the larger Detroit metropolitan area.' It rejected the state defendants' arguments that no state action caused the segregation of the Detroit schools, and the intervening suburban districts' contention that interdistrict relief was inappropriate unless the suburban districts themselves had committed violations. The court concluded:
21
'(I)t is proper for the court to consider metropolitan plans directed toward the desegregation of the Detroit public schools as an alternative to the present intra-city desegregation plans before it and, in the event that the court finds such intra-city plans inadequate to desegregate such schools, the court is of the opinion that it is required to consider a metropolitan remedy for desegregation.' Pet.App. 51a.
22
(b) On March 28, 1972, the District Court issued its findings and conclusions on the three Detroit-only plans submitted by the city Board and the respondents. It found that the best of the three plans 'would make the Detroit school system more identifiably Black . . . thereby increasing the flight of Whites from the city and the system.' Id., at 55a. From this the court concluded that the plan 'would not accomplish desegregation . . . within the corporate geographical limits of the city.' Id., at 56a. Accordingly, the District Court held that it 'must look beyond the limits of the Detroit school district for a solution to the problem,' and that '(s)chool district lines are simply matters of political convenience and may not be used to deny constitutional rights.' Id., at 57a.
23
(c) During the period from March 28 to April 14, 1972, the District Court conducted hearings on a metropolitan plan. Counsel for the petitioning intervenors was allowed to participate in these hearings, but he was ordered to confine his argument to 'the size and expanse of the metropolitan plan' without addressing the intervenors' opposition to such a remedy or the claim that a finding of a constitutional violation by the intervenor districts was an essential predicate to any remedy involving them. Thereafter, on June 14, 1972, the District Court issued its ruling on the 'desegregation area' and related findings and conclusions. The court acknowledged at the outset that it had 'taken no proofs with respect to the establishment of the boundaries of the 86 public school districts in the counties (in the Detroit area), nor on the issue of whether, with the exclusion of the city of Detroit school districts, such school districts have committed acts of de jure segregation.' Nevertheless, the court designated 53 of the 85 suburban school districts plus Detroit as the 'desegregation area' and appointed a panel to prepare and submit 'an effective desegregation plan' for the Detroit schools that would encompass the entire desegregation area.14 The plan was to be based on 15 clusters, each containing part of the Detroit system and two or more suburban districts, and was to 'achieve the greatest degree of actual desegregation to the end that, upon implementation, no school, grade or classroom (would be) substantially disproportionate to the overall pupil racial composition.' 345 F.Supp. 914, 918 (ED Mich.1972).
24
(d) On July 11, 1972, and in accordance with a recommendation by the court-appointed desegregation panel, the District Court ordered the Detroit Board of Education to purchase or lease 'at least' 295 school buses for the purpose of providing transportation under an interim plan to be developed for the 1972 1973 school year. The costs of this acquisition were to be borne by the state defendants. Pet.App. 106a—107a.
25
On June 12, 1973, a divided Court of Appeals, sitting en banc, affirmed in part, vacated in part, and remanded for further proceedings. 484 F.2d 215 (CA6).15 The Court of Appeals held, first, that the record supported the District Court's findings and conclusions on the constitutional violations committed by the Detroit Board, id., at 221—238, and by the state defendants, id., at 239—241.16 It stated that the acts of racial discrimination shown in the record are 'causally related to the substantial amount of segregation found in the Detroit school system,' id., at 241, and that 'the District Court was therefore authorized and required to take effective measures to desegregate the Detroit Public School System.' Id., at 242.
26
The Court of Appeals also agreed with the District Court that 'any less comprehensive a solution than a metropolitan area plan would result in an all black school system immediately surrounded by practically all white suburban school systems, with an overwhelmingly white majority population in the total metropolitan area.' Id., at 245. The court went on to state that it could '(not) see how such segregation can be any less harmful to the minority students than if the same result were accomplished within one school district.' Ibid.
27
Accordingly, the Court of Appeals concluded that 'the only feasible desegregation plan involves the crossing of the boundary lines between the Detroit School District and adjacent or nearby school districts for the limited purpose of providing an effective desegregation plan.' Id., It reasoned that such a plan would be appropriate because of the State's violations, and could be implemented because of the State's authority to control local school districts. Without further elaboration, and without any discussion of the claims that no constitutional violation by the outlying districts had been shown and that no evidence on that point had been allowed, the Court of Appeals held:
28
'(T)he State has committed de jure acts of segregation and . . . the State controls the instrumentalities whose action is necessary to remedy the harmful effects of the State acts.' Ibid.
29
An interdistrict remedy was thus held to be 'within the equity powers of the District Court.' Id., at 250.17
30
The Court of Appeals expressed no views on the propriety of the District Court's composition of the metropolitan 'desegregation area.' It held that all suburban school districts that might be affected by any metropolitanwide remedy should, under Fed.Rule Civ.Proc. 19, be made parties to the case on remand and be given an opportunity to be heard with respect to the scope and implementation of such a remedy. 484 F.2d, at 251—252. Under the terms of the remand, however, the District Court was not 'required' to receive further evidence on the issue of segregation in the Detroit schools or on the propriety of a Detroit-only remedy, or on the question of whether the affected districts had committed any violation of the constitutional rights of Detroit pupils or others. Id., at 252. Finally, the Court of Appeals vacated the District Court's order directing the acquisition of school buses, subject to the right of the District Court to consider reimposing the order 'at the appropriate time.' Ibid.
II
31
Ever since Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), judicial consideration of school desegregation cases has begun with the standard:
32
'(I)n the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal.' Id., at 495, 74 S.Ct., at 692.
33
This has been reaffirmed time and again as the meaning of the Constitution and the controlling rule of law.
34
The target of the Brown holding was clear and forthright: the elimination of state-mandated or deliberately maintained dual school systems with certain schools for Negro pupils and others for white pupils. This duality and racial segregation were held to violate the Constitution in the cases subsequent to 1954, including particularly Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); Raney v. Board of Education, 391 U.S. 443, 88 S.Ct. 1697, 20 L.Ed.2d 727 (1968); Monroe v. Board of Comm'rs, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Wright v. Council of the City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972); United States v. Scotland Neck City Board of Education, 407 U.S. 484, 92 S.Ct. 2214, 33 L.Ed.2d 75 (1972).
The Swann case, of course, dealt
35
'with the problem of defining in more precise terms than heretofore the scope of the duty of school authorities and district courts in implementing Brown I and the mandate to eliminate dual systems and establish unitary systems at once.' 402 U.S., at 6, 91 S.Ct., at 1271.
36
In Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) (Brown II), the Court's first encounter with the problem of remedies in school desegregation cases, the Court noted:
37
'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.' Id., at 300, 75 S.Ct., at 756 (footnote omitted).
38
In further refining the remedial process, Swann held, the task is to correct, by a balancing of the individual and collective interests, 'the condition that offends the Constitution.' A federal remedial power may be exercised 'only on the basis of a constitutional violation' and, '(a)s with any equity case, the nature of the violation determines the scope of the remedy.' 402 U.S., at 16, 91 S.Ct., at 1276.
39
Proceeding from these basic principles, we first note that in the District Court the complainants sought a remedy aimed at the condition alleged to offend the Constitution—the segregation within the Detroit City School District.18 The court acted on this theory of the case and in its initial ruling on the 'Desegregation Area' stated:
40
'The task before this court, therefore, is now, and . . . has always been, now to desegregate the Detroit public schools.' 345 F.Supp., at 921.
41
Thereafter, however, the District Court abruptly rejected the proposed Detroit-only plans on the ground that 'while (they) would provide a racial mix more in keeping with the Black-White proportions of the student population (they) would accentuate the racial identifiability of the (Detroit) district as a Black school system, and would not accomplish desegregation.' Pet.App., 56a. '(T)he racial composition of the student body is such,' said the court, 'that the plan's implementation would clearly make the entire Detroit public school system racially identifiable' (Id., at 54a), 'leav(ing) many of its schools 75 to 90 per cent Black.' Id., at 55a. Consequently, the court reasoned, it was imperative to 'look beyond the limits of the Detroit school district for a solution to the problem of segregation in the Detroit public schools . . .' since '(s)chool district lines are simply matters of political convenience and may not be used to deny constitutional rights.' Id., at 57a. Accordingly, the District Court proceeded to redefine the relevant area to include areas of predominantly white pupil population in order to ensure that 'upon implementation, no school, grade or classroom (would be) substantially disproportionate to the overall pupil racial composition' of the entire metropolitan area.
42
While specifically acknowledging that the District Court's findings of a condition of segregation were limited to Detroit, the Court of Appeals approved the use of a metropolitan remedy largely on the grounds that it is
43
'impossible to declare 'clearly erroneous' the District Judge's conclusion that any Detroit only segregation plan will lead directly to a single segregated Detroit school district overwhelmingly black in all of its schools, surrounded by a ring of suburbs and suburban school districts overwhelmingly white in composition in a State in which the racial composition is 87 per cent white and 13 per cent black.' 484 F.2d, at 249.
44
Viewing the record as a whole, it seems clear that the District Court and the Court of Appeals shifted the primary focus from a Detroit remedy to the metropolitan area only because of their conclusion that total desegregation of Detroit would not produce the racial balance which they perceived as desirable. Both courts proceeded on an assumption that the Detroit schools could not be truly desegregated—in their view of what constituted desegregation—unless the racial composition of the student body of each school substantially reflected the racial composition of the population of the metropolitan area as a whole. The metropolitan area was then defined as Detroit plus 53 of the outlying school districts. That this was the approach the District Court expressly and frankly employed is shown by the order which expressed the court's view of the constitutional standard:
45
'Within the limitations of reasonable travel time and distance factors, pupil reassignments shall be effected within the clusters described in Exhibit P.M. 12 so as to achieve the greatest degree of actual desegregation to the end that, upon implementation, no school, grade or classroom (will be) substantially disproportionate to the overall pupil racial composition.' 345 F.Supp., st 918 (emphasis added).
46
In Swann, which arose in the context of a single independent school district, the Court held:
47
'If we were to read the holding of the District Court to require, as a matter of substantive constitutional right, any particular degree of racial balance or mixing, that approach would be disapproved and we would be obliged to reverse.' 402 U.S., at 24, 91 S.Ct., at 1280.
48
The clear import of this language from Swann is that desegregation, in the sense of dismantling a dual school system, does not require any particular racial balance in each 'school, grade or classroom.'19 See Spencer v. Kugler, 404 U.S. 1027, 92 S.Ct. 707, 30 L.Ed.2d 723 (1972).
49
Here the District Court's approach to what constituted 'actual desegregation' raises the fundamental question, not presented in Swann, as to the circumstances in which a federal court may order desegregation relief that embraces more than a single school district. The court's analytical starting point was its conclusion that school district lines are no more than arbitrary lines on a map drawn 'for political convenience.' Boundary lines may be bridged where there has been a constitutional violation calling for interdistrict relief, but the nation that school district lines may be casually ignored or treated as a mere administrative convenience is contrary to the history of public education in our country. No single tradition in public education is more deeply rooted than local control over the operation of schools; local autonomy has long been thought essential both to the maintenance of community concern and support for public schools and to quality of the educational process. See Wright v. Council of the City of Emporia, 407 U.S., at 469, 92 S.Ct., at 2206. Thus, in San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 50, 93 S.Ct. 1278, 1305, 36 L.Ed.2d 16 (1973), we observed that local control over the educational process affords citizens an opportunity to participate in decision-making, permits the structuring of school programs to fit local needs, and encourages 'experimentation, innovation, and a healthy competition for educational excellence.'
50
The Michigan educational structure involved in this case, in common with most States, provides for a large measure of local control,20 and a review of the scope and character of these local powers indicates the extent to which the interdistrict remedy approved by the two courts could disrupt and alter the structure of public education in Michigan. The metropolitan remedy would require, in effect, consolidation of 54 independent school districts historically administered as separate units into a vast new super school district. See n. 10, supra. Entirely apart from the logistical and other serious problems attending large-scale transportation of students, the consolidation would give rise to an array of other problems in financing and operating this new school system. Some of the more obvious questions would be: What would be the status and authority of the present popularly elected school boards? Would the children of Detroit be within the jurisdiction and operating control of a school board elected by the parents and residents of other districts? What board or boards would levy taxes for school operations in these 54 districts constituting the consolidated metropolitan area? What provisions could be made for assuring substantial equality in tax levies among the 54 districts, if this were deemed requisite? What provisions would be made for financing? Would the validity of long-term bonds be jeopardized unless approved by all of the component districts as well as the State? What body would determine that portion of the curricula now left to the discretion of local school boards? Who would establish attendance zones, purchase school equipment, locate and construct new schools, and indeed attend to all the myriad day-to-day decisions that are necessary to school operations affecting potentially more than three-quarters of a million pupils? See n. 10, supra.
51
It may be suggested that all of these vital operational problems are yet to be resolved by the District Court, and that this is the purpose of the Court of Appeals' proposed remand. But it is obvious from the scope of the interdistrict remedy itself that absent a complete restructuring of the laws of Michigan relating to school districts the District Court will become first, a de facto 'legislative authority' to resolve these complex questions, and then the 'school superintendent' for the entire area. This is a task which few, if any, judges are qualified to perform and one which would deprive the people of control of schools through their elected representatives.
52
Of course, no state law is above the Constitution. School district lines and the present laws with respect to local control, are not sacrosanct and if they conflict with the Fourteenth Amendment federal courts have a duty to prescribe appropriate remedies. See, e.g., Wright v. Council of the City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972); United States v. Scotland Neck City Board of Education, 407 U.S. 484, 92 S.Ct. 2214, 33 L.Ed.2d 75 (1972) (state or local officials prevented from carving out a new school district from an existing district that was in process of dismantling a dual school system); cf. Haney v. County Board of Education of Sevier County, 429 F.2d 364 (CA8 1970) (State contributed to separation of races by drawing of school district lines); United States v. Texas, 321 F.Supp. 1043 (ED Tex.1970), aff'd, 447 F.2d 441 (CA5 1971), cert. denied sub nom. Edgar v. United States, 404 U.S. 1016, 92 S.Ct. 675, 30 L.Ed.2d 663 (1972) (one or more school districts created and maintained for one race). But our prior holdings have been confined to violations and remedies within a single school district. We therefore turn to address, for the first time, the validity of a remedy mandating cross-district or interdistrict consolidation to remedy a condition of segregation found to exist in only one district.
53
The controlling principle consistently expounded in our holdings is that the scope of the remedy is determined by the nature and extent of the constitutional violation. Swann, 402 U.S., at 16, 91 S.Ct., at 1276. Before the boundaries of separate and autonomous school districts may be set aside by consolidating the separate units for remedial purposes or by imposing a cross-district remedy, it must first be shown that there has been a constitutional violation within one district that produces a significant segregative effect in another district. Specifically, it must be shown that racially discriminatory acts of the state or local school districts, or of a single school district have been a substantial cause of interdistrict segregation. Thus an interdistrict remedy might be in order where the racially discriminatory acts of one or more school districts caused racial segregation in an adjacent district, or where district lines have been deliberately drawn on the basis of race. In such circumstances an interdistrict remedy would be appropriate to eliminate the interdistrict segregation directly caused by the constitutional violation. Conversely, without an interdistrict violation and interdistrict effect, there is no constitutional wrong calling for an interdistrict remedy.
54
The record before us, voluminous as it is, contains evidence of de jure segregated conditions only in the Detroit schools; indeed, that was the theory on which the litigation was initially based and on which the District Court took evidence. See supra at 725—726. With no showing of significant violation by the 53 outlying school districts and no evidence of any interdistrict violation or effect, the court went beyond the original theory of the case as framed by the pleadings and mandated a metropolitan area remedy. To approve the remedy ordered by the court would impose on the outlying districts, not shown to have committed any constitutional violation, a wholly impermissible remedy based on a standard not hinted at in Brown I and II or any holding of this Court.
55
In dissent, Mr. Justice WHITE and Mr. Justice MARSHALL undertake to demonstrate that agencies having statewide authority participated in maintaining the dual school system found to exist in Detroit. They are apparently of the view that once such participation is shown, the District Court should have a relatively free hand to reconstruct school districts outside of Detroit in fashioning relief. Our assumption, arguendo, see infra, p. 748, that state agencies did participate in the maintenance of the Detroit system, should make it clear that it is not on this point that we part company.21 The difference between us arises instead from established doctrine laid down by our cases. Brown, supra; Green, supra; Swann, supra; Scotland Neck, supra; and Emporia, supra, each addressed the issue of constitutional wrong in terms of an established geographic and administrative school system populated by both Negro and white children. In such a context, terms such as 'unitary' and 'dual' systems, and 'racially identifiable schools,' have meaning, and the necessary federal authority to remedy the constitutional wrong is firmly established. But the remedy is necessarily designed, as all remedies are, to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct. Disparate treatment of white and Negro students occurred within the Detroit school system, and not elsewhere, and on this record the remedy must be limited to that system. Swann, supra, 402 U.S., at 16, 91 S.Ct., at 1276.
56
The constitutional right of the Negro respondents residing in Detroit is to attend a unitary school system in that district. Unless petitioners drew the district lines in a discriminatory fashion. or arranged for white students residing in the Detroit district to attend schools in Oakland and Macomb Counties, they were under no constitutional duty to make provisions for Negro students to do so. The view of the dissenters, that the existence of a dual system in Detroit can be made the basis for a decree requiring cross-district transportation of pupils, cannot be supported on the grounds that it represents merely the devising of a suitably flexible remedy for the violation of rights already established by our prior decisions. It can be supported only by drastic expansion of the constitutional right itself, an expansion without any support in either constitutional principle or precedent.22
III
57
We recognize that the six-volume record presently under consideration contains language and some specific incidental findings thought by the District Court to afford a basis for interdistrict relief. However, these comparatively isolated findings and brief comments concern only one possible interdistrict violation and are found in the context of a proceeding that, as the District Court conceded, included no proof of segregation practiced by any of the 85 suburban school districts surrounding Detroit. The Court of Appeals, for example, relied on five factors which, it held, amounted to unconstitutional state action with respect to the violations found in the Detroit system:
58
(1) It held the State derivatively responsible for the Detroit Board's violations on the theory that actions of Detroit as a political subdivision of the State were attributable to the State. Accepting, arguendo, the correctness of this finding of state responsibility for the segregated conditions within the city of Detroit, it does not follow that an interdistrict remedy is constitutionally justified or required. With a single exception, discussed later, there has been no showing that either the State or any of the 85 outlying districts engaged in activity that had a cross-district effect. The boundaries of the Detroit School District, which are coterminous with the boundaries of the city of Detroit, were established over a century ago by neutral legislation when the city was incorporated; there is no evidence in the record, nor is there any suggestion by the respondents, that either the original boundaries of the Detroit School District, or any other school district in Michigan, were established for the purpose of creating, maintaining, or perpetuating segregation of races. There is no claim and there is no evidence hinting that petitioner outlying schools districts and their processors, or the 30-odd other school districts in the tricounty area—but outside the District Court's 'desegregation area'—have ever maintained or operated anything but unitary school systems. Unitary school systems have been required for more than a century by the Michigan Constitution as implemented by state law.23 White the schools of only one district have been affected, there is no constitutional power in the courts to decree relief balancing the racial composition of that district's schools with those of the surrounding districts.
59
(2) There was evidence introduced at trial that, during the late 1950's, Carver School District, a predominantly Negro suburban district, contracted to have Negro high school students sent to a predominantly Negro school in Detroit. At the time, Carver was an independent school district that had no high school because, according to the trial evidence, 'Carver District . . . did not have a place for adequate high school facilities.' 484 F.2d., at 231. Accordingly, arrangements were made with Northern High School in the abutting Detroit School District so that the Carver high school students could obtain a secondary school education. In 1960 the Oak Park School District, a predominantly white suburban district, annexed the predominantly Negro Carver School District, through the initiative of local officials. Ibid. There is, of course, no claim that the 1960 annexation had a segregative purpose or result or that Oak Park now maintains a dual system.
60
According to the Court of Appeals, the arrangement during the late 1950's which allowed Carver students to be educated within the Detroit District was dependent upon the 'tacit or express' approval of the State Board of Education and was the result of the refusal of the white suburban districts to accept the Carver students. Although there is nothing in the record supporting the Court of Appeals' supposition that suburban white schools refused to accept the Carver students, it appears that this situation, whether with or without the State's consent, may have had a segregative effect on the school populations of the two districts involved. However, since 'the nature of the violation determines the scope of the remedy,' Swann, 402 U.S., at 16, 91 S.Ct., at 1276, this isolated instance effecting two of the school districts would not justify the broad metropolitanwide remedy contemplated by the District Court and approved by the Court of Appeals, particularly since it embraced potentially 52 districts having no responsibility for the arrangement and involved 503,000 pupils in addition to Detroit's 276,000 students.
61
(3) The Court of Appeals cited the enactment of state legislation (Act 48) which had the effect of rescinding Detroit's voluntary desegregation plan (the April 7 Plan). That plan, however, affected only 12 of 21 Detroit high schools and had no causal connection with the distribution of pupils by race between Detroit and the other school districts within the tricounty area.
62
(4) The court relied on the State's authority to supervise schoolsite selection and to approve building construction as a basis for holding the State responsible for the segregative results of the school construction program in Detroit. Specifically, the Court of Appeals asserted that during the period between 1949 and 1962 the State Board of Education exercised general authority as overseer of site acquisitions by local boards for new school construction, and suggested that this state-approved school construction 'fostered segregation throughout the Detroit Metropolitan area.' 484 F.2d, at 241. This brief comment, however, is not supported by the evidence taken at trial since that evidence was specifically limited to proof that schoolsite acquisition and school construction within the city of Detroit produced de jure segregation within the city itself. Id., at 235—238. Thus, there was no evidence suggesting that the State's activities with respect to either school construction or site acquisition within Detroit affected the racial composition of the school population outside Detroit or, conversely, that the State's school construction and site acquisition activities within the outlying districts affected the racial composition of the schools within Detroit.
63
(5) The Court of Appeals also relied upon the District Court's finding:
64
'This and other financial limitations, such as those on bonding and the working of the state aid formula whereby suburban districts were able to make far larger per pupil expenditures despite less tax effort, have created and perpetuated systematic educational inequalities.' Id., at 239.
65
However, neither the Court of Appeals nor the District Court offered any indication in the record or in their opinions as to how, if at all, the availability of state-financed aid for some Michigan students outside Detroit, but not for those within Detroit, might have affected the racial character of any of the State's school districts. Furthermore, as the respondents recognize, the application of our recent ruling in San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973), to this state education financing system is questionable, and this issue was not addressed by either the Court of Appeals or the District Court. This, again, underscores the crucial fact that the theory upon which the the case proceeded related solely to the establishment of Detroit city violations as a basis for desegregating Detroit schools and that, at the time of trial, neither the parties nor the trial judge was concerned with a foundation for interdistrict relief.24
IV
66
Petitioners have urged that they were denied due process by the manner in which the District Court limited their participation after intervention was allowed, thus precluding adequate opportunity to present evidence that they had committed no acts having a segregative effect in Detroit. In light of our holding that, absent an interdistrict violation, there is no basis for an interdistrict remedy, we need not reach these claims. It is clear, however, that the District Court, with the approval of the Court of Appeals, has provided an interdistrict remedy in the face of a record which shows no constitutional violations that would call for equitable relief except within the city of Detroit. In these circumstances there was no occasion for the parties to address, or for the District Court to consider whether there were racially discriminatory acts for which any of the 53 outlying districts were responsible and which had direct and significant segregative effect on schools of more than one district.
67
We conclude that the relief ordered by the District Court and affirmed by the Court of Appeals was based upon an erroneous standard and was unsupported by record evidence that acts of the outlying districts effected the discrimination found to exist in the schools of Detroit. Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion leading to prompt formulation of a decree directed to eliminating the segregation found to exist in Detroit city schools, a remedy which has been delayed since 1970.
68
Reversed and remanded.
69
Mr. Justice STEWART, concurring.
70
In joining the opinion of the Court, I think it appropriate, in view of some of the extravagant language of the dissenting opinions, to state briefly my understanding of what it is that the Court decides today.
71
The respondents commenced this suit in 1970, claiming only that a constitutionally impermissible allocation of educational facilities along racial lines had occurred in public schools within a single school district whose lines were coterminous with those of the city of Detroit. In the course of the subsequent proceedings, the District Court found that public school officials had contributed to racial segregation within that district by means of improper use of zoning and attendance patterns, optional-attendance areas, and building and site selection. This finding of a violation of the Equal Protection Clause was upheld by the Court of Appeals, and is accepted by this Court today. See ante, at 738 n. 18. In the present posture of the case, therefore, the Court does not deal with questions of substantive constitutional law. The basic issue now before the Court concerns, rather, the appropriate exercise of federal equity jurisdiction.1
72
No evidence was adduced and no findings were made in the District Court concerning the activities of school officials in districts outside the city of Detroit, and no school officials from the outside districts even participated in the suit until after the District Court had made the initial determination that is the focus of today's decision. In spite of the limited scope of the inquiry and the findings, the District Court concluded that the only effective remedy for the constitutional violations found to have existed within the city of Detroit was a desegregation plan calling for busing pupils to and from school districts outside the city. The District Court found that any desegregation plan operating wholly "within the corporate geographical limits of the city" would be deficient since it "would clearly make the entire Detroit public school system racially identifiable as Black." 484 F.2d 215, 244, 243. The Court of Appeals, in affirming the decision that an interdistrict remedy was necessary, noted that a plan limited to the city of Detroit 'would result in an all black school system immediately surrounded by practically all white suburban school systems, with an overwhelmingly white majority population in the total metropolitan area.' Id., at 245.
73
The courts were in error for the simple reason that the remedy they thought necessary was not commensurate with the constitutional violation found. Within a single school district whose officials have been shown to have engaged in unconstitutional racial segregation, a remedial decree that affects every individual school may be dictated by 'common sense,' see Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 203, 93 S.Ct. 2686, 2695, 37 L.Ed.2d 548, and indeed may provide the only effective means to eliminate segregation 'root and branch,' Green v. County School Board of New Kent County, 391 U.S. 430, 438, 88 S.Ct. 1689, 1693, 20 L.Ed.2d 716, and 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. See Keyes, supra, at 198—205, 93 S.Ct., at 2692—2696. But in this case the Court of Appeals approved the concept of a remedial decree that would go beyond the boundaries of the district where the constitutional violation was found, and include schools and schoolchildren in many other school districts that have presumptively been administered in complete accord with the Constitution.
74
The opinion of the Court convincingly demonstrates, ante, at 742—743, that traditions of local control of schools, together with the difficulty of a judicially supervised restructuring of local administration of schools, render improper and inequitable such an interdistrict response to a constitutional violation found to have occurred only within a single school district.
75
This is not to say, however, that an interdistrict remedy of the sort approved by the Court of Appeals would not be proper, or even necessary, in other factual situations. Were it to be shown, for example, that state officials had contributed to the separation of the races by drawing or redrawing school district lines, see Haney v. County Board of Education of Sevier County, 429 F.2d 364; cf. Wright v. Council of the City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51; United States v. Scotland Neck City Board of Education, 407 U.S. 484, 92 S.Ct. 2214, 33 L.Ed.2d 75; by transfer of school units between districts, United States v. Texas, 321 F.Supp. 1043, aff'd, 447 F.2d 441; Turner v. Warren County Board of Education, 313 F.Supp. 380; or by purposeful racially discriminatory use of state housing or zoning laws, then a decree calling for transfer of pupils across district lines or for restructuring of district lines might well be appropriate.
76
In this case, however, no such interdistrict violation was shown. Indeed, no evidence at all concerning the administration of schools outside the city of Detroit was presented other than the fact that these schools contained a higher proportion of white pupils than did the schools within the city. Since the mere fact of different racial compositions in contiguous districts does not itself imply or constitute a violation of the Equal Protection Clause in the absence of a showing that such disparity was imposed, fostered, or encouraged by the State or its political subdivisions, it follows that no interdistrict violation was shown in this case.2 The formulation of an inter-distrit remedy was thus simply not responsive to the factual record before the District Court and was an abuse of that court's equitable powers.
77
In reversing the decision of the Court of Appeals this Court is in no way turning its back on the proscription of state-imposed segregation first voiced in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, or on the delineation of remedial powers and duties most recently expressed in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554. In Swann the Court addressed itself to the range of equitable remedies available to the courts to effectuate the desegregation mandated by Brown and its progeny, noting that the task in choosing appropriate relief is 'to correct . . . the condition that offends the Constitution,' and that 'the nature of the violation determines the scope of the remedy . . .' Id., at 16, 91 S.Ct., at 1276.
78
The disposition of this case thus falls squarely under these principles. The only 'condition that offends the Constitution' found by the District Court in this case is the existence of officially supported segregation in and among public schools in Detroit itself. There were no findings that the differing racial composition between schools in the city and in the outlying suburbs was caused by official activity of any sort. It follows that the decision to include in the desegregation plan pupils from school districts outside Detroit was not predicated upon any constitutional violation involving those school districts. By approving a remedy that would reach beyond the limits of the city of Detroit to correct a constitutional violation found to have occurred solely within that city the Court of Appeals thus went beyond the governing equitable principles established in this Court's decisions.
79
Mr. Justice DOUGLAS, dissenting.
80
The Court of Appeals has acted responsibly in these cases and we should affirm its judgment. This was the fourth time the case was before it over a span of less than three years. The Court of Appeals affirmed the District Court on the issue of segregation and on the 'Detroit-only' plans of desegregation. The Court of Appeals also approved in principle the use of a metropolitan area plan, vacating and remanding only to allow the other affected school districts to be brought in as parties, and in other minor respects.
81
We have before us today no plan for integration. The only orders entered so far are interlocutory. No new principles of law are presented here. Metropolitan treatment of metropolitan problems is commonplace. If this were a sewage problem or a water problem, or an energy problem, there can be no doubt that Michigan would stay well within federal constitutional bounds if it sought a metropolitan remedy. In Bradley v. School Board of City of Richmond, 4 Cir., 462 F.2d 1058, aff'd by an equally divided Court, 412 U.S. 92, 93 S.Ct. 1952, 36 L.Ed.2d 771, we had a case involving the Virginia school system where local school boards had 'exclusive jurisdiction' of the problem, not 'the State Board of Education,' 462 F.2d, at 1067. Here the Michigan educational system is unitary, maintained and supported by the legislature and under the general supervision of the State Board of Education.1 The State controls the boundaries of school districts.2 The State supervises schoolsite selection.3 The construction is done through municipal bonds approved by several state agencies.4 Education in Michigan is a state project with very little completely local control,5 except that the schools are financed locally, not on a statewide basis. Indeed the proposal to put school funding in Michigan on a statewide basis was defeated at the polls in November 1972.6 Yet the school districts by state law are agencies of the State.7 State action is indeed challenged as violating the Equal Protection Clause. Whatever the reach of that claim may be, it certainly is aimed at discrimination based on race.
82
Therefore as the Court of Appeals held there can be no doubt that as a matter of Michigan law the State itself has the final say as to where and how school district lines should be drawn.8
83
When we rule against the metropolitan area remedy we take a step that will likely put the problems of the blacks and our society back to the period that antedated the 'separate but equal' regime of Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256. The reason is simple.
84
The inner core of Detroit is now rather solidly black;9 and the blacks, we know, in many instances are likely to be poorer,10 just as were the Chicanos in San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16. By that decision the poorer school districts11 must pay their own way. It is therefore a foregone conclusion that we have now given the States a formula whereby the poor must pay their own way.12
85
Today's decision, given Rodriguez, means that there is no violation of the Equal Protection Clause though the schools are segregated by race and though the black schools are not only 'separate' but 'inferior.'
86
So far as equal protection is concerned we are now in a dramatic retreat from the 7-to-1 decision in 1896 that blacks could be segregated in public facilities, provided they received equal treatment.
87
As I indicated in Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 214—217, 93 S.Ct. 2686, 2700—2701, 37 L.Ed.2d 548, there is so far as the school cases go no constitutional difference between de facto and de jure segregation. Each school board performs state action for Fourteenth Amendment purposes when it draws the lines that confine it to a given area, when it builds schools at particular sites, or when it allocates students. The creation of the school districts in Metropolitan Detroit either maintained existing segregation or caused additional segregation. Restrictive covenants maintained by state action or inaction build black ghettos. It is state action when public funds are dispensed by housing agencies to build racial ghettos. Where a community is racially mixed and school authorities segregate schools, or assign black teachers to black schools or close schools in fringe areas and build new schools in black areas and in more distant white areas, the State creates and nurtures a segregated school system, just as surely as did those States involved in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, when they maintained dual school systems.
88
All these conditions and more were found by the District Court to exist. The issue is not whether there should be racial balance but whether the State's use of various devices that end up with black schools and white schools brought the Equal Protection Clause into effect. Given the State's control over the educational system in Michigan, the fact that the black schools are in one district and the white schools are in another is not controlling—either constitutionally or equitably.13 No specific plan has yet been adopted. We are still at an interlocutory stage of a long drawn-out judicial effort at school desegregation. It is conceivable that ghettos develop on their own without any hint of state action. But since Michigan by one device or another has over the years created black school districts and white school districts, the task of equity is to provide a unitary system for the affected area where, as here, the State washes its hands of its own creations.
89
Mr. Justice WHITE, with whom Mr. Justice DOUGLAS, Mr. Justice BRENNAN, and Mr. Justice MARSHALL join, dissenting.
90
The District Court and the Court of Appeals found that over a long period of years those in charge of the Michigan public schools engaged in various practices calculated to effect the segregation of the Detroit school system. The Court does not question these findings, nor could it reasonably do so. Neither does it question the obligation of the federal courts to devise a feasible and effective remedy. But it promptly cripples the ability of the judiciary to perform this task, which is of fundamental importance to our constitutional system, by fashioning a strict rule that remedies in school cases must stop at the school district line unless certain other conditions are met. As applied here, the remedy for unquestioned violations of the protection rights of Detroit's Negroes by the Detroit School Board and the State of Michigan must be totally confined to the limits of the school district and may not reach into adjoining or surrounding districts unless and until it is proved there has been some sort of 'interdistrict violation'—unless unconstitutional actions of the Detroit School Board have had a segregative impact on other districts, or unless the segregated condition of the Detroit schools has itself been influenced by segregative practices in those surrounding districts into which it is proposed to extend the remedy.
91
Regretfully, and for several reasons, I can join neither the Court's judgment nor its opinion. The core of my disagreement is that deliberate acts of segregation and their consequences will go unremedied, not because a remedy would be infeasible or unreasonable in terms of the usual criteria governing school desegregation cases, but because an effective remedy would cause what the Court considers to be undue administrative inconvenience to the State. The result is that the State of Michigan, the entity at which the Fourteenth Amendment is directed, has successfully insulated itself from its duty to provide effective desegregation remedies by vesting sufficient power over its public schools in its local school districts. If this is the case in Michigan, it will be the case in most States.
92
There are undoubted practical as well as legal limits to the remedial powers of federal courts in school desegregation cases. The Court has made it clear that the achievement of any particular degree of racial balance in the school system is not required by the Constitution; nor may it be the primary focus of a court in devising an acceptable remedy for de jure segregation. A variety of procedures and techniques are available to a district court engrossed in fashioning remedies in a case such as this; but the courts must keep in mind that they are dealing with the process of educating the young, including the very young. The task is not to devise a system of pains and penalties to punish constituttional violations brought to light. Rather, it is to desegregate an educational system in which the races have been kept apart, without, at the same time, losing sight of the central educational function of the schools.
93
Viewed in this light, remedies calling for school zoning, pairing, and pupil assignments, become more and more suspect as they require that schoolchildren spend more and more time in buses going to and from school and that more and more educational dollars be diverted to transportation systems. Manifestly, these considerations are of immediate and urgent concern when the issue is the desegregation of a city school system where residential patterns are predominantly segregated and the respective areas occupied by blacks and whites are heavily populated and geographically extensive. Thus, if one postulates a metropolitan school system covering a sufficiently large area, with the population evenly divided between whites and Negroes and with the races occupying identifiable residential areas, there will be very real practical limits on the extent to which racially identifiable schools can be eliminated within the school district. It is also apparent that the larger the proportion of Negroes in the area, the more difficult it would be to avoid having a substantial number of all-black or nearly all-black schools.
94
The Detroit school district is both large and heavily populated. It covers 139.6 square miles, encircles two entirely separate cities and school districts, and surrounds a third city on three sides. Also, whites and Negroes live in identifiable areas in the city. The 1970 public school enrollment in the city school district totaled 289,763 and was 63.6% Negro and 34.8% white.1 If 'racial balance' were achieved in every school in the district, each school would be approximately 64% Negro. A remedy confined to the district could achieve no more desegregation. Furthermore, the proposed intracity remedies were beset with practical problems. None of the plans limited to the school district was satisfactory to the District Court. The most promising proposal, submitted by respondents, who were the plaintiffs in the District Court, would 'leave many of its schools 75 to 90 per cent Black.' 484 F.2d 215, 244 (CA6 1973).2 Transportation on a 'vast scale' would be required; 900 buses would have to be purchased for the transportation of pupils who are not now bused. Id., at 243. The District Court also found that the plan 'would change a school system which is now Black and White to one that would be perceived as Black, thereby increasing the flight of Whites from the city and the system, thereby increasing the Black student population.' Id., at 244. For the District Court, '(t)he conclusion, under the evidence in this case, is inescapable that relief of segregation in the public schools of the City of Detroit cannot be accomplished within the corporate geographical limits of the city.' Ibid.
95
The District Court therefore considered extending its remedy of the suburbs. After hearings, it concluded that a much more effective desegregation plan could be implemented if the suburban districts were included. In proceeding to design its plan on the basis that student bus rides to and from school should not exceed 40 minutes each way as a general matter, the court's express finding was that '(f)or all the reasons stated heretofore including time, distance, and transportation factors—desegregation within the area described is physically easier and more practicable and feasible, than desegregation efforts limited to the corporate geographic limits of the city of Detroit.' 345 F.Supp. 914, 930 (ED Mich.1972).
96
The Court of Appeals agreed with the District Court that the remedy must extend beyond the city limits of Detroit. It concluded that '(i)n the instant case the only feasible desegregation plan involves the crossing of the boundary lines between the Detroit School District and adjacent or nearby school districts for the limited purpose of providing an effective desegregation plan.' 484 F.2d, at 249. (Emphasis added.) It also agreed that 'any Detroit only desegregation plan will lead directly to a single segregated Detroit school district overwhelmingly black in all of its schools, surrounded by a ring of suburbs and suburban school districts overwhelmingly white in composition in a State in which the racial composition is 87 per cent white and 13 per cent black.' Ibid. There was 'more than ample support for the District Judge's findings of unconstitutional segregation by race resulting in major part from action and inaction of public authorities, both local and State. . . . Under this record a remedial order of a court of equity which left the Detroit school system overwhelmingly black (for the foreseeable future) surrounded by suburban school systems overwhelmingly white cannot correct the constitutional violations herein found.' Id., at 250. To conclude otherwise, the Court of Appeals announced, would call up 'haunting memories of the now long overruled and discredited 'separate but equal doctrine' of Plessy v. Ferguson, 163 U.S. 537 (16 S.Ct. 1138, 41 L.Ed. 256) . . . (1896),' and 'would be opening a way to nullify Brown v. Board of Education which overruled Plessy. . . .' 484 F.2d, at 249.
97
This Court now reverses the Court of Appeals. It does not question the District Court's findings that any feasible Detroit-only plan would leave many schools 75 to 90 percent black and that the district would become progressively more black as whites left the city. Neither does the Court suggest that including the suburbs in a desegregation plan would be impractical or infeasible because of educational considerations, because of the number of children requiring transportation, or because of the length of their rides. Indeed, the Court leaves unchallenged the District Court's conclusion that a plan including the suburbs would be physically easier and more practical and feasible than a Detroit-only plan. Whereas the most promising Detroit-only plan, for example, would have entailed the purchase of 900 buses, the metropolitan plan would involve the acquisition of no more than 350 new vehicles.
98
Despite the fact that a metropolitan remedy, if the findings of the District Court accepted by the Court of Appeals are to be credited, would more effectively desegregate the Detroit schools, would prevent resegregation,3 and would be easier and more feasible from many standpoints, the Court fashions out of whole cloth an arbitrary rule that remedies for constitutional violations occurring in a single Michigan school district must stop at the school district line. Apparently, no matter how much less burdensome or more effective and efficient in many respects, such as transportation, the metropolitan plan might be, the school district line may not be crossed. Otherwise, it seems, there would be too much disruption of the Michigan scheme for managing its educational system, too much confusion, and too much administrative burden.
99
The District Court, on the scene and familiar with local conditions, had a wholly different view. The Court of Appeals also addressed itself at length to matters of local law and to the problems that interdistrict remedies might present to the State of Michigan. Its conclusion, flatly contrary to that of this Court, was that 'the constitutional right to equality before the law (is not) hemmed in by the boundaries of a school district' and that an interdistrict remedy
100
'is supported by the status of school districts under Michigan law and by the historical control exercised over local school districts by the legislature of Michigan and by State agencies and officials . . .. (I)t is well established under the Constitution and laws of Michigan that the public school system is a State function and that local school districts are instrumentalities of the State created for administrative convenience.'4 484 F.2d, at 245—246.
101
I am surprised that the Court, sitting at this distance from the State of Michigan, claims better insight than the Court of Appeals and the District Court as to whether an interdistrict remedy for equal protection violations practiced by the State of Michigan would involve undue difficulties for the State in the management of its public schools. In the area of what constitutes an acceptable desegregation plan, 'we must of necessity rely to a large extent, as this Court has for more than 16 years, on the informed judgment of the district courts in the first instance and on courts of appeals.' Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 28, 91 S.Ct. 1267, 1282, 28 L.Ed.2d 554 (1971). Obviously, whatever difficulties there might be, they are surmountable; for the Court itself concedes that, had there been sufficient evidence of an interdistrict violation, the District Court could have fashioned a single remedy for the districts implicated rather than a different remedy for each district in which the violation had occurred or had an impact.
102
I am even more mystified as to how the Court can ignore the legal reality that the constitutional violations, even if occurring locally, were committed by governmental entities for which the State is responsible and that it is the State that must respond to the command of the Fourteenth Amendment. An interdistrict remedy for the infringements that occurred in this case is well within the confines and powers of the State, which is the governmental entity ultimately responsible for desegregating its schools. The Michigan Supreme Court has observed that '(t)he school district is a State agency,' Attorney General ex rel. Kies v. Lowrey, 131 Mich. 639, 644, 92 N.W. 289, 290 (1902), and that "(e)ducation in Michigan belongs to the State. It is no part of the local self-government inherent in the township or municipality, except so far as the legislature may choose to make it such. The Constitution has turned the whole subject over to the legislature. . . ." Attorney General ex rel. Lacharias v. Detroit Board of Education, 154 Mich. 584, 590, 118 N.W. 606, 609 (1908).
103
It is unnecessary to catalogue at length the various public misdeeds found by the District Court and the Court of Appeals to have contributed to the present segregation of the Detroit public schools. The legislature contributed directly by enacting a statute overriding a partial high school desegregation plan voluntarily adopted by the Detroit Board of Education. Indirectly, the trial court found the State was accountable for the thinly disguised, pervasive acts of segregation committed by the Detroit Board,5 for Detroit's school construction plans that would promote segregation, and for the Detroit school district's not having funds for pupil transportation within the district. The State was also chargeable with responsibility for the transportation of Negro high school students in the late 1950's from the suburban Ferndale School District, past closer suburban and Detroit high schools with predominantly white student bodies, to a predominantly Negro high school within Detroit. Swann v. Charlotte-Mecklenburg Board of Education, supra, 402 U.S., at 20—21, 91 S.Ct. at 1278, and Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973), make abundantly clear that the tactics employed by the Detroit Board of Education, a local instrumentality of the State, violated the constitutional rights of the Negro students in Detroit's public schools and required equitable relief sufficient to accomplish the maximum, practical desegregation within the power of the political body against which the Fourteenth Amendment directs its proscriptions. No 'State' may deny any individual the equal protection of the laws; and if the Constitution and the Supremacy Clause are to have any substance at all, the courts must be free to devise workable remedies against the political entity with the effective power to determine local choice. It is also the case here that the State's legislative interdiction of Detroit's voluntary effort to desegregate its school system was unconstitutional. See North Carolina State Board of Education v. Swann, 402 U.S. 43, 91 S.Ct. 1284, 28 L.Ed.2d 586 (1971).
104
The Court draws the remedial line at the Detroit school district boundary, even though the Fourteenth Amendment is addressed to the State and even though the State denies equal protection of the laws when its public agencies, acting in its behalf, invidiously discriminate. The State's default is 'the condition that offends the Constitution,' Swann v. Charlotte-Mecklenburg Board of Education, supra, 402 U.S., at 16, 91 S.Ct. at 1277, and state officials may therefore be ordered to take the necessary measures to completely eliminate from the Detroit public schools 'all vestiges of state-imposed segregation.' Id., at 15, 91 S.Ct. at 1275. I cannot understand, nor does the majority satisfactorily explain, why a federal court may not order an appropriate interdistrict remedy, if this is necessary or more effective to accomplish this constitutionally mandated task. As the Court unanimously observed in Swann: 'Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.' Ibid. In this case, both the right and the State's Fourteenth Amendment violation have concededly been fully established, and there is no acceptable reason for permitting the party responsible for the constitutional violation to contain the remedial powers of the federal court within administrative boundaries over which the transgressor itself has plenary power.
105
The unwavering decisions of this Court over the past 20 years support the assumption of the Court of Appeals that the District Court's remedial power does not cease at the school district line. The Court's first formulation of the remedial principles to be followed in disestablishing racially discriminatory school systems recognized the variety of problems arising from different local school conditions and the necessity for that 'practical flexibility' traditionally associated with courts of equity. Brown v. Board of Education, 349 U.S. 294, 299—301, 75 S.Ct. 753, 755 756, 99 L.Ed. 1083, (1955) (Brown II). Indeed, the district courts to which the Brown cases were remanded for the formulation of remedial decrees were specifically instructed that they might consider, inter alia, 'revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis . . ..' Id., at 300—301, 75 S.Ct. at 756. The malady addressed in Brown II was the statewide policy of requiring or permitting school segregation on the basis of race, while the record here concerns segregated schools only in the city of Detroit. The obligation to rectify the unlawful condition nevertheless rests on the State. The permissible revision of school districts contemplated in Brown II rested on the State's responsibility for desegregating its unlawfully segregated schools, not on any segregative effect which the condition of segregation in one school district might have had on the schools of a neighboring district. The same situation obtains here and the same remedial power is available to the District Court.
106
Later cases reinforced the clearly essential rules that state officials are fully answerable for unlawfully caused conditions of school segregation which can effectively be controlled only by steps beyond the authority of local school districts to take, and that the equity power of the district courts includes the ability to order such measures implemented. When the highest officials of the State of Arkansas impeded a federal court order to desegregate the public schools under the immediate jurisdiction of the Little Rock School Board, this Court refused to accept the local board's assertion of its good faith as a legal excuse for delay in implementing the desegregation order. The Court emphasized that 'from the point of view of the Fourteenth Amendment, they (the local school board members) stand in this litigation as the agents of the State.' Cooper v. Aaron, 358 U.S. 1, 16, 78 S.Ct. 1401, 1408, 3 L.Ed.2d 5 (1958). Perhaps more importantly for present purposes, the Court went on to state:
107
'The record before us clearly establishes that the growth of the Board's difficulties to a magnitude beyond its unaided power to control is the product of state action. Those difficulties . . . can also be brought under control by state action.' Ibid.
108
See also Griffin v. School Board, 377 U.S. 218, 228, 233—234, 84 S.Ct. 1226, 1231, 1234—1235, 12 L.Ed.2d 256 (1964).
109
In the context of dual school systems, the Court subsequently made clear 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' and to come forward with a desegregation plan that 'promises realistically to work now.' Green v. County School Board of New Kent County, 391 U.S. 430, 437—438, 439, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716 (1968). 'Freedom of choice' plans were rejected as acceptable desegregation measures where 'reasonably available other ways . . . promising speedier and more effective conversion to a unitary, nonracial school system . . .' exist. Id., at 441, 88 S.Ct., at 1696. Imperative insistence on immediate full desegregation of dual school systems 'to operate now and hereafter only unitary schools' was reiterated in Alexander v. Holmes County Board of Education, 396 U.S. 19, 20, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969), and Carter v. West Feliciana Parish School Board, 396 U.S. 290, 90 S.Ct. 608, 24 L.Ed.2d 477 (1970).
110
The breadth of the equitable authority of the district courts to accomplish these comprehensive tasks was reaffirmed in much greater detail in Swann v. Charlotte-Mecklenburg Board of Education, supra, and the companion case of Davis v. School Comm'rs of Mobile County, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1971), where there was unanimous assent to the following propositions:
111
'Having once found a violation, the district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation. A district court may and should consider the use of all available techniques including restructuring of attendance zones and both contiguous and noncontiguous attendance zones. . . . The measure of any desegregation plan is its effectiveness.' Id., at 37, 91 S.Ct. at 1292.
112
No suggestion was made that interdistrict relief was not an available technique. In Swann v. Charlotte-Mecklenburg Board of Education itself, the Court, without dissent, recognized that the District Judge, in fulfilling his obligation to 'make every effort to achieve the greatest possible degree of actual desegregation(,) will thus necessarily be concerned with the elimination of one-race schools.' 402 U.S., at 26, 91 S.Ct., at 1281. Nor was there any dispute that to break up the dual school system, it was within the District Court's 'broad remedial powers' to employ a 'frank—and sometimes drastic—gerrymandering of school districts and attendance zones,' as well as 'pairing, 'clustering,' or 'grouping' of schools,' to desegregate the 'formerly all-Negro schools,' despite the fact that these zones might not be compact or contiguous and might be 'on opposite ends of the city.' Id., at 27, 91 S.Ct. at 1282. The school board in that case had jurisdiction over a 550-square-mile area encompassing the city of Charlotte and surrounding Mecklenburg County, North Carolina. The Mobile County, Alabama, board in Davis embraced a 1,248-squaremile area, including the city of Mobile. Yet the Court approved the District Court's authority to award countywide relief in each case in order to accomplish desegregation of the dual school system.
113
Even more recently, the Court specifically rejected the claim that a new school district, which admittedly would operate a unitary school system within its borders, was beyond the reach of a court-ordered desegregation plan for other school districts, where the effectiveness of the plan as to the other districts depended upon the availability of the facilities and student population of the new district. In Wright v. Council of City of Emporia, 407 U.S. 451, 470, 92 S.Ct. 2196, 2207, 33 L.Ed.2d 51 (1972), we held 'that a new school district may not be created where its effect would be to impede the process of dismantling a dual system.' Mr. Justice Stewart's opinion for the Court made clear that if a proposal to erect new district boundary lines 'would impede the dismantling of the (pre-existing) dual system, then a district court, in the exercise of its remedial discretion, may enjoin it from being carried out.' Id., at 460, 92 S.Ct. at 2203. In United States v. Scotland Neck Board of Education, 407 U.S. 484, 92 S.Ct. 2214, 33 L.Ed.2d 75 (1972), this same standard was applied to forbid North Carolina from creating a new city school district within a larger district which was in the process of dismantling a dual school system. The Court noted that if establishment of the new district were permitted, the 'traditional racial identities of the schools in the area would be maintained,' id., at 490, 92 S.Ct., at 2717.
114
Until today, the permissible contours of the equitable authority of the district courts to remedy the unlawful establishment of a dual school system have been extensive, adaptable, and fully responsive to the ultimate goal of achieving 'the greatest possible degree of actual desegregation.' There are indeed limitations on the equity powers of the federal judiciary, but until now the Court had not accepted the proposition that effective enforcement of the Fourteenth Amendment could be limited by political or administrative boundary lines demarcated by the very State responsible for the constitutional violation and for the disestablishment of the dual system. Until now the Court has instead looked to practical considerations in effectuating a desegregation decree, such as excessive distance, transportation time, and hazards to the safety of the schoolchildren involved in a proposed plan. That these broad principles have developed in the context of dual school systems compelled or authorized by state statute at the time of Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1945) (Brown I), does not lessen their current applicability to dual systems found to exist in other contexts, like that in Detroit, where intentional school segregation does not stem from the compulsion of state law, but from deliberate individual actions of local and state school authorities directed at a particular school system. The majority properly does not suggest that the duty to eradicate completely the resulting dual system in the latter context is any less than in the former. But its reason for incapacitating the remedial authority of the federal judiciary in the presence of school district perimeters in the latter context is not readily apparent.
115
The result reached by the Court certainly cannot be supported by the theory that the configuration of local governmental units is immune from alteration when necessary to redress constitutional violations. In addition to the well-established principles already noted, the Court has elsewhere required the public bodies of a State to restructure the State's political subdivisions to remedy infringements of the constitutional rights of certain members of its populace, notably in the reapportionment cases. In Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), for example, which held that equal protection of the laws demands that the seats in both houses of a bicameral state legislature be apportioned on a population basis, thus necessitating wholesale revision of Alabama's voting districts, the Court remarked:
116
'Political subdivisions of States—counties, cities, or whatever—never were and never have been considered as sovereign entities. Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions.' Id., at 575, 84 S.Ct., at 1389.
117
And even more pointedly, the Court declared in Gomillion v. Lightfoot, 364 U.S. 339, 334—345, 81 S.Ct. 125, 129, 5 L.Ed.2d 110 (1960), that '(l) egislative control of municipalities, no less than other state power, lies within the scope of relevant limitations imposed by the United States Constitution.
118
Nor does the Court's conclusion follow from the talismanic invocation of the desirability of local control over education. Local autonomy over school affairs, in the sense of the community's participation in the decisions affecting the education of its children, is, of course, an important interest. But presently constituted school district lines do not delimit fixed and unchangeable areas of a local educational community. If restructuring is required to meet constitutional requirements, local authority may simply be redefined in terms of whatever configuration is adopted, with the parents of the children attending schools in the newly demarcated district or attendance zone continuing their participation in the policy management of the schools with which they are concerned most directly. The majority's suggestion that judges should not attempt to grapple with the administrative problems attendant on a reorganization of school attendance patterns is wholly without foundation. It is precisely this sort of task which the district courts have been properly exercising to vindicate the constitutional rights of Negro students since Brown I and which the Court has never suggested they lack the capacity to perform. Intradistrict revisions of attendance zones, and pairing and grouping of schools, are techniques unanimously approved in Swann v. Charlotte-Mecklenburg Board of Education which entail the same sensitivity to the interet of parents in the education their children receive as would an interditrict plan which is likely to employ the very same methods. There is no reason to suppose that the District Court, which has not yet adopted a final plan of desegregation, would not be as capable of giving or as likely to give sufficient weight to the interest in community participation in schools in an interdistrict setting, consistent with the dictates of the Fourteenth Amendment. The majority's assumption that the District Court would act otherwise is a radical departure from the practical flexibility previously left to the equity powers of the federal judiciary.
119
Finally, I remain wholly unpersuaded by the Court's assertion that 'the remedy is necessarily designed, as all remedies are, to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct.' Ante, p. 746. In the first place, under this premise the Court's judgment is itself infirm; for had the Detroit school system not followed an official policy of segregation throughout the 1950's and 1960's, Negroes and whites would have been going to school together. There would have been no, or at least not as many, recognizable Negro schools and no, or at least not as many, white schools, but 'just schools,' and neither Negroes nor whites would have suffered from the effects of segregated education, will all its shortcomings. Surely the Court's remedy will not restore to the Negro community, stigmatized as it was by the dual school system, what it would have enjoyed over all or most of this period if the remedy is confined to present-day Detroit; for the maximum remedy available within that area will leave many of the schools almost totally black, and the system itself will be predominantly black and will become increasingly so. Moreover, when a State has engaged in acts of official segregation over a lengthy period of time, as in the case before us, it is unrealistic to suppose that the children who were victims of the State's unconstitutional conduct could now be provided the benefits of which they were wrongfully deprived. Nor can the benefits which accrue to school systems in which schoolchildren have not been officially segregated, and to the communities supporting such school systems, be fully and immediately restored after a substantial period of unlawful segregation. The education of children of different races in a desegregated environment has unhappily been lost, along with the social, economic, and political advantages which accompany a desegregated school system as compared with an unconstitutionally segregated system. It is for these reasons that the Court has consistently followed the course of requiring the effects of past official segregation to be eliminated 'root and branch' by imposing, in the present, the duty to provide a remedy which will achieve 'the greatest possible degree of actual desegregation, taking into account the practicalities of the situation.' It is also for these reasons that once a constitutional violation has been found, the district judge obligated to provide such a remedy 'will thus necessarily be concerned with the elimination of one-race schools.' These concerns were properly taken into account by the District Judge in this case. Confining the remedy to the boundaries of the Detroit district is quite unrelated either to the goal of achieving maximum desegregation or to those intensely practical considerations, such as the extent and expense of transportation, that have imposed limits on remedies in cases such as this. The Court's remedy, in the end, is essentially arbitrary and will leave serious violations of the Constitution substantially unremedied.
120
I agree with my Brother DOUGLAS that the Court of Appeals has acted responsibly in these cases. Regretably, the majority's arbitrary limitation on the equitable power of federal district courts, based on the invisible borders of local school districts, is unrelated to the State's responsibility for remedying the constitutional wrongs visited upon the Negro schoolchildren of Detroit. It is oblivious to the potential benefits of metropolitan relief, to the noneducational communities of interest among neighborhoods located in and sometimes bridging different school districts, and to the considerable interdistrict cooperation already existing in various educational areas. Ultimately, it is unresponsive to the goal of attaining the utmost actual desegregation consistent with restraints of practicability and thus augurs the frequent frustration of the remedial powers of the federal courts.
121
Here the District Court will be forced to impose an intracity desegregation plan more expensive to the district, more burdensome for many of Detroit's Negro students, and surely more conductive to white flight than a metropolitan plan would be—all of this merely to avoid what the Detroit School Board, the District Court, and the en banc Court of Appeals considered to be the very manageable and quite surmountable difficulties that would be involved in extending the desegregation remedy to the suburban school districts.
122
I am therefore constrained to record my disagreement and dissent.
123
Mr. Justice MARSHALL, with whom Mr. Justice DOUGLAS, Mr. Justice BRENNAN, and Mr. Justice WHITE join, dissenting.
124
In Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), this Court held that segregation of children in public schools on the basis of race deprives minority group childen of equal educational opportunities and therefore denies them the equal protection of the laws under the Fourteenth Amendment. This Court recognized then that remedying decades of segregation in public education would not be an easy task. Subsequent events, unfortunately, have seen that prediction bear bitter fruit. But however imbedded old ways, however ingrained old prejudices, this Court has not been diverted from its appointed task of making 'a living truth' of our constitutional ideal of equal justice under law. Cooper v. Aaron, 358 U.S. 1, 20, 78 S.Ct. 1401, 1410, 3 L.Ed.2d 5 (1958).
125
After 20 years of small, often difficult steps toward that great end, the Court today takes a giant step backwards. Notwithstanding a record showing widespread and pervasive racial segregation in the educational system provided by the State of Michigan for children in Detroit, this Court holds that the District Court was powerless to require the State to remedy its constitutional violation in any meaningful fashion. Ironically purporting to base its result on the principle that the scope of the remedy in a desegregation case should be determined by the nature and the extent of the constitutional violation, the Court's answer is to provide no remedy at all for the violation proved in this case, thereby guaranteeing that Negro children in Detroit will receive the same separate and inherently unequal education in the future as they have been unconstitutionally afforded in the past.
126
I cannot subscribe to this emasculation of our constitutional guarantee of equal protection of the laws and must respectfully dissent. Our precedents, in my view, firmly establish that where, as here, state-imposed segregation has been demonstrated, it becomes the duty of the State to eliminate root and branch all vestiges of racial discrimination and to achieve the greatest possible degree of actual desegregation. I agree with both the District Court and the Court of Appeals that, under the facts of this case, this duty cannot be fulfilled unless the State of Michigan involves outlying metropolitan area school districts in its desegregation remedy. Furthermore, I perceive no basis either in law or in the practicalities of the situation justifying the State's interposition of school district boundaries as absolute barriers to the implementation of an effective desegregation remedy. Under established and frequently used Michigan procedures, school district lines are both flexible and permeable for a wide variety of purposes, and there is no reason why they must now stand in the way of meaningful desegregation relief.
127
The rights at issue in this case are too fundamental to be abridged on grounds as superficial as those relied on by the majority today. We deal here with the right of all of our children, whatever their race, to an equal start in life and to an equal opportunity to reach their full potential as citizens. Those children who have been denied that right in the past deserve better than to see fences thrown up to deny them that right in the future. Our Nation, I fear, will be ill served by the Court's refusal to remedy separate and unequal education, for unless our children begin to learn together, there is little hope that our people will ever learn to live together.
128
* The great irony of the Court's opinion and, in my view, its most serious analytical flaw may be gleaned from its concluding sentence, in which the Court remands for 'prompt formulation of a decree directed to eliminating the segregation found to exist in Detroit city schools, a remedy which has been delayed since 1970.' Ante, at 753. The majority, however, seems to have forgotten the District Court's explicit finding that a Detroit-only decree, the only remedy permitted under today's decision, 'would not accomplish desegregation.' Nowhere in the Court's opinion does the majority confront, let alone respond to, the District Court's conclusion that a remedy limited to the city of Detroit would not effectively desegregate the Detroit city schools. I, for one, find the District Court's conclusion well supported by the record and its analysis compelled by our prior cases. Before turning to these questions, however, it is best to begin by laying to rest some mischaracterizations in the Court's opinion with respect to the basis for the District Court's decision to impose a metropolitan remedy.
129
The Court maintains that while the initial focus of this lawsuit was the condition of segregation within the Detroit city schools, the District Court abruptly shifted focus in mid-course and altered its theory of the case. This new theory, in the majority's words, was 'equating racial imbalance with a constitutional violation calling for a remedy.' Ante, at 741, n. 19. As the following review of the District Court's handling of the case demonstrates, however, the majority's characterization is totally inaccurate. Nowhere did the District Court indicate that racial imbalance between school districts in the Detroit metropolitan area or within the Detroit School District constituted constitutional violation calling for interdistrict relief. The focus of this case was from the beginning, and has remained, the segregated system of education in the Detroit city schools and the steps necessary to cure that condition which offends the Fourteenth Amendment.
130
The District Court's consideration of this case began with its finding, which the majority accepts, that the State of Michigan, through its instrumentality, the Detroit Board of Education, engaged in widespread purposeful acts of racial segregation in the Detroit School District. Without belaboring the details, it is sufficient to note that the various techniques used in Detroit were typical of methods employed to segregate students by race in areas where no statutory dual system of education has existed. See, e.g., Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973). Exacerbating the effects of extensive residential segregation between Negroes and whites, the school board consciously drew attendance zones along lines which maximized the segregation of the races in schools as well. Optional attendance zones were created for neighborhoods undergoing racial transition so as to allow whites in these areas to escape integration. Negro students in areas with overcrowded schools were transported past or away from closer white schools with available space to more distant Negro schools. Grade structures and feeder-school patterns were created and maintained in a manner which had the foreseeable and actual effect of keeping Negro and white pupils in separate schools. Schools were also constructed in locations and in sizes which ensured that they would open with predominantly one-race student bodies. In sum, the evidence adduced below showed that Negro children had been intentionally confined to an expanding core of virtually all-Negro schools immediately surrounded by a receding band of all-white schools.
131
Contrary to the suggestions in the Court's opinion, the basis for affording a desegregation remedy in this case was not some perceived racial imbalance either between schools within a single school district or between independent school districts. What we confront here is 'a systematic program of segregation affecting a substantial portion of the students, schools . . . and facilities within the school system . . ..' Id., 413 U.S., at 201, 93 S.Ct., at 2694. The constitutional violation found here was not some de facto racial imbalance, but rather the purposeful, intentional, massive, de jure segregation of the Detroit city schools, which under our decision in Keyes, forms 'a predicate for a finding of the existence of a dual school system,' ibid., 93 S.Ct., at 2694, and justifies 'all-out desegregation.' Id., at 214, 93 S.Ct., at 2700.
132
Having found a de jure segregated public school system in operation in the city of Detroit, the District Court turned next to consider which officials and agencies should be assigned the affirmative obligation to cure the constitutional violation. The court concluded that responsibility for the segregation in the Detroit city schools rested not only with the Detroit Board of Education, but belonged to the State of Michigan itself and the state defendants in this case that is, the Governor of Michigan, the Attorney General, the State Board of Education, and the State Superintendent of Public Instruction. While the validity of this conclusion will merit more extensive analysis below, suffice it for now to say that it was based on three considerations. First, the evidence at trial showed that the State itself had taken actions contributing to the segregation within the Detroit schools. Second, since the Detroit Board of Education was an agency of the State of Michigan, its acts of racial discrimination were acts of the State for purposes of the Fourteenth Amendment. Finally, the District Court found that under Michigan law and practice, the system of education was in fact a state school system, characterized by relatively little local control and a large degree of centralized state regulation, with respect to both educational policy and the structure and operation of school districts.
133
Having concluded, then, that the school system in the city of Detroit was a de jure segregated system and that the State of Michigan had the affirmative duty to remedy that condition of segregation, the District Court then turned to the difficult task of devising an effective remedy. It bears repeating that the District Court's focus at this stage of the litigation remained what it had been at the beginning—the condition of segregation within the Detroit city schools. As the District Court stated: 'From the initial ruling (on segregation) to this day, the basis of the proceedings has been and remains the violation: de jure school segregation. . . . The task before this court, therefore, is now, and . . . has always been, how to desegregate the Detroit public schools.'
134
The District Court first considered three desegregation plans limited to the geographical boundaries of the city of Detroit. All were rejected as ineffective to desegregate the Detroit city schools. Specifically, the District Court determined that the racial composition of the Detroit student body is such that implementation of any Detroit-only plan 'would clearly make the entire Detroit public school system racially identifiable as Black' and would 'leave many of its schools 75 to 90 per cent Black.' The District Court also found that a Detroit-only plan 'would change a school system which is now Black and White to one that would be perceived as Black, thereby increasing the flight of Whites from the city and the system, thereby increasing the Black student population.' Based on these findings, the District Court reasoned that 'relief of segregation in the public schools of the City of Detroit cannot be accomplished within the corporate geographical limits of the city' because a Detroit-only decree 'would accentuate the racial identifiability of the district as a Black school system, and would not accomplish desegregation.' The District Court therefore concluded that it 'must look beyond the limits of the Detroit school district for a solution to the problem of segregation in the Detroit public schools . . ..'
135
In seeking to define the appropriate scope of that expanded desegregation area, however, the District Court continued to maintain as its sole focus the condition shown to violate the Constitution in this case—the segregation of the Detroit school system. As it stated, the primary question 'remains the determination of the area necessary and practicable effectively to eliminate 'root and branch' the effects of state-imposed and supported segregation and to desegregate the Detroit public schools.'
136
There is simply no foundation in the record, then, for the majority's accusation that the only basis for the District Court's order was some desire to achieve a racial balance in the Detroit metropolitan area.1 In fact, just the contrary is the case. In considering proposed desegregation areas, the District Court had occasion to criticize one of the State's proposals specifically because it had no basis other than its 'particular racial ratio' and did not focus on 'relevant factors, like eliminating racially identifiable schools (and) accomplishing maximum actual desegregation of the Detroit public schools.' Similarly, in rejecting the Detroit School Board's proposed desegregation area, even though it included more all-white districts and therefore achieved a higher white-Negro ratio, the District Court commented:
137
'There is nothing in the record which suggests that these districts need be included in the desegregation area in order to disestablish the racial identifiability of the Detroit public schools. From the evidence, the primary reason for the Detroit School Board's interest in the inclusion of these school districts is not racial desegregation but to increase the average socio-economic balance of all the schools in the abutting regions and clusters.'
138
The Court also misstates the basis for the District Court's order by suggesting that since the only segregation proved at trial was within the Detroit school system, any relief which extended beyond the jurisdiction of the Detroit Board of Education would be inappropriate because it would impose a remedy on outlying districts 'not shown to have committed any constitutional violation.' Ante, at 745.2 The essential foundation of interdistrict relief in this case was not to correct conditions within outlying districts which themselves engaged in purposeful segregation. Instead, interdistrict relief was seen as a necessary part of any meaningful effort by the State of Michigan to remedy the state-caused segregation within the city of Detroit.
139
Rather than consider the propriety of interdistrict relief on this basis, however, the Court has conjured up a largely fictional account of what the District Court was attempting to accomplish. With all due respect, the Court, in my view, does a great disservice to the District Judge who labored long and hard with this complex litigation by accusing him of changing horses in midstream and shifting the focus of this case from the pursuit of a remedy for the condition of segregation within the Detroit school system to some unprincipled attempt to impose his own philosophy of racial balance on the entire Detroit metropolitan area. See ante, at 738—739. The focus of this case has always been the segregated system of education in the city of Detroit. The District Court determined that interdistrict relief was necessary and appropriate only because it found that the condition of segregation within the Detroit school system could not be cured with a Detroit-only remedy. It is on this theory that the interdistrict relief must stand or fall. Unlike the Court, I perceive my task to be to review the District Court's order for what it is, rather than to criticize it for what it manifestly is not.
II
140
As the foregoing demonstrates, the District Court's decision to expand its desegregation decree beyond the geographical limits of the city of Detroit rested in large part on its conclusions (A) that the State of Michigan was ultimately responsible for curing the condition of segregation within the Detroit city schools, and (B) that a Detroit-only remedy would not accomplish this task. In my view, both of these conclusions are well supported by the facts of this case and by this Court's precedents.
A.
141
To begin with, the record amply supports the District Court's findings that the State of Michigan, through state officers and state agencies, had engaged in purposeful acts which created or aggravated segregation in the Detroit schools. The State Board of Education, for example, prior to 1962, exercised its authority to supervise local schoolsite selection in a manner which contributed to segregation. 484 F.2d 215, 238 (CA6 1973). Furthermore, the State's continuing authority, after 1962, to approve school building construction plans3 had intertwined the State with site-selection decisions of the Detroit Board of Education which had the purpose and effect of maintaining segregation.
142
The State had also stood in the way of past efforts to desegregate the Detroit city schools. In 1970, for example, the Detroit School Board had begun implementation of its own desegregation plan for its high schools, despite considerable public and official resistance. The State Legislature intervened by enacting Act 48 of the Public Acts of 1970, specifically prohibiting implementation of the desegregation plan and thereby continuing the growing segregation of the Detroit school system. Adequate desegregation of the Detroit system was also hampered by discriminatory restrictions placed by the State on the use of transportation within Detroit. While state aid for transportation was provided by statute for suburban districts, many of which were highly urbanized, aid for intracity transportation was excepted. One of the effects of this restriction was to encourage the construction of small walk-in neighborhood schools in Detroit, thereby lending aid to the intentional policy of creating a school system which reflected, to the greatest extent feasible, extensive residential segregation. Indeed, that one of the purposes of the transportation restriction was to impede desegregation was evidenced when the Michigan Legislature amended the State Transportation Aid Act to cover intracity transportation but expressly prohibited the allocation of funds for cross-busing of students within a school district to achieve racial balance.4 Cf. North Carolina State Board of Education v. Swann, 402 U.S. 43, 91 S.Ct. 1284, 28 L.Ed.2d 586 (1971).
143
Also significant was the State's involvement during the 1950's in the transportation of Negro high school students from the Carver School-District past a closer white high school in the Oak Park District to a more distant Negro high school in the Detroit system. Certainly the District Court's finding that the State Board of Education had knowledge of this action and had given its tacit or express approval was not clearly erroneous. Given the comprehensive statutory powers of the State Board of Education over contractual arrangements between school districts in the enrollment of students on a nonresident tuition basis, including certification of the number of pupils involved in the transfer and the amount of tuition charged, over the review of transportation routes and distances, and over the disbursement of transportation funds,5 the State Board inevitably knew and understood the significance of this discriminatory act.
144
Aside from the acts of purposeful segregation committed by the State Legislature and the State Board of Education, the District Court also concluded that the State was responsible for the many intentional acts of segregation committed by the Detroit Board of Education, an agency of the State. The majority is only willing to accept this finding arguendo. See ante, at 748. I have no doubt, however, as to its validity under the Fourteenth Amendment.
145
'The command of the Fourteenth Amendment,' it should be recalled, 'is that no 'State' shall deny to any person within its jurisdiction the equal protection of the laws.' Cooper v. Aaron, 358 U.S. 1, 16, 78 S.Ct. 1401, 1409, 3 L.Ed.2d 5 (1958). While a State can act only through 'the officers or agents by whom its powers are exerted,' Ex parte Virginia, 100 U.S. 339, 347, 25 L.Ed. 676 (1880), actions by an agent or officer of the State are encompassed by the Fourteenth Amendment for, 'as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State.' Ibid. See also Cooper v. Aaron, supra; Virginia v. Rives, 100 U.S. 313, 318, 25 L.Ed. 667 (1880); Shelley v. Kraemer, 334 U.S. 1, 14, 68 S.Ct. 836, 842, 92 L.Ed. 1161 (1948). Under Michigan law a 'school district is an agency of the City of State government.' School District of Lansing v. State Board of Education, 367 Mich. 591, 600, 116 N.W.2d 866, 870 (1962). It is 'a legal division of territory, created by the State for educational purposes, to which the State has granted such powers as are deemed necessary to permit the district to function as a State agency.' Detroit Board of Education v. Superintendent of Public Instruction, 319 Mich. 436, 450, 29 N.W.2d 902, 908 (1947). Racial discrimination by the school district, an agency of the State, is therefore racial discrimination by the State itself, forbidden by the Fourteenth Amendment. See, e.g., Pennsylvania v. Board of Trusts, 353 U.S. 230, 77 S.Ct. 806, 1 L.Ed.2d 792 (1957).
146
We recognized only last Term in Keyes that it was the State itself which was ultimately responsible for de jure acts of segregation committed by a local school board. A deliberate policy of segregation by the local board, we held, amounted to 'state-imposed segregation.' 413 U.S., at 200, 93 S.Ct., at 2693. Wherever a dual school system exists, whether compelled by state statute or created by a local board's systematic program of segregation, 'the State automatically assumes an affirmative duty 'to effectuate a transition to a racially nondiscriminatory school system' (and) to eliminate from the public schools within their school system 'all vestiges of state-imposed segregation." Ibid. (emphasis added).
147
Vesting responsibility with the State of Michigan for Detroit's segregated schools is particularly appropriate as Michigan, unlike some other States, operates a single statewide system of education rather than several separate and independent local school systems. The majority's emphasis on local governmental control and local autonomy of school districts in Michigan will come as a surprise to those with any familiarity with that State's system of education. School districts are not separate and distinct sovereign entities under Michigan law, but rather are "auxiliaries of the State," subject to its 'absolute power.' Attorney General of Michigan ex rel. Kies v. Lowrey, 199 U.S. 233, 240, 26 S.Ct. 27, 29, 50 L.Ed. 167 (1905). The courts of the State have repeatedly emphasized that education in Michigan is not a local governmental concern, but a state function.
148
'Unlike the delegation of other powers by the legislature to local governments, education is not inherently a part of the local self-government of a municipality . . .. Control of our public school system is a State matter delegated and lodged in the State legislature by the Constitution. The policy of the State has been to retain control of its school system, to be administered throughout the State under State laws by local State agencies organized with plenary powers to carry out the delegated functions given (them) by the legislature.' School District of the City of Lansing v. State Board of Education, supra, at 595, 116 N.W.2d, at 868.
149
The Supreme Court of Michigan has noted the deep roots of this policy:
150
'It has been settled by the Ordinance of 1787, the several Constitutions adopted in this state, by its uniform course of legislation, and by the decisions of this court, that education in Michigan is a matter of state concern, that it is no part of the local self-government of a particular township or municipality . . .. The legislature has always dictated the educational policy of the state.' In re School District No. 6, 284 Mich. 132, 145—146, 278 N.W. 792, 797 (1938).
151
The State's control over education is reflected in the fact that, contrary to the Court's implication, there is little or no relationship between school districts and local political units. To take the 85 outlying local school districts in the Detroit metropolitan area as examples, 17 districts lie in two counties, two in three counties. One district serves five municipalities; other suburban municipalities are fragmented into as many as six school districts. Nor is there any apparent state policy with regard to the size of school districts, as they now range from 2,000 to 285,000 students.
152
Centralized state control manifests itself in practice as well as in theory. The State controls the financing of education in several ways. The legislature contributes a substantial portion of most school districts' operating budgets with funds appropriated from the State's General Fund revenues raised through statewide taxation.6 The State's power over the purse can be and is in fact used to enforce the State's powers over local districts.7 In addition, although local districts obtain funds through local property taxation, the State has assumed the responsibility to ensure equalized property valuations throughout the State.8 The State also establishes standards for teacher certification and teacher tenure;9 determines part of the required curriculum;10 sets the minimum school term;11 approves bus routes, equipment, and drivers;12 approves textbooks;13 and establishes procedures for student discipline.14 The State Superintendent of Public Instruction and the State Board of Education have the power to remove local school board members from office for neglect of their duties.15
153
Most significantly for present purposes, the State has wide-ranging powers to consolidate and merge school districts, even without the consent of the districts themselves or of the local citizenry.16 See, e.g., Attorney General ex rel. Kies, v. Lowrey, 131 Mich. 639, 92 N.W. 289 (1902), aff'd, 199 U.S. 233, 26 S.Ct. 27, 50 L.Ed. 167 (1905). Indeed, recent years have witnessed an accelerated program of school district consolidations, mergers, and annexations, many of which were state imposed. Whereas the State had 7,362 local districts in 1912, the number had been reduced to 1,438 in 1964 and to 738 in 1968.17 By June 1972, only 608 school districts remained. Furthermore, the State has broad powers to transfer property from one district to another, again without the consent of the local school districts affected by the transfer.18 See, e.g., School District of the City of Lansing v. State Board of Education, supra; Imlay Township District v. State Board of Education, 359 Mich. 478, 102 N.W.2d 720 (1960).
154
Whatever may be the history of public education in other parts of our Nation, it simply files in the face of reality to say, as does the majority, that in Michigan, '(n)o single tradition in public education is more deeply rooted than local control over the operation of schools . . ..' Ante, as 741. As the State's Supreme Court has said: 'We have repeatedly held that education in this state is not a matter of local concern, but belongs to the state at large.' Collins v. City of Detroit, 195 Mich. 330, 335—336, 161 N.W. 905, 907 (1917). See also Sturgis v. County of Allegan, 343 Mich. 209, 215, 72 N.W.2d 56, 59 (1955); Van Fleet v. Oltman, 244 Mich. 241, 244, 221 N.W. 299, 300 (1928); Child Welfare Society of Flint v. Kennedy School District, 220 Mich 290, 296, 189 N.W. 1002, 1004 (1922). Indeed, a study prepared for the 1961 Michigan Constitutional Convention noted that the Michigan Constitution's articles on education had resulted in 'the establishment of a state system of education in contrast to a series of local school systems.' Elemen-Michigan Constitution, Michigan Constitutional Convention Studies 1 (1961).
155
In sum, several factors in this case coalesce to support the District Court's ruling that it was the State of Michigan itself, not simply the Detroit Board of Education, which bore the obligation of curing the condition of segregation within the Detroit city schools. The actions of the State itself directly contributed to Detroit's segregation. Under the Fourteenth Amendment, the State is ultimately responsible for the actions of its local agencies. And, finally, given the structure of Michigan's educational system, Detroit's segregation cannot be viewed as the problem of an independent and separate entity. Michigan operates a single statewide system of education, a substantial part of which was shown to be segregated in this case.
B
156
What action, then, could the District Court require the State to take in order to cure Detroit's condition of segregation? Our prior cases have not minced words as to what steps responsible officials and agencies must take in order to remedy segregation in the public schools. Not only must distinctions on the basis of race be terminated for the future, but school officials are also '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.' Green v. County School Board of New Kent County, 391 U.S. 430, 437—438, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716 (1968). See also Lee v. Macon County Board of Education, 267 F.Supp. 458 (MD Ala.), aff'd sub nom. Wallace v. United States, 389 U.S. 215, 88 S.Ct. 415, 19 L.Ed.2d 422 (1967). Negro students are not only entitled to neutral nondiscriminatory treatment in the future. They must receive 'what Brown II promised them: a school system in which all vestiges of enforced racial segregation have been eliminated.' Wright v. Council of the City of Emporia, 407 U.S. 451, 463, 92 S.Ct. 2196, 2203, 33 L.Ed.2d 51 (1972). See also Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 1275, 28 L.Ed.2d 554 (1971). These remedial standards are fully applicable not only to school districts where a dual system was compelled by statute, but also where, as here, a dual system was the product of purposeful and intentional state action. See Keyes, 413 U.S., at 200—201, 93 S.Ct., at 2693—2694.
157
After examining three plans limited to the city of Detroit, the District Court correctly concluded that none would eliminate root and branch the vestiges of unconstitutional segregation. The plans' effectiveness, of course, had to be evaluated in the context of the District Court's findings as to the extent of segregation in the Detroit city schools. As indicated earlier, the most essential finding was that Negro children in Detroit had been confined by intentional acts of segregation to a growing core of Negro schools surrounded by a receding ring of white schools.19 Thus, in 1960, of Detroit's 251 regular attendance schools, 100 were 90% or more white and 71 were 90% or more Negro. In 1970, of Detroit's 282 regular attendance schools, 69 were 90% or more white and 133 were 90% or more Negro. While in 1960, 68% of all schools were 90% or more one race, by 1970, 71.6% of the schools fell into that category. The growing core of all-Negro schools was further evidenced in total school district population figures. In 1960 the Detroit system had 46% Negro students and 54% white students, but by 1970, 64% of the students were Negro and only 36% were white. This increase in the proportion of Negro students was the highest of any major Northern city.
158
It was with these figures in the background that the District Court evaluated the adequacy of the three Detroit-only plans submitted by the parties. Plan A, proposed by the Detroit Board of Education, desegregated the high schools and about a fifth of the middle-level schools. It was deemed inadequate, however, because it did not desegregate elementary schools and left the middle-level schools not included in the plan more segregated than ever. Plan C, also proposed by the Detroit Board, was deemed inadequate because it too covered only some grade levels and would leave elementary schools segregated. Plan B, the plaintiffs' plan, though requiring the transportation of 82,000 pupils and the acquisition of 900 school buses, would make little headway in rooting out the vestiges of segregation. To begin with, because of practical limitations, the District Court found that the plan would leave many of the Detroit city schools 75 to 90% Negro. More significantly, the District Court recognized that in the context of a community which historically had a school system marked by rigid de jure segregation, the likely effect of a Detroit-only plan would be to 'change a school system which is now Black and White to one that would be perceived as Black . . ..' The result of this changed perception, the District Court found, would be to increase the flight of whites from the city to the outlying suburbs, compounding the effects of the present rate of increase in the proportion of Negro students in the Detroit system. Thus, even if a plan were adopted which, at its outset, provided in every school a 65% Negro-35% white racial mix in keeping with the Negro-white proportions of the total student population, such a system would, in short order, devolve into an all-Negro system. The net result would be a continuation of the all-Negro schools which were the hallmarks of Detroit's former dual system of one-race schools.
159
Under our decisions, it was clearly proper for the District Court to take into account the so-called 'white flight' from the city schools which would be forthcoming from any Detroit-only decree. The court's prediction of white flight was well supported by expert testimony based on past experience in other cities undergoing desegregation relief. We ourselves took the possibility of white flight into account in evaluating the effectiveness of a desegregation plan in Wright, supra, where we relied on the District Court's finding that if the city of Emporia were allowed to withdraw from the existing system, leaving a system with a higher proportion of Negroes, it 'may be anticipated that the proportion of whites in county schools may drop as those who can register in private academies' . . ..' 407 U.S., at 464, 92 S.Ct., at 2204. One cannot ignore the white-flight problem, for where legally imposed segregation has been established, the District Court has the responsibility to see to it not only that the dual system is terminated at once but also that future events do not serve to perpetuate or re-establish segregation. See Swann, 402 U.S. at 21, 91 S.Ct., at 1278. See also Green, 391 U.S., at 438 n. 4, 88 S.Ct., at 1694; Monroe v. Board of Comm'rs, 391 U.S. 450, 459, 88 S.Ct. 1700, 1705, 20 L.Ed.2d 733 (1968).
160
We held in Swann, supra, that where de jure segregation is shown, school authorities must make 'every effort to achieve the greatest possible degree of actual desegregation.' 402 U.S., at 26, 91 S.Ct., at 1281. This is the operative standard re-emphasized in Davis v. School Comm'rs of Mobile County, 402 U.S. 33, 37, 91 S.Ct. 1289, 1292, 28 L.Ed.2d 577 (1971). If these words have any meaning at all, surely it is that school authorities must, to the extent possible, take all practicable steps to ensure that Negro and white children in fact go to school together. This is, in the final analysis, what desegregation of the public schools is all about.
161
Because of the already high and rapidly increasing percentage of Negro students in the Detroit system, as well as the prospect of white flight, a Detroit-only plan simply has no hope of achieving actual desegregation. Under such a plan white and Negro students will not go to school together. Instead, Negro children will continue to attend all-Negro schools. The very evil that Brown I was aimed at will not be cured, but will be perpetuated for the future.
162
Racially identifiable schools are one of the primary vestiges of state-imposed segregation which an effective desegregation decree must attempt to eliminate. In Swann, supra, for example, we held that '(t)he district judge or school authorities . . . will thus necessarily be concerned with the elimination of one-race schools.' 402 U.S., at 26, 91 S.Ct., at 1281. There is 'a presumption,' we stated, 'against schools that are substantially disproportionate in their racial composition.' Ibid. And in evaluating the effectiveness of desegregation plans in prior cases, we ourselves have considered the extent to which they discontinued racially identifiable schools. See, e.g., Green v. County School Board of New Kent County, supra; Wright v. Council of the City of Emporia, supra. For a principal end of any desegregation remedy is to ensure that it is no longer 'possible to identify a 'white school' or a 'Negro school." Swann, supra, 402 U.S., 18, 91 S.Ct., at 1277. The evil to be remedied in the dismantling of a dual system is the '(r) acial identification of the system's schools.' Green, supra, 391 U.S., at 435, 88 S.Ct., at 1693. The goal is a system without white schools or Negro schools—a system with 'just schools.' Id., at 442, 88 S.Ct., at 1696. A school authority's remedial plan or a district court's remedial decree is to be judged by its effectiveness in achieving this end. See Swann, 402 U.S., at 25, 91 S.Ct., at 1280; Davis, supra, 402 U.S., at 37, 91 S.Ct., at 1292; Green, supra, 391 U.S., at 439, 88 S.Ct., at 1694.
163
We cautioned in Swann, of course, that the dismantling of a segregated school system does not mandate any particular racial balance. 402 U.S., at 24, 91 S.Ct., at 1280. We also concluded that a remedy under which there would remain a small number of racially identifiable schools was only presumptively inadequate and might be justified. Id., at 26, 91 S.Ct., at 1281. But this is a totally different case. The flaw of a Detroit-only decree is not that it does not reach some ideal degree of racial balance or mixing. It simply does not promise to achieve actual desegregation at all. It is one thing to have a system where a small number of students remain in racially identifiable schools. It is something else entirely to have a system where all students continue to attend such schools.
164
The continued racial identifiability of the Detroit schools under a Detroit-only remedy is not simply a reflection of their high percentage of Negro students. What is or is not a racially identifiable vestige of de jure segregation must necessarily depend on several factors. Cf. Keyes, 413 U.S., at 196, 93 S.Ct., at 2691. Foremost among these should be the relationship between the schools in question and the neighboring community. For these purposes the city of Detroit and its surrounding suburbs must be viewed as a single community. Detroit is closely connected to its suburbs in many ways, and the metropolitan area is viewed as a single cohesive unit by its residents. About 40% of the residents of the two suburban counties included in the desegregation plan work in Wayne County, in which Detroit is situated. Many residents of the city work in the suburbs. The three counties participate in a wide variety of cooperative governmental ventures on a metropolitan-wide basis, including a metropolitan transit system, park authority, water and sewer system, and council of governments. The Federal Government has classified the tri-county area as a Standard Metropolitan Statistical Area, indicating that it is an area of 'economic and social integration.' United States v. Connecticut National Bank, 418 U.S. 656, 670, 94 S.Ct. 2788, 2797, 41 L.Ed.2d 1016 (1974).
165
Under a Detroit-only decree, Detroit's schools will clearly remain racially identifiable in comparison with neighboring schools in the metropolitan community. Schools with 65% and more Negro students will stand in sharp and obvious contrast to schools in neighboring districts with less than 2% Negro enrollment. Negro students will continue to perceive their schools as segregated educational facilities and this perception will only be increased when whites react to a Detroit-only decree by fleeing to the suburbs to avoid integration. School district lines, however innocently drawn, will surely be perceived as fences to separate the races when, under a Detroit-only decree, white parents withdraw their children from the Detroit city schools and move to the suburbs in order to continue them in all-white schools. The message of this action will not escape the Negro children in the city of Detroit. See Wright, 407 U.S., at 466, 92 S.Ct., at 2205. It will be of scant significance to Negro children who have for years been confined by de jure acts of segregation to a growing core of all-Negro schools surrounded by a ring of all-white schools that the new dividing line between the races is the school district boundary.
166
Nor can it be said that the State is free from any responsibility for the disparity between the racial makeup of Detroit and its surrounding suburbs. The State's creation, through de jure acts of segregation, of a growing core of all-Negro schools inevitably acted as a magnet to attract Negroes to the areas served by such schools and to deter them from settling either in other areas of the city or in the suburbs. By the same token, the growing core of all-Negro schools inevitably helped drive whites to other areas of the city or to the suburbs. As we recognized in Swann:
167
'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. . . . (Action taken) to maintain the separation of the races with a minimum departure from the formal principles of 'neighborhood zoning' . . . does more than simply influence the short-run composition of the student body . . .. 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.
168
See also Keyes, 413 U.S., at 202, 93 S.Ct., at 2694. The rippling effects on residential patterns caused by purposeful acts of segregation do not automatically subside at the school district border. With rare exceptions, these effects naturally spread through all the residential neighborhoods within a metropolitan area. See id., at 202—203, 93 S.Ct., at 2694—2695.
169
The State must also bear part of the blame for the white flight to the suburbs which would be forthcoming from a Detroit-only decree and would render such a remedy ineffective. Having created a system where whites and Negroes were intentionally kept apart so that they could not become accustomed to learning together, the State is responsible for the fact that many whites will react to the dismantling of that segregated system by attempting to flee to the suburbs. Indeed, by limiting the District Court to a Detroit-only remedy and allowing that flight to the suburbs to succeed, the Court today allows the State to profit from its own wrong and to perpetuate for years to come the separation of the races it achieved in the past by purposeful state action.
170
The majority asserts, however, that involvement of outlying districts would do violence to the accepted principle that 'the nature of the violation determines the scope of the remedy.' Swann, supra, 402 U.S., at 16, 91 S.Ct., at 1276. See ante, at 744 745. Not only is the majority's attempt to find in this single phrase the answer to the complex and difficult questions presented in this case hopelessly simplistic, but more important, the Court reads these words in a manner which perverts their obvious meaning. The nature of a violation determines the scope of the remedy simply because the function of any remedy is to cure the violation to which it is addressed. In school segregation cases, as in other equitable causes, a remedy which effectively cures the violation is what is required. See Green, 391 U.S., at 439, 88 S.Ct., at 1694; Davis, 402 U.S., at 37, 91 S.Ct., at 1292. No more is necessary, but we can tolerate no less. To read this principle as barring a district court from imposing the only effective remedy for past segregation and remitting the court to a patently ineffective alternative is, in my view, to turn a simple commonsense rule into a cruel and meaningless paradox. Ironically, by ruling out an interdistrict remedy, the only relief which promises to cure segregation in the Detroit public schools, the majority flouts the very principle on which it purports to rely.
171
Nor should it be of any significance that the suburban school districts were not shown to have themselves taken any direct action to promote segregation of the races. Given the State's broad powers over local school districts, it was well within the State's powers to require those districts surrounding the Detroit school district to participate in a metropolitan remedy. The State's duty should be no different here than in cases where it is shown that certain of a State's voting districts are malapportioned in violation of the Fourteenth Amendment. See Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). Overrepresented electoral districts are required to participate in reapportionment although their only 'participation' in the violation was to do nothing about it. Similarly, electoral districts which themselves meet representation standards must frequently be redrawn as part of a remedy for other over-and under-inclusive districts. No finding of fault on the part of each electoral district and no finding of a discriminatory effect on each district is a prerequisite to its involvement in the constitutionally required remedy. By the same logic, no finding of fault on the part of the suburban school districts in this case and no finding of a discriminatory effect on each district should be a prerequisite to their involvement in the constitutionally required remedy.
172
It is the State, after all, which bears the responsibility under Brown of affording a nondiscriminatory system of education. The State, of course, is ordinarily free to choose any decentralized framework for education it wishes, so long as it fulfills that Fourteenth Amendment obligation. But the State should no more be allowed to hide behind its delegation and compartmentalization of school districts to avoid its constitutional obligations to its children than it could hide behind its political subdivisions to avoid its obligations to its voters. Reynolds v. Sims, at 575, 84 S.Ct., at 1388. See also Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960).
173
It is a hollow remedy indeed where 'after supposed 'desegregation' the schools remained segregated in fact.' Hobson v. Hansen, 269 F.Supp. 401, 495 (D.D.C. 1967). We must do better than "substitute . . . one segregated school system for another segregated school system." Wright, 407 U.S., at 456, 92 S.Ct., at 2200. To suggest, as does the majority, that a Detroitonly plan somehow remedies the effects of de jure segregation of the races is, in my view, to make a solemn mockery of Brown I's holding that separate educational facilities are inherently unequal and of Swann's unequivocal mandate that the answer to de jure segregation is the greatest possible degree of actual desegregation.
III
174
One final set of problems remains to be considered. We recognized in Brown II, and have re-emphasized ever since, that in fashioning relief in desegregation cases, '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.' Brown II, 349 U.S., at 300, 75 S.Ct., at 756. See also Swann, supra.
175
Though not resting its holding on this point, the majority suggests that various equitable considerations militate against interdistrict relief. The Court, for example, refers to financing and administrative problems, the logistical problems attending large-scale transportation of students, and the prospect of the District Court's becoming a 'de facto 'legislative authority" and "school superintendent' for the entire area.' Ante, at 743—744. The entangling web of problems woven by the Court, however, appears on further consideration to be constructed of the flimsiest of threads.
176
I deal first with the last of the problems posed by the Court the specter of the District Court qua 'school superintendent' and 'legislative authority'—for analysis of this problem helps put the other issues in proper perspective. Our cases, of course, make clear that the initial responsibility for devising an adequate desegregation plan belongs with school authorities, not with the District Court. The court's primary role is to review the adequacy of the school authorities' efforts and to substitute its own plan only if and to the extent they default. See Swann, 402 U.S., at 16, 91 S.Ct., at 1276; Green, 391 U.S., at 439, 88 S.Ct., at 1294. Contrary to the majority's suggestions, the District Judge in this case consistently adhered to these procedures and there is every indication that he would have continued to do so. After finding de jure segregation the court ordered the parties to submit proposed Detroit-only plans. The state defendants were also ordered to submit a proposed metropolitan plan extending beyond Detroit's boundaries. As the District Court stated, 'the State defendants . . . bear the initial burden of coming forward with a proposal that promises to work.' The state defendants defaulted in this obligation, however. Rather than submit a complete plan, the State Board of Education submitted six proposals, none of which was in fact a desegregation plan. It was only upon this default that the District Court began to take steps to develop its own plan. Even then the District Court maximized school authority participation by appointing a panel representing both plaintiffs and defendants to develop a plan. Pet.App. 99a—100a. Furthermore, the District Court still left the state defendants the initial responsibility for developing both interim and final financial and administrative arrangements to implement interdistrict relief. Id., at 104A—105a. The Court of Appeals further protected the interests of local school authorities by ensuring that the outlying suburban districts could fully participate in the proceedings to develop a metropolitan remedy.
177
These processes have not been allowed to run their course. No final desegregation plan has been proposed by the panel of experts, let alone approved by the District Court. We do not know in any detail how many students will be transported to effect a metropolitan remedy, and we do not know how long or how far they will have to travel. No recommendations have yet been submitted by the state defendants on financial and administrative arrangements. In sum, the practicality of a final metropolitan plan is simply not before us at the present time. Since the State and the panel of experts have not yet had an opportunity a come up with a workable remedy, there is no foundation for the majority's suggestion of the impracticality of interdistrict relief. Furthermore, there is no basis whatever for assuming that the District Court will inevitably be forced to assume the role of legislature or school superintendent.20 Were we to hold that it was its constitutional duty to do so, there is every indication that the State of Michigan would fulfill its obligation and develop a plan which is workable, administrable, financially sound, and, most important, in the best interest of quality education for all of the children in the Detroit metropolitan area.
178
Since the Court chooses, however, to speculate on the feasibility of a metropolitan plan, I feel constrained to comment on the problem areas it has targeted. To begin with, the majority's question concerning the practicality of consolidation of school districts need not give us pause. The State clearly has the power, under existing law, to effect a consolidation if it is ultimately determined that this offers the best prospect for a workable and stable desegregation plan. See supra, at 796—797. And given the 1,000 or so consolidations of school districts which have taken place in the past, it is hard to believe that the State has not already devised means of solving most, if not all, of the practical problems which the Court suggests consolidation would entail.
179
Furthermore, the majority ignores long-established Michigan procedures under which school districts may enter into contractual agreements to educate their pupils in other districts using state or local funds to finance nonresident education.21 Such agreements could form an easily administrable framework for interdistrict relief short of outright consolidation of the school districts. The District Court found that interdistrict procedures like these were frequently used to provide special educational services for handicapped children, and extensive statutory provision is also made for their use in vocational education.22 Surely if school districts are willing to engage in interdistrict programs to help those unfortunate children crippled by physical or mental handicaps, school districts can be required to participate in an inter-district program to help those children in the city of Detroit whose educations and very futures have been crippled by purposeful state segregation.
180
Although the majority gives this last matter only fleeting reference, it is plain that one of the basic emotional and legal issues underlying these cases concerns the propriety of transportation of students to achieve desegregation. While others may have retreated from its standards, see, e.g., Keyes, 413 U.S., at 217, 93 S.Ct., at 2701 (Powell, J., concurring in part and dissenting in part), I continue to adhere to the guidelines set forth in Swann on this issue. See 402 U.S., at 29—31, 91 S.Ct., at 1282—1283. And though no final desegregation plan is presently before us, to the extent the outline of such a plan is now visible, it is clear that the transportation it would entail will be fully consistent with these guidelines.
181
First of all, the metropolitan plan would not involve the busing of substantially more students than already ridebuses. The District Court found that, statewide, 35%—40% of all students already arrive at school on a bus. In those school districts in the tri-county Detroit metropolitan area eligible for state reimbursement of transportation costs, 42%—52% of all students rode buses to school. In the tri-county areas as a whole, approximately 300,000 pupils arrived at school on some type of bus, with about 60,000 of these apparently using regular public transit. In comparison, the desegregation plan, according to its present rough outline, would involve the transportation of 310,000 students, about 40% of the population within the desegregation area.
182
With respect to distance and amount of time traveled, 17 of the outlying school districts involved in the plan are contiguous to the Detroit district. The rest are all within 8 miles of the Detroit city limits. The trial court, in defining the desegregation area, placed a ceiling of 40 minutes one way on the amount of travel time, and many students will obviously travel for far shorter periods. As to distance, the average statewide bus trip is 8 1/2 miles one way, and in some parts of the tri-county area, students already travel for one and a quarter hours or more each way. In sum, with regard to both the number of students transported and the time and distances involved, the outlined desegregation plan 'compares favorably with the transportation plan previously operated . . ..' Swann, 402 U.S., at 30, 91 S.Ct., at 1283.
183
As far as economics are concerned, a metropolitan remedy would actually be more sensible than a Detroit-only remedy. Because of prior transportation aid restrictions, see at 791, Detroit largely relied on public transport, at student expense, for those students who lived too far away to walk to school. Since no inventory of school buses existed, a Detroit-only plan was estimated to require the purchase of 900 buses to effectuate the necessary transportation. The tri-county area, in contrast, already has an inventory of 1,800 buses, many of which are now under-utilized. Since increased utilization of the existing inventory can take up much of the increase in transportation involved in the interdistrict remedy, the District Court found that only 350 additional buses would probably be needed, almost two-thirds fewer than a Detroit-only remedy. Other features of an interdistrict remedy bespeak its practicality, such as the possibility of pairing up Negro schools near Detroit's boundary with nearby white schools on the other side of the present school district line.
184
Some disruption, of course, is the inevitable product of any desegregation decree, whether it operates within one district or on an interdistrict basis. As we said in Swann, however:
185
'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. The remedy for such segregation may be administratively awkward, inconvenient, and even bizarre in some situations and may impose burdens on some; but all awkwardness and inconvenience cannot be avoided . . ..' 402 U.S., at 28, 91 S.Ct., at 1282.
186
Desegregation is not and was never expected to be an easy task. Racial attitudes ingrained in our Nation's childhood and adolescence are not quickly thrown aside in its middle years. But just as the inconvenience of some cannot be allowed to stand in the way of the rights of others, so public opposition, no matter how strident, cannot be permitted to divert this Court from the enforcement of the constitutional principles at issue in this case. Today's holding, I fear, is more a reflection of a perceived public mood that we have gone far enough in enforcing the Constitution's guarantee of equal justice than it is the product of neutral principles of law. In the short run, it may seem to be the easier course to allow our great metropolitan areas to be divided up each into two cities—one white, the other black—but it is a course, I predict, our people will ultimately regret. I dissent.
1
484 F.2d 215 (CA6), cert. granted, 414 U.S. 1038, 94 S.Ct. 538, 38 L.Ed.2d 329 (1973).
2
The standing of the NAACP as a proper party plaintiff was not contested in the trial court and is not an issue in this case.
3
Optional zones, sometimes referred to as dual zones or dual overlapping zones, provide pupils living within certain areas a choice of attendance at one of two high schools.
4
The Court of Appeals found record evidence that in at least one instance during the period 1957—1958, Detroit served a suburban school district by contracting with it to educate its Negro high school students by transporting them away from nearby suburban white high schools, and past Detroit high schools which were predominantly white, to all-Negro or predominantly Negro Detroit schools. 484 F.2d, at 231.
5
School districts in the State of Michigan are instrumentalities of the State and subordinate to its State Board of Education and legislature. The Constitution of the State of Michigan, Art. 8, § 2, provides in relevant part:
'The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law.'
Similarly, the Michigan Supreme Court has stated: 'The school district is a State agency. Moreover, it is of legislative creation. . . .' Attorney General ex rel. Kies v. Lowrey, 131 Mich. 639, 644, 92 N.W. 289, 290 (1902): "Education in Michigan belongs to the State. It is no part of the local self-government inherent in the township or municipality, except so far as the Legislature may choose to make it such. The Constitution has turned the whole subject over to the Legislature. . . ." Attorney General ex rel. Zacharias v. Detroit Board of Education, 154 Mich. 584, 590, 118 N.W. 606, 609 (1908).
6
'Sec. 12. The implementation of any attendance provisions for the 1970—71 school year determined by any first class school district board shall be delayed pending the date of commencement of functions by the first class school district boards established under the provisions of this amendatory act but such provision shall not impair the right of any such board to determine and implement prior to such date such changes in attendance provisions as are mandated by practical necessity. . . .' Act No. 48, § 12, Mich.Pub. Acts of 1970; Mich.Comp.Laws § 388.182 (1970).
7
The District Court briefly alluded to the possibility that the State, along with private persons, had caused, in part, the housing patterns of the Detroit metropolitan area which, in turn, produced the predominantly white and predominantly Negro neighborhoods that characterize Detroit:
'It is no answer to say that restricted practices grew gradually (as the black population in the area increased between 1920 and 1970), or that since 1948 racial restrictions on the ownership of real property have been removed. The policies pursued by both government and private persons and agencies have a continuing and present effect upon the complexion of the community as we know, the choice of a residence is a relatively infrequent affair. For many years FHA and VA openly advised and advocated the maintenance of 'harmonious' neighborhoods, i.e., racially and economically harmonious. The conditions created continue.' 338 F.Supp. 582, 587 (ED Mich.1971).
Thus, the District Court concluded:
'The affirmative obligation of the defendant Board has been and is to adopt and implement pupil assignment practices and policies that compensate for and avoid incorporation into the school system the effects of residential racial segregation.' Id., at 593.
The Court of Appeals, however, expressly noted that:
'In affirming the District Judge's findings of constitutional violations by the Detroit Board of Education and by the State defendants resulting in segregated schools in Detroit, we have not relied at all upon testimony pertaining to segregated housing except as school construction programs helped cause or maintain such segregation.' 484 F.2d., at 242.
Accordingly, in its present posture, the case does not present any question concerning possible state housing violations.
8
On March 22, 1971, a group of Detroit residents, who were parents of children enrolled in the Detroit public schools, were permitted to intervene as parties defendant. On June 24, 1971, the District Judge alluded to the 'possibility' of a metropolitan school system stating: '(A)s I have said to several witnesses in this case: 'How do you desegrate a black city, or a black school system." Petitioners' Appendix 243a (hereinafter Pat.App.). Subsequently, on July 16, 1971, various parents filed a motion to require joinder of all of the 85 outlying independent school districts within the tri-county area.
9
The respondents, as plaintiffs below, opposed the motion to join the additional school districts, arguing that the presence of the state defendants was sufficient and all that was required, even if, in shaping a remedy, the affairs of these other districts was to be affected. 338 F.Supp. at 595.
10
At the time of the 1970 census, the population of Michigan was 8,875,083, almost half of which, 4,199,931, resided in the tri-county area of Wayne, Oakland, and Macomb. Oakland and Macomb Counties abut Wayne County to the north, and Oakland County abuts Macomb County to the west. These counties cover 1,952 square miles, Michigan Statistical Abstract (9th ed. 1972), and the area is approximately the size of the State of Delaware (2,057 square miles), more than half again the size of the State of Rhode Island (1,214 square miles) and almost 30 times the size of the District of Columbia (67 square miles). Statistical Abstract of the United States (93d ed. 1972). The populations of Wayne, Oakland, and Macomb Counties were 2,666,751; 907,871; and 625,309, respectively, in 1970. Detroit, the State's largest city, is located in Wayne County.
In the 1970—1971 school year, there were 2,157,449 children enrolled in school districts in Michigan. There are 86 independent, legally distinct school districts within the tri-county area, having a total enrollment of approximately 1,000,000 children. In 1970, the Detroit Board of Education operated 319 schools with approximately 276,000 students.
11
In its formal opinion, subsequently announced, the District Court candidly recognized:
'It should be noted that the court has taken no proofs with respect to the establishment of the boundaries of the 86 public school districts in the counties of Wayne, Oakland and Macomb, nor on the issue of whether, with the exclusion of the city of Detroit school district, such school districts have committed acts of de jure segregation.' 345 F.Supp. 914, 920 (ED Mich.1972).
12
According to the District Court, intervention was permitted under Fed.Rule Civ.Proc. 24(a), 'Intervention of Right,' and also under Rule 24(b), 'Permissive Intervention.'
13
This rather abbreviated briefing schedule was maintained despite the fact that the District Court had deferred consideration of a motion made eight months earlier, to bring the suburban districts into the case. See text accompanying n. 8 supra.
14
As of 1970, the 53 school districts outside the city of Detroit that were included in the court's 'desegration area' had a combined student population of approximately 503,000 students compared to Detroit's approximately 276,000 students. Nevertheless, the District Court directed that the intervening districts should be represented by only one member on the desegregation panel while the Detroit Board of Education was granted three panel members. 345 F.Supp., at 917.
15
The District Court had certified most of the foregoing rulings for interlocutory review pursuant to 28 U.S.C. § 1292(b) (1 App. 265—266) and the case was initially decided on the merits by a panel of three judges. However, the panel's opinion and judgment were vacated when it was determined to rehear the case en banc, 484 F.2d, at 218.
16
With respect to the State's violations, the Court of Appeals held: (1) that, since the city Board is an instrumentality of the State and subordinate to the State Board, the segregative actions of the Detroit Board 'are the actions of an agency of the State,' id., at 238; (2) that the state legislation rescinding Detroit's voluntary desegregation plan contributed to increasing segregation in the Detroit schools, ibid.; (3) that under state law prior to 1962 the State Board had authority over school construction plans and therefore had to be held responsible 'for the segregative results,' ibid.; (4) that the 'State statutory scheme of support of transportation for school children directly discriminated against Detroit;' id., at 240, by not providing transportation funds to Detroit on the same basis as funds were provided to surburban districts, id., at 238; and (5) that the transportation of Negro students from one suburban district to a Negro school in Detroit must have had the 'approval, tacit or express, of the State Board of Education,' ibid.
17
The court sought to distinguish Bradley v. School Board of the City of Richmond, 462 F.2d 1058 (CA4 1972), aff'd by an equally divided Court, 412 U.S. 92, 93 S.Ct. 1952, 36 L.Ed.2d 771 (1973), on the grounds that the District Court in that case had ordered an actual consolidation of three school districts and that Virginia's Constitution and statutes, unlike Michigan's gave the local boards exclusive power to operate the public schools. 484 F.2d, at 251.
18
Although the list of issues presented for review in petitioners' briefs and petitions for writs of certiorari do not include arguments on the findings of segregative violations on the part of the Detroit defendants, two of the petitioners argue in brief that these findings constitute error. This Court's Rules 23(1)(c) and 40(1)(d)(2), at a minimum limit our review to the Detroit violation findings to 'plain error,' and, under our decision last Term in Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 1973), the findings appear to be correct.
19
Disparity in the racial composition of pupils within a single district may well constitute a 'signal' to a district court at the outset, leading to inquiry into the causes accounting for a pronounced racial identifiability of schools within one school system. In Swann, for example, we were dealing with a large but single independent school system, . . . and a unanimous Court noted: 'Where the school authority's proposed plan for conversion from a dual to a unitary system contemplates the continued existence of some schools that are all or predominantly of one race (the school authority has) the burden of showing that such school assignments are genuinely nondiscriminatory.' 402 U.S., at 26, 91 S.Ct., at 1281. See also Keyes, supra, at 208, 93 S.Ct., at 2697. However, the use of significant racial imbalance in schools within an autonomous school district as a signal which operates simply to shift the burden of proof, is a very different matter from equating racial imbalance with a constitutional violation calling for a remedy. Keyes, supra, also involved a remedial order within a single autonomous school district.
20
Under the Michigan School Code of 1955, the local school district is an autonomous political body corporate, operating through a Board of Education popularly elected. Mich.Comp.Laws §§ 340.27, 340.55, 340.107, 340.148, 340.149, 340.188. As such, the day-to-day affairs of the school district are determined at the local level in accordance with the plenary power to acquire real and personal property, §§ 340.26, 340.77, 340.113, 340.165, 340.192, 340.352; to hire and contract with personnel, §§ 340.569, 340.574; to levy taxes for operations, § 340.563; to borrow against receipts, § 340.567; to determine the length of school terms, § 340.575; to control the admission of nonresident students, § 340.582; to determine courses of study, § 340.583; to provide a kindergarten program, § 340.584; to establish and operate vocational schools, § 340.585; to offer adult education programs, § 340.586; to establish attendance areas, § 340.589; to arrange for transportation of nonresident students, § 340.591; to acquire transportation equipment, § 340.594; to receive gifts and bequests for educational purposes, § 340.605; to employ an attorney, § 340.609; to suspend or expel students, § 340.613; to make rules and regulations for the operation of schools, § 340.614; to cause to be levied authorized millage, § 340.643a; to acquire property by eminent domain, § 340.711 et seq.; and to approve and select textbooks, § 340.882.
21
Since the Court has held that a resident of a school district has a fundamental right protected by the Federal Constitution to vote in a district election, it would seem incongruous to disparage the importance of the school district in a different context. Kramer v. Union Free School District No. 15, 395 U.S. 621, 626, 89 S.Ct. 1886, 1889, 23 L.Ed.2d 583 (1969). White the district there involved was located in New York, none of the facts in our possession suggest that the relation of school districts to the State is significantly different in New York from that in Michigan.
22
The suggestion in the dissent of Mr. Justice MARSHALL that schools which have a majority of Negro students are not 'desegregated,' whatever the racial makeup of the school district's population and however neutrally the district lines have been drawn and administered, finds no support in our prior cases. In Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), for example, this Court approved a desegregation plan which would have resulted in each of the schools within the district having a racial composition of 57% Negro and 43% White. In Wright v. Council of the City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972), the optimal desegregation plan would have resulted in the schools' being 66% Negro and 34% white, substantially the same percentages as could be obtained under one of the plans involved in this case. And in United States v. Scotland Neck City Board of Education, 407 U.S. 484, 491 n. 5, 92 S.Ct. 2214, 2218, 33 L.Ed.2d 75 (1972), a desegregation plan was implicitly approved for a school district which had a racial composition of 77% Negro and 22% white. In none of these cases was it even intimated that 'actual desegregation' could not be accomplished as long as the number of Negro students was greater than the number of white students.
The dissents also seem to attach importance to the metropolitan character of Detroit and neighboring school districts. But the constitutional principles applicable in school desegregation cases cannot vary in accordance with the size or population dispersal of the particular city, county, or school district as compared with neighboring areas.
23
People ex rel. Workman v. Board of Education of Detroit, 18 Mich. 400 (1869); Act 34, § 28, Mich.Pub.Acts of 1867. The Michigan Constitution and laws provide that 'every school district shall provide for the education of its pupils without discrimination as to religion, creed, race, color or national origin,' Mich.Const.1963, Art. 8, § 2; that 'no separate school or department shall be kept for any person or persons on account of race or color,' Mich.Comp.Laws § 340.355; and that '(a)ll persons, residents of a school district . . . shall have an equal right to attend school therein,' id., § 340.356. See also Act 319, Part II, c. 2, § 9, Mich.Pub.Acts of 1927.
24
Apparently, when the District Court sua sponte, abruptly altered the theory of the case to include the possibility of multidistrict relief, neither the plaintiffs nor the trial judge considered amending the complaint to embrace the new theory.
1
As this Court stated in Brown v. Board of Education, 349 U.S. 294, 300, 75 S.Ct. 753, 756, 99 L.Ed. 1083: '(E)quity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. These (school desegregation) cases call for the exercise of these traditional attributes of equity power.'
2
My Brother MARSHALL seems to ignore this fundamental fact when he states, post at 799, that 'the most essential finding (made by the District Court) was that Negro children in Detroit had been confined by intentional acts of segregation to a growing core of Negro schools surrounded by a receding ring of white schools.' This conclusion is simply not substantiated by the record presented in this case. The record here does support the claim made by the respondents that white and Negro students within Detroit who otherwise would have attended school together were separated by acts of the State or its subdivision. However, segregative acts within the city alone cannot be presumed to have produced—and no factual showing was made that they did produce—an increase in the number of Negro students in the city as a whole. It is this essential fact of a predominantly Negro school population in Detroit—caused by unknown and perhaps unknowable factors such as in-migration, birth rates, economic changes, or cumulative acts of private racial fears—that accounts for the 'growing core of Negro schools,' a 'core' that has grown to include virtually the entire city. The Constitution simply does not allow federal courts to attempt to change that situation unless and until it is shown that the State, or its political subdivisions, have contributed to cause the situation to exist. No record has been made in this case showing that the racial composition of the Detroit school population or that residential patterns within Detroit and in the surrounding areas were in any significant measure caused by governmental activity, and it follows that the situation over which my dissenting Brothers express concern cannot serve as the predicate for the remedy adopted by the District Court and approved by the Court of Appeals.
1
Mich.Const., Art. 8, §§ 2, 3.
2
See 484 F.2d 215, 247—248; Mich.Comp.Laws §§ 340.402, 340.431, 340.447, 388.681 (1970).
3
Mich.Comp.Laws § 388.851 (1948), as amended by Act 231, Mich.Pub.Acts of 1949, and Act 175, Mich.Pub.Acts 1962.
4
See Mich.Comp.Laws §§ 132.1 and 132.2 (1970); 3 App. 157.
5
See 484 F.2d at 248—249.
6
See Detroit Free Press, Nov. 8, 1972, p. 1A, col. 3. Michigan has recently passed legislation which could eliminate some, but not all, of the inequities in school financing. See Act 101, Mich.Pub.Acts of 1973.
7
See 484 F.2d, at 246—247; Mich.Const. Art. 8, §§ 2, 3.
8
See n. 2, supra.
9
A tremendous change has occurred in the distribution of this country's black population since World War I. See Hauser, Demographic Factors in the Integration of the Negro, Daedalus 847 877 (fall 1965). In 1910, 73% of all blacks lived on farms and in rural areas; by 1960, 73% lived in urban areas, mainly in the largest metropolitan areas. Moreover, due to the fact that the black population is younger than the white population, the concentration of blacks in the cities is even more pronounced for the schoolage population. The pattern of change which has existed since World War I is continuing, and hence the proportion of blacks in the urban North and West will continue to increase. Dept. of Health, Education, and Welfare, J. Coleman et al., Equality of Educational Opportunity 39—40 (1966).
10
There are some definite and systematic directions of difference between the schools attended by minorities and those attended by the majority. It appears to be in the most academically related areas that the schools of minority pupils show the most consistent deficiencies.' Dept. of Health, Education, and Welfare, Coleman et al., supra n. 9, at 120.
11
That some school districts are markedly poorer than others is beyond question. The California Supreme Court has noted that per-pupil expenditures in two different districts—both located in the same county—were $2,223 and $616. Serrano v. Priest, 5 Cal.3d 584, 600 n. 15 (1971). In New York the Fleischmann Commission reported that the two Long Island districts of Great Neck and Levittown spent $2,078 and $1,189 respectively per pupil. 1 New York State Commission on the Quality, Cost, and Financing of Elementary and Secondary Education, Fleischmann Report 58 (1973). 'A further glaring inequity resulting from the current systems of school finance is that variations in per pupil expenditures among school districts tend to be inversely related to educational need. City students, with greater than average education deficiencies, consistently have less money spent on their education and have higher pupil/teacher ratios than do their high-income counterparts in the favored schools of suburbia.' Glickstein & Want, Inequality in School Financing: The Role of the Law, 25 Stan.L.Rev. 335, 338 (1973).
12
Cities face an especially difficult problem in paying the cost of education, since they have the 'municipal overburden' which results from greater costs for health, public safety, sanitation, public works, transportation, public welfare, public housing, and recreation. Because of municipal overburden, cities on the average devote only about 30% of their budgets to their schools. This compares with the over 50% which is spent on schools by the suburbs. J. Berke & J. Callahan, Inequities in School Finance (1971), reprinted in Senate Select Committee on Equal Educational Opportunity, 92d Cong., 2d Sess., Report on Issues in School Finance 129, 142 (Comm.Print 1972); see Glickstein & Want, supra, n. 11, at 387.
13
Mr. Justice STEWART indicates that equitable factors weigh in favor of local school control and the avoidance of administrative difficulty given the lack of an 'interdistrict' violation. Ante, at 755. It would seem to me that the equities are stronger in favor of the children of Detroit who have been deprived of their constitutional right to equal treatment by the State of Michigan.
1
The percentage of Negro pupils in the Detroit student population rose to 64.9% in 1971, to 67.3% in 1972, and to 69.8% in 1973, amid a metropolitan school population whose racial composition in 1970 was 81% white and 19% Negro. 5 App. 16; Racial-Ethnic Distribution of Students and Employees in the Detroit Public Schools, October 1972, and October 1973; 484 F.2d 215, 250.
2
The District Court's ruling on the Detroit-only desegregation plans is set out in full by the Court of Appeals, id., at 242—245, and is not otherwise officially reported.
3
The Court has previously disapproved the implementation of proposed desegregation plans which operate to permit resegregation. Monroe v. Board of Comm'rs, 391 U.S. 450, 459—460, 88 S.Ct. 1700, 1705, 20 L.Ed.2d 733 (1968), ('free transfer' plan).
4
The Court of Appeals also noted several specific instances of school district mergers ordered by the State Board of Education for financial reasons. 484 F.2d, at 247. Limitations on the authority of local school districts were also outlined by the Court of Appeals:
'Local school districts, unless they have the approval of the State Board of Education or the Superintendent of Public Instruction, cannot consolidate with another school district, annex territory, divide or attach parts of other districts, borrow monies in anticipation of State aid, or construct, reconstruct or remodel school buildings or additions to them.' Id., at 249. (Footnotes and supporting statutory citations omitted.)
And the Court of Appeals properly considered the State's statutory attempt to undo the adoption of a voluntary high school desegregation plan by the Detroit Board of Education as evidencing state control over local school district affairs. Ibid. Finally, it is also relevant to note that the District Court found that the school district boundaries in that segment of the metropolitan area preliminarily designated as the desegregation area 'in general bear no relationship to other municipal, county, or special district governments, needs or services,' that some educational services are already provided to students on an interdistrict basis requiring their travel from one district to another, and that local communities in the metropolitan area share noneducational interests in common, which do not adhere to school district lines, and have applied metropolitan solutions to other governmental needs. 345 F.Supp. 914, 934—935 (E.D.Mich.1972).
5
These included the creation and alteration of attendance zones and feeder patterns from the elementary to the secondary schools in a manner naturally and predictably perpetuating racial segregation of students, the transportation of Negro students beyond predominantly white schools with available space to predominantly Negro schools, the use of optional attendance areas in neighborhoods in which Negro families had recently begun to settle to permit white students to transfer to predominantly white schools nearer the city limits, and the construction of schools in the heart of residentially segregated areas, thereby maximizing school segregation.
1
Contrary to the Court's characterization, the use of racial ratios in this case in no way differed from that in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). Here, as there, mathematical ratios were used simply as 'a starting point in the process of shaping a remedy, rather than an inflexible requirement.' Id., at 25, 91 S.Ct., at 1280. It may be expected that a final desegregation plan in this case would deviate from a pure mathematical approach. Indeed, the District Court's most recent order appointing a panel of experts to draft an interdistrict plan requires only that the plan be designed 'to achieve the greatest degree of actual desegregation . . . (w)ithin the limitations of reasonable travel time and distance factors.' 345 F.Supp. 914, 918 (ED Mich.1972). Cf. 402 U.S., at 23, 91 S.Ct., at 1279.
2
It does not appear that even the majority places any real weight on this consideration since it recognizes that interdistrict relief would be proper where a constitutional violation within one district produces a significant segregative effect in another district, see ante, at 744—745, thus allowing interdistrict relief to touch districts which have not themselves violated the Constitution.
3
See Mich.Comp.Laws § 388.851 (1970).
4
See § 388.1179.
5
See §§ 388.629 and 340.600.
6
See § 388.611. The State contributed an average of 34% of the operating budgets of the 54 school districts included in the original proposed desegregation area. In 11 of these districts, state contributions exceeded 50% of the operating budgets.
7
See, e.g., id., § 340.575. See also 1949—1950 Report of the Attorney General 104 (Roth); Vol. 1, 1955 Report of the Attorney General 561 (Kavanagh); 1961—1962 Report of the Attorney General 533 (Kelley).
8
See Mich.Comp.Laws §§ 211.34 and 340.681.
9
§ 340.569.
10
§§ 257.811(c), 340.361, 340.781, 340.782, 388.371.
11
§ 340.575.
12
§ 388.1171.
13
§ 340.887(1).
14
Op.Atty.Gen. No. 4705 (July 7, 1970), 1969—1970 Report of the Attorney General 156 (Kelley).
15
See Mich.Comp.Laws § 340.253.
16
See generally, §§ 340.401—340.415 (consolidations), 340.431—340.449 (annexations).
17
See 1 Michigan Senate Journal, 1968, p. 423.
18
See generally Mich.Comp.Laws §§ 340.461—340.468.
19
Despite Mr. Justice STEWART's claim to the contrary, ante, at 756, n. 2, of his concurring opinion, the record fully supports my statement that Negro students were intentionally confined to a core of Negro schools within the city of Detroit. See, e.g., supra, at 784—785, 790—792. Indeed, Mr. Justice STEWART acknowledges that intentional acts of segregation by the State have separated white and Negro students within the city, and that the resulting core of all-Negro schools has grown to encompass most of the city. In suggesting that my approval of an interdistrict remedy rests on a further conclusion that the State or its political subdivisions have been responsible for the increasing percentage of Negro students in Detroit, my Brother STEWART misconceives the thrust of this dissent. In light of the high concentration of Negro students in Detroit, the District Judge's finding that a Detroit-only remedy cannot effectively cure the constitutional violation within the city should be enough to support the choice of an interdistrict remedy. Whether state action is responsible for the growth of the core of all-Negro schools in Detroit is, in my view, quite irrelevant.
The difficulty with Mr. Justice STEWART's position is that he, like the Court, confuses the inquiry required to determine whether there has been a substantive constitutional violation with that necessary to formulate an appropriate remedy once a constitutional violation has been shown. While a finding of state action is of course a prerequisite to finding a violation, we have never held that after unconstitutional state action has been shown, the District Court at the remedial stage must engage in a second inquiry to determine whether additional state action exists to justify a particular remedy. Rather, once a constitutional violation has been shown, the District Court is duty-bound to formulate an effective remedy and, in so doing, the court is entitled—indeed, it is required—to consider all the factual circumstances relevant to the framing of an effective decree. Thus, in Swann v. Charlotte-Mecklenburg Board of Education we held that the District Court must take into account the existence of extensive residential segregation in determining whether a racially neutral 'neighborhood school' attendance plan was an adequate desegregation remedy, regardless of whether this residential segregation was caused by state action. So here, the District Court was required to consider the facts that the Detroit school system was already predominantly Negro and would likely become all-Negro upon issuance of a Detroit-only decree in framing an effective desegregation remedy, regardless of state responsibility for this situation.
20
In fact, the District Court remarked 'that this court's task is to enforce constitutional rights not to act as a schoolmaster; the court's task is to protect the constitutional rights here found violated with as little intrusion into the education process as possible. The court's objective is to establish the minimum constitutional framework within which the system of public schools may operate now and hereafter in a racially unified, non-discriminatory fashion. Within that framework the body politic, educators, parents, and most particularly the children must be given the maximum opportunity to experiment and secure a high quality, and equal, educational opportunity.' Pet.App. 82a.
21
See, e.g., Mich.Comp.Laws §§ 340.69, 340.121(d), 340.359, 340.582, 340.582a, 340.590.
22
See id., §§ 340.330—340.330u.
| 12
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42 L.Ed.2d 7
95 S.Ct. 13
419 U.S. 7
UNITED STATESv.AMERICAN FRIENDS SERVICE COMMITTEE et al.
No. 73—1791.
Oct. 29, 1974.
PER CURIAM.
1
Appellee American Friends Service Committee (employer) is a religious corporation, whose principal operation is philanthropic work and many of whose employees are conscientious objectors to war, performing alternative civilian service. Appellees Lorraine Cleveland and Leonard Cadwallader (employees) are present or past employees of the employer.
2
Because of their religious beliefs, the employees in 1969 requested their employer to cease withholding 51.6%1 of the portion of their wages required to be withheld under § 3402 of the Internal Revenue Code.2 Although they conceded that these amounts were legally due to the Government, they wished to bear witness to their beliefs by reporting the amounts as taxes owed on their annual income tax returns but refusing to pay such amounts. They would thus compel the Government to levy in order to collect the taxes.
3
In response to the employees' request, the employer ceased withholding from the employees' salaries 51.6% of that amount required to be withhold under § 3402, although it continued to pay the full amount required to be withheld under that provision to the Government. It then brought a suit for refund of the amount it had paid to the Government but not actually withheld from salaries. The appellee employees joined the employer's action, seeking on their own behalf an injunction barring the United States' enforcement of § 3402 against the employer with regard to 51.6% of the required withholding. They argued that, even though they were liable for these amounts, § 3402 as applied to this portion of their wages was unconstitutional as a deprivation of their right to free exercise of religion under the First Amendment since it did not allow them to bear witness to their beliefs by refusing to voluntarily pay a portion of their taxes.
4
The District Court ordered a refund of amounts tendered by the employer but not withheld by it, since the Government had also levied on the employees for these taxes and hence had received a double payment of the amount due. The Government does not contest this portion of the District Court's judgment.3
5
The District Court also enjoined the United States from enforcing § 3402 against the employer with respect to 51.6% of the required withholding from the employees' salaries, holding that § 3402 as applied to this amount constituted an unconstitutional abridgment of the right to free exercise of religion. The United States appeals this portion of the judgment.4 The District Court's opinion and order were entered before this Court handed down its opinions in Bob Jones University v. Simon, 416 U.S. 725, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1974), and Commissioner v. 'Americans United' Inc., 416 U.S. 752, 94 S.Ct. 2053, 40 L.Ed.2d 518 (1974).
6
The Anti-Injunction Act, 26 U.S.C. § 7421(a), provides that no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.5 In Bob Jones, supra, we rejected an appeal to create judicial exceptions to § 7421(a) other than that carved out in Enochs v. Williams Packing & Navigation Co., Inc., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962). We noted that Williams Packing was the 'capstone' of judicial construction of the Act and spelled an end to cyclical departures from the Act's plain meaning. Bob Jones University v. Simon, supra, 416 U.S. at 742, 94 S.Ct. at 2048. In 'Americans United' Inc., supra, we stated that a pre-enforcement injunction against the assessment or collection of taxes could be granted only if it were clear that the Government could in no circumstances ultimately prevail on the merits, and that equity jurisdiction existed. 'Unless both conditions are met, a suit for preventive injunctive relief must be dismissed.' Commissioner v. 'Americans United' Inc., 416 U.S., at 758, 94 S.Ct., at 2057.
7
The employees concede, and the District Court found, that § 3402 withholding is a method of collection of taxes within the meaning of § 7421(a).6 They further concede, as they must, that they are not within the Williams Packing exception; far from the Government's defense in a refund suit being meritless, the employees concede that the Government would undoubtedly prevail in such a refund action.
8
They contend, however, that since the District Court enjoined only one method of collection, and the Government is still free to assess and levy their taxes when due, the Act does not apply. But this contention ignores the plain wording of the Act which proscribes any 'suit for the purpose of restraining the assessment or collection of any tax.' The District Court's injunction against the collection of the tax by withholding enjoins the collection of the tax, and is therefore contrary to the express language of the Anti-Injunction Act.
9
The employees also argue that the Anti-Injunction Act is inapplicable because they have no alternative legal remedy available. They contend that a refund suit would be an inadequate remedy, in view of the concession on their part that the taxes are due, since they would surely lose such an action. But this ignores the fact that inadequacy of available remedies goes only to the existence of irreparable injury, an essential prerequisite for traditional equity jurisdiction, but only one of the two parts of the Williams Packing test. Commissioner v. 'Americans United' Inc., supra, 416 U.S. at 761, 94 S.Ct. at 2059; Bob Jones University v. Simon, supra, 416 U.S. at 745, 94 S.Ct. at 2050. Here as in 'Americans United', supra, the employees will have a 'full opportunity to litigate' their tax liability in a refund suit. Id., 416 U.S. at 762, 94 S.Ct. at 2059. Even though the remitting of the employees to a refund action may frustrate their chosen method of bearing witness to their religious convictions, a chosen method which they insist is constitutionally protected, the bar of the Anti-Injunction Act is not removed:
10
'(D)ecisions of this Court make it unmistakably clear that the constitutional nature of a taxpayer's claim, as distinct from its probability of success, is of no consequence under the Anti-Injunction Act.' Id., at p. 759, 94 S.Ct. at p. 2058.
11
See also Lockerty v. Phillips, 319 U.S. 182, 187, 63 S.Ct. 1019, 1022, 87 L.Ed. 1339 (1943).
12
In Bob Jones we left open the question of whether injunctive relief as to future collection would be proper as a form of ancillary relief in a refund suit where the taxpayer prevailed on the merits, in order to avoid the necessity of continuous subsequent 'backward-looking refund suits.' 416 U.S., at 748 n. 22, 94 S.Ct., at 2051 n. 22. That situation is not presented here since the employees have never brought a refund action, much less prevailed on the merits of such an action. Their joinder in the employer's successful refund action, based on the receipt of double payment by the Government, would afford no basis for injunctive relief based on their constitutional claim. The injunctive relief granted by the District Court in this case is plainly at odds with the dual objectives of the Act: efficient and expeditious collection of taxes with 'a minimum of preenforcement judicial interference,' and protection of the collector from litigation pending a refund suit. Bob Jones, supra, 416 U.S. at 748, 94 S.Ct. at 2046.7
13
The judgment of the District Court is reversed insofar as it enjoins the collection of taxes by the Government and the withholding of wages by the meployer.
14
Reversed in part.
15
Mr. Justice DOUGLAS, dissenting.
16
The sole question on the merits is whether the provision of the Internal Revenue Code, 26 U.S.C. § 3402, which requires employers to deduct and withhold from wages federal income taxes, is constitutional as applied to employees, who on religious grounds object to the withholding taxes on their salaries which represent that portion of the federal budget allocated to military expenditures.1 They invoke the Free Exercise Clause of the First Amendment, as they are Quakers who are opposed to participation in war in any form and who claim that this method of collection directly forecloses their ability freely to express that opposition, i.e., to bear witness to their religious scruples.
17
There is no evidence that questions the sincerity of the employees' religious beliefs. Nor is there any issue raised as to whether that religious belief would give the employees a defense against ultimate payment of the tax. The District Court held that the withholding was unconstitutional as to the employees, 368 F.Supp. 1176, a conclusion with which I agree.
18
The withholding process2 forecloses the employees from bearing witness against the use of these monthly deductions for military purposes. Under the opinion of this Court, they are deprived of bearing witness to their opposition to war—these withheld portions of their salaries pay the entire tax and they therefore have 'no alternative legal remedy,' a circumstance which distinguishes both Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292, and Bob Jones University v. Simon, 416 U.S. 725, 94 S.Ct. 2038, 40 L.Ed.2d 496.
19
Quakers with true religious scruples against participating in war may no more be barred from protesting the payment of taxes to support was than they can be forcibly inducted into the Armed Forces and required to carry a gun, and yet be denied all opportunity to state their religious views against participation. See United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733. The Court misses the entire point of the present controversy. The employees are barred from protesting these monthly deductions under the Court's opinion. In Enochs v. Williams Packing & Navigation Co., supra, and Bob Jones University v. Simon, supra, taxpayers sought to enjoin the collection of taxes by any means whatever, while the taxpayers litigated the question whether the taxes were due at all. Here the employees challenge the withholding law as depriving them of their one and only chance of contesting the constitutionality of the withholding of the tax as applied to them. So, unlike Enochs and Bob Jones University, there is no remedy by way of refund.3
20
The religious belief which the Government violates here is that the employees must bear active witness to their objections to their support of war efforts. Dr. Edwin Bronner, who qualified as an expert on the history of Quakerism, gave testimony which, as summarized by the District Court, 368 F.Supp., at 1178, stated: '(M)ost Quakers have considered it an integral part of their faith4 to bear witness to the beliefs which they hold. It has always been the prevailing view that simple preaching of one's beliefs is not sufficient, and that one's actions must accord with and give expression to one's beliefs. Many of the employees of the AFSC, including particularly appellees Cleveland and Cadwallader, share this belief, and for these employees, the operation of the withholding tax which leaves them no option as to the payment of the taxes which they conscientiously questions, operates as a direct abridgment of the expression and implementation of deeply cherished religious beliefs.'
21
If we are faithful to the command of the First Amendment, we would honor that religious belief. I have not bowed to the view of the majority that 'some compelling state interest' will warrant an infringement of the Free Exercise Clause. Sherbert v. Verner, 374 U.S. 398, 406—407, 83 S.Ct. 1790, 1795—1796, 10 L.Ed.2d 965; Braunfeld v. Brown, 366 U.S. 599, 603, 81 S.Ct. 1144, 1145, 6 L.Ed.2d 563. I have previously dissented from that position and opposed amending by judicial construction the plain command of the Free Exercise Clause. See Sherbert v. Verner, supra, 374 U.S. at 410—413, 83 S.Ct. at 1797—1799; McGowan v. Maryland, 366 U.S. 420, 575—576, 81 S.Ct. 1101, 1225, 1226, 6 L.Ed.2d 393; Arlan's Department Store v. Kentucky, 371 U.S. 218, 83 S.Ct. 277, 9 L.Ed.2d 264.
22
The Anti-Injunction Act, 26 U.S.C. § 7421(a), is no barrier. No 'assessment or collection of any tax' is restrained, only one method of collection is barred, the Government being left free to use all other means at its disposal. Moreover, to construe the Act as the Court construes it does not avoid a constitutional question but directly raises one. The Act, read as literally as the Court reads it, plainly violates the First Amendment as applied to the facts of this case, for 'no law' prohibiting the free exercise of religion includes every kind of law, including a law staying the hand of a judge who enjoins a law for the collection of taxes that trespasses on the First Amendment.
23
The power of Congress to ordain and establish inferior courts (Lockerty v. Phillips, 319 U.S. 182, 187, 63 S.Ct. 1019, 1022, 87 L.Ed. 1339) has not to this date been assumed or held to mean that Congress could require a federal court to take action in violation of the Constitution. Thus suspension of the writ of habeas corpus is restricted to 'Cases of Rebellion or Invasion' where 'the public Safety may require it.' Art. I, § 9, cl. 2. And when it comes to the First Amendment and the free exercise of religion, the mandate is that 'Congress shall make no law . . . prohibiting' it. The Anti-Injunction Act is a 'law'; and the Constitution gives no such preference to tax laws as to permit them to override religious scruples. May Congress enact a law that prohibits a minister from preaching if his taxes are in arrears? Or that disallows the making of a protest to a tax assessment even though the assessment and payment violate one's religious scruples? Until today, I would have thought not. The First Amendment, as applied to the States by the Fourteenth, bars a tax on the conduct of a religious exercise by a minority even though that religious exercise is obnoxious to the majority. Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292. Dicta to the effect that an allegation of unconstitutionality is irrelevant under the Anti-Injunction Act (Bailey v. George, 259 U.S. 16, 20, 42 S.Ct. 419, 66 L.Ed. 816)—which the Court today elevates to a holding were based on the premise that there was an alternative remedy to the unconstitutional actions. Here, as demonstrated, there is no other remedy. A refund suit is of no value, since the religious scruples which these taxpayers invoke relate to their inability to protest the payment, not to the use of the taxes themselves for military purposes.
24
I would affirm the judgment below.
1
This figure represents their estimate of the percentage of the federal budget which is military related.
2
26 U.S.C. § 3402. The provision provides in part that '(e)very employer making payment of wages shall deduct and wihhold upon such wages (except as otherwise provided in this section) a tax determined in accordance with the following tables. . . .' There is no dispute as to the applicability of the provision to the employees' wages.
3
Jurisdictional Statement 7 n. 3. We express no opinion as to the merits of the refund claim. The lower court's opinion is reported at 368 F.Supp. 1176.
4
Since the District Court held that § 3402 was unconstitutional as applied to the facts of this case, this Court has jurisdiction over the appeal under 28 U.S.C. § 1252. Fleming v. Rhodes, 331 U.S. 100, 102—103, 67 S.Ct. 1140, 1141—1142, 91 L.Ed. 1368 (1947); United States v. Christian Echoes Nat. Ministry, 404 U.S. 561, 563, 92 S.Ct. 663, 664, 30 L.Ed.2d 716 (1972).
5
See Act of Mar. 2, 1867, § 10, 14 Stat. 475; Rev.Stat. § 3224; Int.Rev.Code of 1939 § 3653. Section 7421(a) of the Code states: 'Except as provided in sections 6212(a) and (c), 6213(a), and 7426(a) and (b)(1), no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.'
6
The legislative history of this provision enacted in 1943 indicates that its purpose in part was to assist the Government in securing needed revenue without having to resort to levy. H.R.Rep.No.268, 78th Cong., 1st Sess., 1—2 (1943); S.Rep.No.221, 78th Cong., 1st Sess., 1 (1943). The District Court noted that relegating the Government to levying after returns were filed would be an inefficient process. 368 F.Supp., at 1180.
7
Because we have concluded that the Anti-Injunction Act bars injunctive relief, we have not found it necessary to decide other threshhold issues such as whether a three-judge District Court was required, whether the sovereign immunity of the United States barred the suit, and whether the requirements of 28 U.S.C. § 1331 were met.
1
The District Court found that 51.6% was a reasonable estimate of the proportion of the federal budget expended for military and war purposes based on the appropriations made by Congress in the calendar year 1968, according to a computation by the Friends Committee on National Legislation.
2
Objections to withholding are not restricted to Quakers. Some federal judges have passionately opposed the withholding of taxes on their salaries, not on the basis that the tax is unconstitutional as was once held (see O'Malley v. Woodrough, 307 U.S. 277, 59 S.Ct. 838, 83 L.Ed. 1289, overruling Miles v. Graham, 268 U.S. 501, 45 S.Ct. 601, 69 L.Ed. 1067), but rather on the ground that the loss of the use of the sums deducted during the year preceding the April 15 due date is a diminution of their compensation against the command of Art. III, § 1, which provides in part: '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.' Whatever may be the merits of that contention, the command of the First Amendment permits of no exceptions, for it states: 'Congress shall make no law . . . prohibiting the free exercise' of religion.
3
In Bob Jones University, the Court expressly stated: 'This is not a case in which an aggrieved party has no access at all to judicial review. Were that true, our conclusion might well be different.' 416 U.S., at 746, 94 S.Ct., at 2050. Similarly, in Commissioner v. 'Americans United' Inc., 416 U.S. 752, 94 S.Ct. 2053, 40 L.Ed.2d 518, the Court examined at length the claim that the respondent there had 'no alternative legal remedy,' ultimately concluding that the claim was untrue since a refund action for FUTA taxes, while slow and unsatisfactory from the taxpayer's point of view would still provide a forum in which judicial review of the legality of the actions of the IRS could be obtained. Id., at 761—762, 94 S.Ct., at 2058—2059.
In the present case, since the taxpayers do not claim that they are entitled to a refund (conceding that the Government could legitimately collect the tax by some method), a refund suit would be summarily dismissed without ever reaching the merits of their claim that the particular method of collection violated their free exercise rights. This situation appears, then, to fall squarely within the question left open in Bob Jones University, supra; the Court now apparently resolves that question sub silentio.
4
'Friends will ever be concerned to relate their religious insights to the realities of international life. Opportunities for courageous action and for the expression of invincible good will remain under any political system. Whatever the system and whatever the situation that calls for decision, Friends are called upon to make their witness.' Faith and Practice, the Book of Discipline of the New York Yearly Meeting of the Religious Society of Friends 42 (1968).
| 1112
|
419 U.S. 18
95 S.Ct. 164
42 L.Ed.2d 29
Ross Douglas RINGv.UNITED STATES.
No. 73-6969.
Nov. 11, 1974.
Defendant was convicted before the United States District Court for the Southern District of Florida of conspiracy to import cocaine, and he appealed. The Court of Appeals, 491 F.2d 1271, summarily affirmed and subsequently denied defendant's motion for rehearing, 495 F.2d 1372. Defendant petitioned for writ of certiorari. The Supreme Court held that where Government's chief witness testified that no promises had been made to her with respect to three counts of an indictment that had been returned against her involving the same events for which defendant stood trial, during summation defense counsel indicated that two counts against the witness had been dropped in return for her testifying and the prosecution summarily denied such fact but as case came to the Court the Solicitor General stated that the government records indicated that such an agreement had been entered into, the Court would not initially decide whether the Government had failed to make any required disclosures but would vacate the judgment of Court of Appeals and remand.
Petition granted; judgment of Court of Appeals vacated and case remanded.
PER CURIAM.
1
Petitioner was convicted on one count of conspiracy to improt cocaine in violation of 84 Stat. 1260, 21 U.S.C. § 841(a)(1), and 84 Stat. 1285, 21 U.S.C. § 952(a). At trial, the Government's chief witness against petitioner testified on direct examination by the Assistant United States Attorney that no promises had been made to her with respect to three counts of an indictment that had been returned against her involving the same events for which petitioner stands convicted. At the time this witness testified, she had pleaded guilty to one count of that indictment, a fact which she acknowledged. On cross-examination, she repeated her statement to the effect that no promises had been made to her. During summation, petitioner's counsel indicated that the two other counts against the witness had been dropped in return for her cooperation and testimony in petitioner's case. The Assistant United States Attorney, in her summation, stated categorically that the two other counts had not in fact been dropped. The Court of Appeals affirmed the conviction, 491 F.2d 1271.
2
As the case comes to this Court, the Solicitor General states that the records of the United States Attorney in whose district the case was tried indicate that the dame Assistant United States Attorney who tried the case had entered into an agreement with the witness whereby the Government had agreed to drop two counts of the indictment in return for a guilty plea on a third count. The witness had entered a guilty plea about one month prior to the petitioner's trial. The Solicitor General states that because 'the existence of such an agreement, its terms, and [the witness] Rubio's knowledge of it, cannot be determined on the record before this Court . . .' there is no occasion for this Court to consider whether the Assistant United States Attorney 'failed to make any required disclosures.' The better course, however, is to vacate the judgment of the Court of Appeals and remand the case to that court. If, on the basis of documentation offered by the Government on remand, that court is unable to dispose of the question presented for the first time here, that court would be free to remand the case to the District Court for further appropriate proceedings.
3
The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment of the Court of Appeals is vacated and the case is remanded to that court for proceedings consistent with this opinion.
| 01
|
42 L.Ed.2d 212
95 S.Ct. 247
419 U.S. 43
William OTTE, Trustee in Bankruptcy of Freedomland, Inc., Petitioner,v.UNITED STATES and the City of New York.
No. 73—375.
Argued Oct. 15, 1974.
Decided Nov. 19, 1974.
Syllabus[
1. A trustee in bankruptcy for an employer is required by the withholding provisions of the Internal Revenue Code of 1954 (IRC) and similar provisions of the New York City Administrative Code to withhold taxes from the payment of priority claims for wages earned by employees prior to the employer's bankruptcy, but unpaid at the inception of the bankruptcy proceeding. The payment of the wage claims is 'payment of wages' under IRC § 3402(a) requiring withholding of income taxes, and is wages under IRC § 3102(a) requiring withholding of social security taxes, and an 'employer,' defined by IRC § 3401(d)(1) to include 'the person having control of the payment' of wages, is present under § 3402(a). The same rationale applies to the withholding of city income taxes under the similar City Code provisions. Pp. 48—52.
2. From the obligation to withhold it follows that the trustee is also required to prepare and submit to the wage claimants and to the taxing authorities the reports and returns required of employers under IRC §§ 6051(a), 6001, and 6011 and similar provisions of the City Code, P. 52.
3. Requiring the trustee to withhold, report, and file returns does not unduly burden the administration of bankrupt estates so as to contravene the spirit of the Bankruptcy Act, for the burden is the same as any employer, or receiver, arrangement debtor, or other fiduciary, with a like number of employees must bear; moreover, both the IRC and the City Code allow the trustee to withhold taxes at a flat rate, thus facilitating the tax computation. Pp. 52—54.
4. Proofs of claim by the United States and New York City with respect to the withholding taxes on the priority wage claims are not required. Since tax liability accrues only when the wage is paid, and since the wages subject to the wage claims here, although earned before bankruptcy, were not paid prior thereto, so that the bankrupt employer's tax liability came into being only during bankruptcy, the taxes are not like debts of the bankrupt for which proofs of claims must be filed. Pp. 54—55.
5. The federal and city withholding taxes are entitled, as are the priority wage claims from which they emerge, to second priority of payment under § 64a(2) of the Bankruptcy Act. Such taxes are not within the fourth priority under § 64a(4), since they did not become due and owing by the bankrupt until after the wage claims were paid following bankruptcy. Nor are such taxes entitled to first priority under § 64a(1), since they are not costs or expenses of administration of the bankrupt estate, but are part of the wage claims themselves and are carved out of the payment of those claims. Pp. 55—58.
2 Cir., 480 F.2d 184, affirmed.
BLACKMUN, J., delivered the opinion for a unanimous Court.
Howard Karasik, New York City, for petitioner.
Keith A. Jones, Washington, D.C., for respondent United States.
Samuel J. Warms, New York City, for respondent.
Mr. Justice BLACKMUN delivered the opinion of the Court.
1
This bankruptcy case raises issues (a) as to whether priority claims for wages earned by employees prior to an employer's bankruptcy, but unpaid at the inception of the bankruptcy proceeding, are subject to withholding taxes, and, if so, (b) as to whether the taxing entities must file proofs of claim, and (c) as to which priority of payment, if any, the withholding taxes enjoy under 64a of the Bankruptcy Act (the Act), 11 U.S.C. § 104(a).1
2
* On September 15, 1964, Freedomland, Inc., a New York corporation, filed a petition with the United States District Court for the Southern District of New York for an arrangement under Chapter XI of the Act, 11 U.S.C. §§ 701—799. The arrangement failed, and on August 30, 1965, Freedomland was adjudicated a bankrupt. Petitioner, William Otte, was appointed and qualified as the trustee.
3
During the statutorily prescribed six-month period for the filing of proofs of claim against the estate, see §§ 57 and 63 of the Act, 11 U.S.C. §§ 93 and 103, 413 former employees of Freedomland filed proofs for unpaid wages (each claim in the amount of $600 or less and all the claims aggregating approximately $80,000) that had been earned within three months preceding the filing of the Chapter XI petition. These wage claims concededly were entitled to a second priority of payment under § 64a(2). No proofs for any federal income or Federal Insurance Contributions Act taxes on these wage claims, withholdable under Chapters 24 and 21, respectively, of the Internal Revenue Code of 1954, 26 U.S.C. §§ 3401—3404 and 3101—3126, were filed by the United States, and no proofs for any New York City personal income tax, withholdable under Chapter 46, Titles T and U, of the New York City Administrative Code, were filed by the city.
4
In November 1969 the trustee filed a motion for an order directing distribution to the 413 priority wage claimants without deduction for any federal, state, or city withholding taxes. He also asked that the referee declare that the trustee was not required to withhold or pay any such tax or to file any report or return relative thereto with the respective taxing authorities. The State of New York, although served, filed no response to the trustee's motion. The United States and the city did respond. The referee issued an order granting the trustee the relief he requested. App. 48a—50a. In a supporting memorandum decision, the referee stated that the withholding and reporting requirements of the federal and city statutes 'would impose a further burden on the administration of these estates which is entirely inconsistent with the objective of efficient expeditious economic administration of bankrupt estates,' and that 'compliance with withholding and reporting requirements . . . is utterly inconsistent with the spirit and the letter of the Bankruptcy Act.' Id. at 36a, 37a.
5
The United States and the city filed petitions with the United States District Court to review the referee's order and decision. After a hearing, the District Court reversed the order and decision insofar as they pertained to federal taxes. It directed the withholding of federal taxes on the priority wage claims, and also concluded that the amounts to be withheld were 'taxes which became legally due and owing by the bankrupt,' within the language of § 64a(4), and, therefore, were to be paid as tax claims of the fourth priority. The court observed that little more than a simple bookkeeping effort would be involved in withholding 25% of the wage distributions. 2 It held that proofs of claim were not required because the employees' proofs gave notice to the trustee and other creditors of the total amounts distributable on account of the claims. The District Court, however, ruled against the city on the ground that the city's personal income tax did not become effective until 1966, and thus no city tax was due and owing by the bankrupt in 1964 when the Chapter XI petition was filed. In re Freedomland, Inc., 341 F.Supp. 647 (1972).
6
The trustee, the—United States, and the city all appealed. The United States Court of Appeals for the Second Circuit affirmed in part and reversed in part. It held that the trustee was obligated to withhold, to report, and to pay over the withholding taxes on the wage claims, and that the taxing entities were not required to file proofs of claim. It further held, however—and thus to this extent disagreed with the District Court—that both the United States and the city were entitled to be paid as second priority claimants under § 64a(2). In re Freedomland, Inc., 480 F.2d 184 (1973).
7
We granted the trustee's petition for certiorari (unopposed by the United States) primarily because the circuits are in disarray as to the priority to be accorded to withholding taxes on prebankruptcy wage claims.3 414 U.S. 1156, 94 S.Ct. 912, 39 L.Ed.2d 108 (1974). No cross-petition was filed by either the United States or the city of New York.
II
Withholding, Reports, and Returns
8
Every Court of Appeals which has faced the issue, including the Second Circuit in the present case, has held, contrary to the ruling of the referee, that the withholding provisions of the Internal Revenue Code, and of state or municipal tax statutes, require that a trustee in bankruptcy withhold income and social security taxes from payments of wage claims, and that he prepare and submit to the wage claimants, and to the taxing authorities the reports and returns statutorily required of employers. United States v. Fogarty, 164 F.2d 26, 30—33 (CA8 1947); United States v. Curtis, 178 F.2d 268, 269 (CA6 1949), cert. denied, 339 U.S. 965, 70 S.Ct. 1001, 94 L.Ed. 1374 (1950); Lines v. California Dept. of Employment, 242 F.2d 201, 202, reh. den., 246 F.2d 70 (CA9), cert. denied, 355 U.S. 857, 78 S.Ct. 86, 2 L.Ed.2d 64 (1957); In re Connecticut Motor Lines, Inc., 336 F.2d 96 (CA3 1964). To the same effect is In re Daigle, 111 F.Supp. 109, 111 (Me.1953).
9
A. The requirement of withholding. Section 3402(a) of the Internal Revenue Code, 26 U.S.C. § 3402(a), requires '(e)very employer making payment of wages' to 'deduct and withhold upon such wages . . . a tax determined . . ..' Section 3401(a) defines 'wages' for withholding purposes to mean, with certain exceptions, 'all remuneration . . . for services performed by an employee for his employer,' and § 3401(d) defines 'employer' as 'the person for whom an individual performs or performed any service, of whatever nature, as the employee of such person.' The latter section makes an exception where 'the person for whom the individual performs or performed the services does not have control of the payment of the wages for such services'; in that case, 'employer' means 'the person having control of the payment of such wages.' Sections T46—51.0(a) and U46—8.0 of the New York City Administrative Code are generally to the same effect.4
10
The trustee contends that the payment of wage claims under the Bankruptcy Act, although for 'wages' within the meaning of that Act, is not the 'payment of wages' under § 3402(a), and that, in any event, the trustee is not the wage claimant's 'employer' to whom § 3402(a) relates.
11
The payments to the wage claimants who filed in this case are payments for services performed by them for their former employer, Freedomland, before the commencement of the proceeding under the Act. There is, and can be, no dispute as to this. The fact that the services were performed for the bankrupt, rather than for the trustee, and the fact that payment is made after the employment relationship terminated, do not convert the remuneration into something other than 'wages,' as defined by § 3401(a) of the Internal Revenue Code. That statute, as has been noted, broadly defines 'wages' to include, with stated exceptions not material here, 'all remuneration.' And § 3401(d), in defining 'employer,' twice refers to services that the employee 'performs or performed.' It thus speaks in the past tense as well as the present and thereby plainly reveals that a continuing employment relationship is not a prerequisite for a payment's qualification as 'wages.' The income tax withholding regulations since 1943 have so provided in specific terms. 26 CFR § 31.3401(a) 1(a)(5); Treas.Reg. 120 § 406.205(b) (1954); Treas.Reg. 116 § 405.105 (1944 and 1951 eds.); Treas.Reg. 115 § 404.101(a) (1943). The regulations are not in conflict with the statute; they further the statutory purpose and are reasonable; and they are a valid exercise of the rule-making power. Cammarano v. United States, 358 U.S. 498, 507—512, 79 S.Ct. 524, 530—532, 3 L.Ed.2d 462 (1959).5
12
The payment of the wage claims is thus 'payment of wages' under § 3402(a) of the Internal Revenue Code.
13
The fact that in bankruptcy payment of wage claims is effected by one other than the bankrupt former employer odes not defeat any withholding requirement. Although § 3402(a) refers to the 'employer making payment of wages,' § 3401(d) (1), as also has been noted, provides that if the person for whom the services were performed 'does not have control of the payment of the wages for such services,' the term 'employer' then means 'the person having control of the payment of such wages.' This obviously was intended to place responsibility for withholding at the point of control. The petitioner trustee suggests that control rests in the referee rather than in the trustee, because of the former's duty, under § 39a(5) of the Act, 11 U.S.C. § 67 (a)(5), to 'declare dividends.' We need not determine whether it is the trustee, with his responsibility under §§ 47a(8) and (11) of the Act, 11 U.S.C. §§ 75(a)(8) and (11), for making recommendations and actual payments, or the referee, with his supervision over the general administration of the bankrupt estate, or the estate itself, that has 'control of the payment of such wages,' within the meaning of § 3401(d)(1) of the Internal Revenue Code. One of them is the 'employer' and, as such, has the duty to withhold or to order the withholding, as the case may be.6 An 'employer,' under § 3402(a), is thus present.
14
The situation is the same with respect to FICA withholding. Section 3102(a) of the Internal Revenue Code, 26 U.S.C. § 3102(a), provides that the tax is to be collected by the employer by deducting 'from the wages as and when paid.' Here, too, the payments clearly are 'wages' under that statute, even though again, at the time of payment, the employment relationship between the bankrupt and the claimant no longer exists. And here, also, the regulations long and consistently have been to this effect. 26 CFR § 31.3121(a)—1(i); Treas.Reg. 128 § 408.226(a) (1951); Treas.Reg. 106 § 402.227(a) (1940). The fact that the FICA withholding provisions of the Code do not define 'employer' is of no significance, for that term is not to be given a narrower construction for FICA withholding than for income tax withholding.
15
Because of the identity of definition already observed, n. 4, supra, the same rationale necessarily applies to the New York City withholding tax.
16
The trustee finally suggests that the placing of a withholding obligation upon the trustee amounts to the imposition of a penalty barred by § 57j of the Act, 11 U.S.C. § 93(j). This argument, however, rests upon the presence of § 6672 of the Internal Revenue Code, 26 U.S.C. § 6672, and §§ T46—65.0(g) and U46—35.0(g) of the New York City Administrative Code, all of which impose a penalty, apart from the tax, on a person who willfully fails to fulfill his obligation to withhold or who willfully attempts to evade or defeat any tax. That, obviously, is not this case.
17
B. The requirement of reports and returns. This routinely follows from the obligation to withhold. Section 6051(a) of the Internal Revenue Code, 26 U.S.C. § 6051(a), provides that a person required to withhold must furnish the employee a written statement showing the wages subject to withholding and the amount withheld on account of each tax. A duplicate of that statement is to be available for filing with the Internal Revenue Service. § 6051(d). Sections 6001 and 6011 require every person responsible for payment or collection of taxes to keep such records and make such returns as the Secretary prescribes. The applicable regulations respond to these statutes. 26 CFR §§ 31.6001—1, 31.6001—2, 31.6001 5, 31.6011(a)—6(a)(1), and 31.6051—1; Rev.Proc. 71—18, 1971—1 Cum.Bull. 684. It is undisputed that the petitioner trustee must comply with these provisions if he is subject to the withholding requirements of §§ 3402 and 3102. Nicholas v. United States, 384 U.S. 678, 693, 86 S.Ct. 1674, 1684, 16 L.Ed.2d 853 (1966).
18
The New York City Administrative Code provisions are to similar effect, §§ T46—52.0 and T46—54.0, U46—9.0 and U46—11.0, and we reach the same conclusions with respect to reports and returns thereunder.
19
C. Expense and delay. The trustee argues, as the referee held, that the imposition of obligations to withhold, report, and file returns places a burden on the administration of bankrupt estates that is at odds with economic and expeditious administration and with the spirit of the Act. He places some reliance, as did the referee, on the paper by Referee Hiller, The Folly of the Fogarty Case, 32 Ref.J. 54 (1958), where the author states that 'the application of the Fogarty rule is sheer nonsense' and that the case is 'out of harmony with sound bankruptcy law.' Id., at 54, 56.
20
There is, of course, an overriding concern in the Act with keeping fees and administrative expenses at a minimum so as to preserve as much of the estate as possible for the creditors. 3A W. Collier, Bankruptcy 62.05(1), 62.02(5) (14th ed. 1972). And it cannot be denied that paperwork takes time and occasions expense. In this particular case, withholding must be computed on the 413 wage claims; returns (Forms W—2, W—3, and 941) must be prepared and furnished the claimant and the Internal Revenue Service; records must be maintained; and the taxes withheld must be remitted to the respective taxing entities.
21
We are not persuaded, however, that this burden would be so undue as to be inconsistent with or violative of the spirit of the Act. It is the same burden, no more and no less, than any employer of the same size must bear, and it is the same burden that is borne by any receiver or arrangement debtor or any other fiduciary with a like number of employees. The burden is not disproportionate.7 Further, the Internal Revenue Service has endeavored to lighten the load by its alternative 25% combined bankruptcy withholding rate for income and FICA taxes. See n. 2, supra. New York City has done the same with its 1% withholding rate. Neither should the burden make it necessary, as is so often and so easily suggested, to employ an accountant. Computations at the rates of 25% and 1%, respectively, are simple and elementary arithmetic exercises, hardly worthy of an accountant's talent; a high school student is able to make those computations as is any bookkeeper, clerk, or the trustee himself. The added tasks of withholding, reporting, returning, and remitting are contemplated, in our view, by the Act. The interests of the taxing entities, who are creditors, too, and, through them, the interests of the public, outweigh the minuscule added burden for the estate. See Swarts v. Hammer, 194 U.S. 441, 444, 24 S.Ct. 695, 696, 48 L.Ed. 1060 (1904). If relief is to be considered for bankrupt estates in this respect, it is a matter for legislative, not judicial, concern. There is nothing in the Act or in the Internal Revenue Code that relieves the trustee of these duties. Cf. §§ 7507, 108(b), 371, and 372 of the Internal Revenue Code, 26 U.S.C. §§ 7507, 108(b), 371, and 372.
III
Proofs of Claim
22
The trustee asserts that becuase the United States and the city failed to file proofs of claim for the taxes at issue, payment thereof is barred. It is said that these taxing entities were on notice, by reason of Freedomland's bankruptcy schedules, that the bankrupt owed the priority wage claims; that these claims were to be filed within six months; that the entities could obtain an extension of time, under § 57n of the Act, 11 U.S.C. § 93(n), in which to compute and file their claims; and that they chose to ignore the referee's bar order directed, among others, to 'taxing authorities and agencies,' App. 24a.
23
This argument, in our view, misconceives the nature of the taxes that are to be withheld. Liability for the taxes accrues only when the wage is paid. Sections 3402(a) and 3101(a) of the 1954 Code; New York City Administrative Code §§ T46—51.0(a) and U46—8.0. The wages that are the subject of the wage claims, although earned before bankruptcy, were not paid prior to bankruptcy. Freedomland had incurred no liability for the taxes. Liability came into being only during bankruptcy. The taxes do not partake, therefore, of the nature of debts of the bankrupt for which proofs of claim must be filed.
24
Furthermore, the filing of proofs by the United States and New York City obviously would serve no purpose here. Proofs apprise the trustee and other creditors of the existence of claims against the estate. The priority wage claims themselves, however, cover the gross wages earned and unpaid. These include any tax that is to be withheld. The tax is not an added increment.
25
We conclude, therefore, that proofs of claim on the part of the United States and of New York City with respect to withholding taxes on priority wage claims are not required.
IV
26
With withholding taxes thus determined as properly applicable to priority wage claims, their placement in the payment scale under § 64a must be determined.8 The choice lies between the first priority (costs and expenses of administration), urged by the United States; the second priority (wages and commissions, limited as the statute specifies), urged by the city of New York; the fourth priority ('taxes which became legally due and owing by the bankrupt'), urged by none of the parties here; and no priority at all. The third and fifth priorities clearly have no possible application to these taxes.
27
We readily reject the fourth priority. The withholding taxes are not taxes which became due and owing by the bankrupt. As has been noted above, the taxes did not become due and owing at all until the claims, constituting wages, were paid. This book place after bankruptcy, not before. The situation, thus, differs from that where the bankrupt paid wages prior to bankruptcy, but the taxes withheld were not remitted to the taxing entities by the time of the inception of the bankruptcy proceeding. The latter would be taxes 'which became legally due and owing by the bankrupt.' See In re John Horne Co., 220 F.2d 33 (CA7 1955); Pomper v. United States, 196 F.2d 211 (CA2 1952).
28
We similarly reject the first priority, although we recognize that this appears to be the favorite conclusion reached by those courts that have passed upon the issue. See n. 3, supra. The leading case for this approach is United States v. Fogarty, supra. The Court there, however, without a statement of underlying reasons, merely concluded that the taxes 'should be allowed and classified as an expense of administration,' 164 F.2d, at 33. In Lines v. California Dept. of Employment, supra, the court followed Fogarty and held that, because the tax accrued 'subsequent to the filing of the petition in bankruptcy, such tax had the character of an expense of administration.' 246 F.2d, at 71.
29
We think that more than a general observation that the taxes arose during bankruptcy is required to dignify withholding taxes with the prime status of first priority. We grant that the very language of § 64a(1) ('including the actual and necessary costs and expenses of preserving the estate subsequent to filing the petition') necessarily indicates that first priority items include some in addition to those that preserve or develop the bankrupt estate. Withholding taxes, however, do not strike us as costs or expenses of doing business. They are attributable in their entirety to the availability of funds for the payment of priority wage claims. They accrue only as those claims are paid and, to the extent of that payment, the payment of the taxes should be assured. In addition, it is anomalous to accord withholding taxes a higher priority than the wage claims to which they so directly relate. They can be computed only upon the amount of funds available for payment of the wage claims and should not have a computational base greater than those payments. The withholding taxes are, in full effect, part of the claims themselves and derive from and are carved out of the payment of those claims. We therefore fully agree with the Second Circuit's observation, 480 F.2d, at 190: 'Conceptually the tax payments should be treated in the same way as the wages from which they derive and of which they are a part.'
30
We see nothing in United States v. Randall, 401 U.S. 513, 91 S.Ct. 991, 28 L.Ed.2d 273 (1971), with its observation, id., at 515, 91 S.Ct. at 993, that the Bankruptcy Act 'is an overriding statement of federal policy on this question of priorities,' that is contrary to the result we reach here. That case concerned § 7501(a) of the Internal Revenue Code, 26 U.S.C. § 7501(a), with its provision for a trust fund for withheld taxes, and the impact of that statute, when not complied with, upon payment of first priority costs and expenses of administration. Randall is not a holding, as the trustee would claim, Brief for Petitioner 18—19, that the withholding taxes do not have the same priority as the wage claims themselves.
31
We therefore conclude that these federal and city withholding taxes are entitled, as are the priority wage claims from which they emerge, to second priority of payment under § 64a(2) of the Act, 11 U.S.C. § 104(a).9
32
The judgment of the Court of Appeals is affirmed.
33
It is so ordered.
34
Affirmed.
1
'§ 104. Debts which have priority.
'(a) The debts to have priority, in advance of the payment of dividends to creditors, and to be paid in full out of bankrupt estates, and the order of payment, shall be (1) the costs and expenses of administration, including the actual and necessary costs and expenses of preserving the estate subsequent to filing the petition . . .; (2) wages and commissions, not to exceed $600 to each claimant, which have been earned within three months before the date of the commencement of the proceeding, due to workmen . . .; (4) taxes which became legally due and owing by the bankrupt to the United States or to any State or any subdivision thereof which are not released by a discharge in bankruptcy . . ..'
2
Under Internal Revenue Service directives, a trustee in bankruptcy, upon paying priority wage claims, has the option of withholding income and FICA taxes either at a combined flat rate of 25% or at the rates prescribed by §§ 3101 and 3402 of the Code. 26 U.S.C. §§ 3101 and 3402.
3
First priority: United States v. Fogarty, 164 F.2d 26, 33 (CA8 1947); Lines v. California Dept. of Employment, 242 F.2d 201, 203, reh. den., 246 F.2d 70 (CA9), cert. denied, 355 U.S. 857, 78 S.Ct. 86, 2 L.Ed.2d 64 (1957). Second priority: In re Freedomland, Inc., 480 F.2d 184, 190 (CA2 1973). Fourth priority: In re Connecticut Motor Lines, Inc., 336 F.2d 96, 102—106, 108 (CA3 1964).
In In re John Horne Co., 220 F.2d 33, 35 (CA7 1955), a case concerning wages paid prior to bankruptcy, the court stated: 'We are not impressed with the reasoning of the court in the Fogarty case.' See also Note, 56 Mich.L.Rev. 631 (1958); Comment, Bankruptcy—Priorities—Fourth Priority Assigned Payroll Taxes on Second Priority Wages, 40 N.Y.U.L.Rev. 360 (1965); Note, 19 Rutgers L.Rev. 546 (1965).
4
The terms 'wages' and 'employer,' as they appear in Titles T and U of the City Code are given the same meanings they have in the Internal Revenue Code. New York City Administrative Code §§ T46—1.0(c) and U46—1.0(b), (e), and (l) (1971).
5
We see nothing to the contrary in United States v. Embassy Restaurant, Inc., 359 U.S. 29, 79 S.Ct. 554, 3 L.Ed.2d 601 (1959), which is pressed upon us by the trustee. The issue there was whether contributions by an employer to a union welfare fund, as required under a collective-bargaining agreement, were entitled to second priority as 'wages . . . due to workmen.' There is no such issue here, for the trustee acknowledges, as he must, that the present claims are, indeed, for 'wages,' within the meaning of the Bankruptcy Act.
6
The result would be no different if it is argued that the bankruptcy court rather than its trustee is 'the person having control of the payment of such wages.' There is no provision excepting a court from the requirement of withholding on amounts paid an employee.' United States v. Fogarty, 164 F.2d, at 32.
7
The District Court, on review of the referee's order and decision, received evidence with respect to costs of compliance. It concluded that compliance 'adds only slightly to the trustee's inescapable task and cost of verifying each claim before payment.' 341 F.Supp. 647, 654 (SDNY 1972).
8
The trustee has paid the priority wage claims, with the taxes withheld and set aside. This was done, however, pursuant to an agreement that the rights of the parties would not be affected thereby. The United States, therefore, is not in a position to claim that a trust fund has been established under § 7501(a) of the Internal Revenue Code, 26 U.S.C. § 7501(a). See United States v. Randall, 401 U.S. 513, 91 S.Ct. 991, 28 L.Ed.2d 273 (1971); Nicholas v. United States, 384 U.S. 678, 690—691, 86 S.Ct. 1674, 1683, 16 L.Ed.2d 853 (1966).
9
This conclusion makes it unnecessary for us to consider whether, if the Government were to prevail in its first-priority argument, the judgment of the Court of Appeals here could be modified in the absence of a cross-petition by the United States. We are advised that the bankrupt estate's assets are sufficient to pay all first- and second-priority claims in full. Tr. of Oral Arg. 28—29. Whether the withholding taxes have first-rather than second-priority status is, therefore, of no practical consequence to the Government in the present case.
| 1112
|
419 U.S. 20
95 S.Ct. 260
42 L.Ed.2d 195
ALLENBERG COTTON COMPANY, INC., Appellant,v.Ben E. PITTMAN.
No. 73—628.
Argued Oct. 17, 1974.
Decided Nov. 19, 1974.
Syllabus
Appellant, a cotton merchant with its principal office in Memphis, Tenn., in January 1971 negotiated a 'forward' contract with appellee, a Mississippi farmer, for appellee's forthcoming cotton crop. The agreement was made through a Mississippi broker who arranged contracts for appellant for cotton to be resold in interstate and foreign markets. Appellant had contracted with mills outside Mississippi for sale of most of the cotton to be purchased in Mississippi, including that to be grown by appellee under this contract. Alleging refusal by appellee farmer to deliver the cotton, appellant brought suit for injunctive relief and damages. The Supreme Court of Mississippi, reversing the court below, dismissed the complaint, holding that appellant's contracts were wholly intrastate, being completed upon delivery of cotton at the warehouse, and upholding appellee's contention that the Mississippi courts could not be used to enforce the contract as appellant was doing business in Mississippi without the requisite certificate. Appellee moved to dismiss in this Court on the ground that the State Supreme Court did not pass on the federal question. Held:
1. A certificate executed by the Chief Justice of the State Supreme Court makes it clear that a federal question was raised and decided by that court on the validity of a state statute as applied to the facts of this case under the Commerce Clause of the Federal Constitution, and this Court has jurisdiction over the appeal. Pp. 22—23.
2. The Mississippi Supreme Court's refusal to enforce the contract contravened the Commerce Clause, since the cotton in the instant transaction, though to be delivered to appellant at a local warehouse, was to be there only temporarily for sorting and classification for out-of-state shipment and was thus already in the stream of interstate commerce. Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 42 S.Ct. 106, 66 L.Ed. 239, Pp. 25—34.
276 So.2d 678, reversed and remanded.
John McQuiston, II, Memphis, Tenn., for appellant.
George C. Cochran, University, Miss., for appellee.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This is an appeal from a judgment of the Supreme Court of Mississippi, 276 So.2d 678 (1973), which held that under the applicable Mississippi statute1 appellant might not recover damages for breach of a contract to deliver cotton because of its failure to qualify to do business in the State. Appellant claims that that Mississippi statute as applied to the facts of this case is repugnant to the Commerce Clause of the Constitution. A motion to dismiss was made on the ground that the Mississippi Supreme Court did not pass on that federal question and that such question was not in fact raised. We accordingly postponed the question of probable jurisdiction to a hearing on the merits, 415 U.S. 988, 94 S.Ct. 1585, 39 L.Ed.2d 885 (1974).
2
* On application of appellant (appellee below), the Chief Justice of the Supreme Court of Mississippi executed a certificate dated August 17, 1973, stating in part:
3
'(T)his Court . . . hereby certifies . . . that in this appeal . . . and in the arguments both oral and by brief made in this Court on behalf of the appellee on the original appeal and the petition of appellee for rehearing and brief filed in support thereof, it was insisted by appellee that under the facts of this case, the contract sued upon by the appellee was made in 'interstate commerce' and that it was transacting business in interstate commerce, and thus entitled to protection as such under the applicable statutes of Mississippi and the Commerce Clause of the Federal Constitution; and that in its deliberation of this case, this Court both on the original appeal and the petition for rehearing considered these questions of interstate commerce; and it was the judgment of this Court that said contract was not made in interstate commerce, nor that the facts of the case showed appellee to be transacting business in interstate commerce within the meaning of the laws of Mississippi and that Mississippi Code 1942 Ann. Section 5309—239 (Supp.1972) as applied by this Court in this case to the Allenberg Cotton Company, Inc., a Tennessee corporation, to bar it from maintaining suit in the courts of this state was not repugnant to the Commerce Clause of the United States Constitution; and it was necessary to the Court's judgment in said case to determine said questions raised as to interstate commerce, and that such questions were determined adversely to the position of appellee.' The Chief Justice, speaking for the court, makes its clear that a federal question was raised and decided and that that question was the validity of the state statute as applied to the facts of this case under the Commerce Clause of the Federal Constitution. That certificate is adequate under our decisions.2 So we proceed to the merits.
II
4
Appellant is a cotton merchant with its principal office in Memphis, Tenn. It had arranged with one Covington, a local cotton buyer in Marks, Miss. to contract cotton' to be produced the following season by farmers in Quitman County, Miss. The farmer, Pittman, in the present case, made the initial approach to Covington, seeking a contract for his cotton; in other instances Covington might contact the local farmers.3 In either event, Covington would obtain all the information necessary for a purchase contract and telephone the information to appellant in Memphis, where a contract would be prepared, signed by an officer of appellant, and forwarded to Covington. The latter would then have the farmer sign the contract. For these services Covington received a commission on each bale of cotton delivered to appellant's account at the local warehouse.4 When the farmers delivered the cotton, Covington would draw on appellant and pay them the agreed price.
5
The Supreme Court of Mississippi held that appellant's transactions with Mississippi farmers were wholly intrastate in nature, being completed upon delivery of the cotton at the warehouse, and that the fact that appellant might subsequently sell the cotton in interstate commerce was irrelevant to the federal question 'as the Mississippi transaction had been completed and the cotton then belonged exclusively to Allenberg, to be disposed of as it saw fit, at its sole election and discretion,' 276 So.2d, at 681. Under the contract which Covington negotiated with appellee, Pittman, the latter was to plant, cultivate, and harvest a crop of cotton on his land, deliver it to a named company in Marks, Miss., for ginning, and then turn over the ginned cotton to appellant at a local warehouse. The suit brought by appellant alleged a refusal of Pittman to deliver the cotton and asked for injunctive relief and damages. One defense tendered by Pittman was that appellant could not use the courts of Mississippi to enforce its contracts, as it was doing business in the State without the requisite certificate. The Supreme Court of Mississippi sustained that plea, reversing a judgment in favor of appellant, and dismissed the complaint.
6
Appellant's arrangements with Pittman and the broker, Covington, are representative of a course of dealing with many farmers whose cotton, once sold to appellant, enters a long interstate pipeline. That pipeline ultimately terminates at mills across the country or indeed around the world, after a complex sorting and matching process designed to provide each mill with the particular grade of cotton which the mill is equipped to process.
7
Due to differences in soil, time of planting, harvesting, weather, and the like, each bale of cotton, even though produced on the same farm, may have a different quality.5 Traders or merchants like appellant, with the assistance of the Department of Agriculture, must sample each bale and classify it according to grade, staple length, and color.6 Similar bales, whether from different farms or even from different collection points, are then grouped in multiples of 100 into 'even-running lots' which are uniform as to all measurable characteristics. This grouping process typically takes place in card files in the merchant's office; when enough bales have been pooled to make an even-running lot, the entire lot can be targeted for a mill equipped to handle cotton of that particular quality, and the individual bales in the lot will then be shipped to the mill from their respective collection points.7 It is true that title often formally passes to the merchant upon delivery of the cotton at the warehouse, and that the cotton may rest at the warehouse pending completion of the classification and grouping processes; but, as the description above indicates, these fleeting events are an integral first step in a vast system of distribution of cotton in interstate commerce.
8
The contract entered into between appellant and Pittman was a standard 'forward' contract, executed in January 1971 and covering the crop to be grown that year. Such contracts have become common in the American cotton-marketing system; they provide a ready way for the cotton farmer to protect himself against a price decline by ensuring that he will be able to sell his crop at a sufficient price to cover his expenses.8 The merchant who has contracted to but the cotton from the farmer must in turn protect himself against market fluctuations. In this case, appellant had entered into contracts for sale of cotton to customers outside Mississippi,9 in quantities approximating the expected yield of the Pittman contract and appellant's other Mississippi contracts. A resale contract of this sort ensures that the merchant will be able to cover his own expenses and recoup a small profit; alternatively, the merchant may protect himself by 'hedging,' i.e., offsetting his purchases with a sale of futures contracts on the cotton exchange.10 The stability of the position he has constructed for himself, however, clearly depends on the integrity and enforceability of his contracts for purchase and resale.11
9
A recent House report on the functioning of the commodity exchanges in connection with the marketing of agricultural products said:
10
'The commodity futures markets are a very important part of our marketing system. Producers, processors, and merchandisers of commodities hedge the prices at which they buy or sell on a particular day. When the local elevator buys grain from a farmer he sells the same quantity on the futures market deliverable at about the same time he anticipates sale of the cash grain he has purchased. When the actual sale is made, he 'lifts' his hedge by buying the same quantity on the futures market in the same futures month he previously sold in. If the price of grain on the cash market fluctuates either up or down, the gain or loss should be approximately offset by the hedged position.
11
'. . . (I)n this situation if the market price of the cash commodity drops 15 cents per bushel between the time the elevator operator purchases the grain and the time he resells it 6 months later, he would incur a loss of $1,500 on each 10,000 bushels. If, however, at the time he purchased the grain from the farmer he had sold the same amount of grain on the futures market in a contract which matured 6 months later, the futures price should also decrease a similar 15 cents per bushel and the elevator operator would profit $1,500 on each 10,000 bushels he sold on the futures market. The net effect, of course, of thse offsetting purchases and sales would be to guard the elevator operator against loss, thereby permitting him to continue in business without regard to price fluctuation, providing the futures market operates in the normal historical manner.
12
'Such use of the futures market by a producer, buyer, or seller of the commodity takes the gamble of commodity price fluctuation out of his operation for him and enables him to lock in a relatively small margin of profit. This system has worked well most of the time, but whenever the supplies of commodities are short or the number of speculators becomes excessive, there exist opportunities for manipulations and distortions in the marketing system to such a great extent that the market no longer reflects supply and demand, and during part of the marketing season, prices can either be artificially raised or lowered.
13
'In the past year, fluctuations in the market have been so wide and erratic as to indicate the possibility of price manipulation and squeezing. Businessmen who handle commodities on some occasions have been unable to buy back contracts they day they sell the commodity and many of them have found that the commodities markets such as the Chicago Board of Trade and the Chicago Mercantile Exchange do not always provide a dependable place to hedge their business deals. With the compromsing of this kind of price insurance, many businessmen who handle commodities have felt compelled to substantially increase the amount they charge for their part in the marketing system and some have lost vast sums of money. Some now feel compelled to triple or quadruple the normal margin to cover new risks or to act only on a commission basis.
14
'Consumers are also greatly affected by any breakdown in our marketing system. When the futures markets are manipulated or become undependable, wider margins required at each level add to the price of the final product. Historically, erratic swings in prices result in retail prices going up more than they ever come back down. So consumers also have a great stake in preventing excessive speculation or manipulation from causing wide fluctuations in commodity prices.' H.R.Rep. No. 93—963, pp. 2—4 (1974).
15
While that discussion covers grain, there is no essential difference, relevant here, when it comes to cotton.
16
We deal here with a species of control over an intricate interstate marketing mechanism. The cotton exchange, like the livestock-marketing regime involved in Swift & Co. v. United States, 196 U.S. 375, 25 S.Ct. 276, 49 L.Ed. 518 (1905), and in Stafford v. Wallace, 258 U.S. 495, 42 S.Ct. 397, 66 L.Ed. 735 (1922), has federal protection under the Commerce Clause. In Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 42 S.Ct. 106, 66 L.Ed. 239 (1921), wheat raised in Kentucky was purchsed by a miller in Tennessee, payment and delivery to a common carrier being made in Kentucky. There, as here, a suit against the farmer in a Kenturcky court was defended on the grounds that the buyer had not qualified to do business in Kentucky and that, therefore, the contract was unenforceable. The Court held that the Kentucky statute could not be applied to defeat this transaction which, though having intrastate aspects, was in fact 'a part of interstate commerce,' id., at 292, 42 S.Ct. at 109. The same observation is pertinent here. Delivery of the cotton to a warehouse, taken in isolation, is an intrastate transaction. But that delivery is also essential for the completion of the interstate transaction, for sorting and classification in the warehouse are essential before the precise interstate destination of the cotton, whether in this country or abroad, is determined. The determination of the precise market cannot indeed be made until the classification is made. The cotton in this Mississippi sale, like the wheat involved in Chicago Board of Trade v. Olsen, 262 U.S. 1, 33, 43 S.Ct. 470, 476, 67 L.Ed. 839 (1923), though temporarily in a warehouse, was still in the stream in interstate commerce. As the Court stated in the Olsen case:
17
'The fact that the grain shipped from the west and taken from the cars may have been stored in warehouses and mixed with other grain, so that the owner receives other grain when presenting his receipt for continuing the shipment, does not take away from the interstate character of the through shipment any more than a mixture of the oil or gas in the pipe lines of the oil and gas companies in West Virginia, with the right in the owners to withdraw their shares before crossing state lines, prevented the great bulk of the oil and gas which did thereafter cross state lines from being a stream or current of interstate commerce.' Id., at 33—34, 43 S.Ct. at 476.
18
The Court held in Shafer v. Farmers Grain Co., 268 U.S. 189, 45 S.Ct. 481, 69 L.Ed. 909 (1925), that a pervasive state regulatory scheme governing the purchase of wheat for interstate shipment was not permissible, since the '(b) uying for shipment' was 'as much a part of (interstate commerce) as the shipping.' Id., at 198, 45 S.Ct. at 485. And it added:
19
'Wheat—both with and without dockage—is a legitimate article of commerce and the subject of dealings that are nation-wide. The right to buy it for shipment, and to ship it, in interstate commerce, is not a privilege derived from state laws, and which they may fetter with conditions, but is a common right, the regulation of which is committed to Congress and denied to the states by the commerce clause of the Constitution.' Id., at 198—199, 45 S.Ct. at 485 (footnote omitted).
20
In Hood & Sons v. Du Mond, 336 U.S. 525, 69 S.Ct. 657, 93 L.Ed. 865 (1949), we held that a State might not deny a license to a milk distributor serving the interstate market on the ground that the new facilities would reduce the supply of milk for local markets. In expressing the philosophy of the Commerce Clause to federalize the regulation of interstate and foreign commerce, we said:
21
'The Commerce Clause is one of the most prolific sources of national power and an equally prolific source of conflict with legislation of the state. While the Constitution vests in Congress the power to regulate commerce among the states, it does not say what the states may or may not do in the absence of congressional action, nor how to draw the line between what is and what is not commerce among the states. Perhaps even more than by interpretation of its written word, this Court has advanced the solicarity and prosperity of this Nation by the meaning it has given to these great silences of the Constitution.' Id., at 534—535, 69 S.Ct. at 663.
And we added:
22
'Our system, fostered by the Commerce Clause, is that every farmer and every craftsman shall be encouraged to produce by the certainty that he will have free access to every market in the Nation, that no home embargoes will withhold his exports, and no foreign state will be customs duties or regulations exclude them. Likewise, every consumer may look to the free competition from every producing area in the Nation to protect him from explitation by any. Such was the vision of the Founders; such has been the doctrine of this Court which has given it reality.' Id., at 539, 69 S.Ct. at 665.
23
Much reliance is placed on Eli Lilly & Co. v. Sav-On-Drugs, Inc., 366 U.S. 276, 81 S.Ct. 1316, 6 L.Ed.2d 288 (1961), for sustaining Mississippi's action. The case is not in point. There the Court found that the foreign corporation had an office and salesmen in New Jersey selling drugs intrastate. Since it was engaged in an intrastate business it could be required to obtain a license even though it also did an interstate business.
24
Reliance is also placed on Union Brokerage Co. v. Jensen, 322 U.S. 202, 64 S.Ct. 967, 88 L.Ed. 1227 (1944), which is likewise not in point. It is true that the customhouse broker in that case was in the business of dealing with goods in interstate transit. Nevertheless, we expressly noted that '(the broker's) activities are not confined to its services at the port of entry. It has localized its business, and to function effectively it must have a wide variety of dealings with the people in the community.' Id., at 210, 64 S.Ct. at 972. As in Eli Lilly, this element of localization was held to be distinguishable from cases such as Dahnke-Walker in which a foreign corporation enters the State 'to contribute to or to conclude a unitary interstate transaction.' Id., at 211, 64 S.Ct. at 973. In this respect we have found appellant's transactions, when viewed against the background of customary trade practices in the cotton market, to be indistinguishable from the activities in Dahnke-Walker in any significant regard.
25
The Mississippi Supreme Court, as noted, ruled that appellant was doing business in Mississippi. Appellant, however, has no office in Mississippi, nor does it own or operate a warehouse there. it has no employees soliciting business in Mississippi of otherwise operating there on a regular basis;12 its contracts are arranged through an independent broker, whose commission is paid either by appellant or by the farmer himself and who has no authority to enter into contracts on behalf of appellant.13 These facts are in sharp contrast to the situation in Eli Lilly, where Lilly operated a New Jersey office with 18 salaried employees whose job was to promote use of Lilly's products. 366 U.S., at 279 281, 81 S.Ct. at 1318—1320. There is no indication that the cotton which makes up appellant's 'perpetual inventory' in Mississippi is anything other than what appellant has claimed it to be, namely, cotton which is awaiting necessary sorting and classification as a prerequisite to its shipment in interstate commerce.
26
In short, appellant's contacts with Mississippi do not exhibit the sort of localization or intrastate character which we have required in situations where a State seeks to require a foreign corporation to qualify to do business. Whether there were local tax incidents of those contacts which could be reached is a different question on which we express no opinion. Whether the couse of dealing would subject appellant to suits in Mississippi is likewise a different question on which we express no view. We hold only that Mississippi's refusal to honor and enforce contracts made for interstate or foreign commerce is repugnant to the Commerce Clause.
27
The judgment is reversed and the cause remanded for proceedings not inconsistent with this opinion.
28
So ordered.
29
Reversed and remanded.
30
Mr. Justice REHNQUIST, dissenting.
31
The question in this case is whether Mississippi may require appellant, a Tennessee corporation, to quality as a foreign corporation under Mississippi law before it may sue in the courts of Mississippi to enforce a contract. The Supreme Court of Mississippi summarized the facts of the transaction, which it stated were 'without substantial dispute,' as follows:
32
'It is apparent that these transactions of Allenberg in each case, including that with Pittman, took place wholly in Mississippi. The contract was negotiated in Mississippi, executed in Mississippi, the cotton was produced in Mississippi, delivered to Allenberg at the warehouse in Mississippi, and payment was made to the producer in Mississippi. All interest of the producer in the cotton terminated finally upon delivery to Allenberg at the warehouse in Marks. The fact that afterward Allenberg might or might not sell the cotton in interstate commerce is irrelevant to the issue here, as the Mississippi transaction had been completed and the cotton then belonged exclusively to Allenberg . . ..' 276 So.2d 678, 681 (1973).
33
The Supreme Court of Mississippi might have added that through an exclusive agent, who was a Mississippi resident, Allenberg entered into over 20 similar contracts in 1971 with farmers in Quitman County alone, contracts covering cotton production from over 9,000 acres in this one county. Allenberg's total 1971 purchases of cotton grown in Mississippi under substantially identical contracts exceeded 25,000 bales. When cotton grown under these contracts arrived at Mississippi warehouses designated by Allenberg the cotton was compressed and sorted by warehousemen acting at Allenberg's direction. It was then stored at the warehouse as a part of a perpetual revolving inventory of cotton, maintained by Allenberg at cotton, concentration points throughout Mississippi to await future shipping orders.1
34
For reasons which are not entirely clear to me, the Court holds that Mississippi may not require Allenberg to quality as a foreign corporation as a condition of using Mississippi courts to enforce its contract with appellee Pittman.2
35
The Court says: Delivery of the cotton to a warehouse, taken in isolation, is an intrastate transaction. But that delivery is also essential for the completion of the interstate transaction, for sorting and classification in the warehouse are essential before the precise interstate destination of the cotton, whether in this country or abroad, is determined.' Ante, at 30. Yet in Parker v. Brown, 317 U.S. 341, 361, 63 S.Ct. 307, 318, 87 L.Ed. 315 (1943), this Court stated that 'no case has gone so far as to hold that a state could not license or otherwise regulate the sale of articles within the state because the buyer, after processing and packing them, will, in the normal course of business, sell and ship them in interstate commerce.' But putting aside such uncertainties engendered by the Court's language, its holding seems to me quite inconsistent with our previous cases applying the Commerce Clause to this kind of factual situation.
36
The most recent case from this Court dealing with this question is Eli Lilly & Co. v. Sav-On-Drugs, 366 U.S. 276, 81 S.Ct. 1316, 6 L.Ed.2d 288 (1961), where the Court said:
37
'(I)f Lilly is engaged in intrastate as well as interstate aspects of the New Jersey drug business, the State can require it to get a certificate of authority to do business. In such a situation, Lilly could not escape state regulation merely because it is also engaged in interstate commerce.' Id., at 279, 81 S.Ct. 1316, 1318, 6 L.Ed.2d 288 (footnote omitted).
38
In Lilly, the facts supporting a 'corporate presence' in New Jersey were probably stronger than the facts supporting a conclusion that Allenberg was 'doing business' in Mississippi in this case. But it is of some imporatnce to note that the intrastate contacts between Lilly and New Jersey had no apparent connection with the suit which Lilly sought to bring against Sav-On-Drugs; the Court held that there were sufficient intrastate activities of Lilly so that it could be required generall to qualify to do business in New Jersey, rather than that Lilly's business was Sav-On was intrastate. Here the very dealing of Allenberg which are concededly intrastate are the dealings between it and Pittman revolving around the contract upon which it seeks to sue in the Mississippi courts.
39
But even if I were able to agree with the Court that Allenberg's activities in Mississippi were purely 'interstate,' I do not believe that our cases, properly understood, prevent Mississippi from exacting qualification from a foreign corporation as a condiction for use of the Mississippi courts.
40
It has been settled since Mr. Chief Justice Taney's opinion for the Court in Bank of Augusta v. Earle, 13 Pet. 519, 10 L.Ed. 274 (1839), that a corporation organized in one State which seeks to do business in another State may be required by the latter to qualify under its laws before doing such business. An exception to this general rule was established in cases such as Crutcher v. Kentucky, 141 U.S. 47, 11 S.Ct. 851, 35 L.Ed. 649 (1891), in which the Court held that such a license might not be required of an express company engaged only in interstate commerce. Id., at 56 57, 11 S.Ct. 851, 853, 35 L.Ed. 649. That exception was subsequently applied in International Text-Book Co. v. Pigg, 217 U.S. 91, 30 S.Ct. 481, 54 L.Ed. 678 (1910), and expanded in Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 42 S.Ct. 106, 66 L.Ed. 239 (1921), and Shafer v. Farmers' Grain Co., 268 U.S. 189, 45 S.Ct. 481, 69 L.Ed. 909 (1925).
41
The Court today excerpts a paragraph from Shafer dealing with wheat, and cites it for the apparent proposition that trading in agricultural commodities, whether wheat or cotton, is a form of interstate commerce which may not be regulated by the States. But Shafer invalidated, not a statute requiring a foreign corporation to qualify to do business before using the courts, but instead a comprehensive statutory scheme regulating the method by which grain might be sold. The Court in its opinion in Shafer was careful to distinguish other situations in which state regulation of trade in agricultural commodities which concededly went across state lines had been upheld. Id., at 201—202, 45 S.Ct. 481, 486, 69 L.Ed. 909.
42
Dahnke-Walker Milling Co., supra, did deal with a statute requiring foreign corporations to qualify, and the Court held the state statute could not be applied consistently with the Commerce Clause, but its reasoning in reaching this conclusion in no way supports the result the Court reaches today.
43
'This contract was made in continuance of that practice the plaintiff intending to forward the grain to its mill as soon as the delivery was made. In keeping with that purpose the delivery was to be on board the cars of a public carrier. Applying to these facts the principles before stated, we think the transaction was in interstate commerce. The state court, stressing the fact that the contract was made in Kentucky and was to be performed there, put aside the further facts that the delivery was to be on board the cars and that the plaintiff, in continuance of its prior practice, was purchasing the grain for shipment to its mill in Tennessee. We think the facts so neglected had a material bearing and should have been considered. They show that what otherwise seemed an intrastate transaction was a part of interstate commerce.' 257 U.S., at 292, 42 S.Ct. 106, 109, 66 L.Ed. 239 (Emphasis added.)
44
Here, unlike the situation which the Dahnke-Walker Court regarded as critical there, Allenberg chose to store cotton owned by it in Mississippi warenhouses for varying lengths of time in order that it might have a perpetual revolving inventory of cotton available for future shipment orders. Here, too, Allenberg had contracted with Mississippi farmers, including Pittman, to grow the cotton from seed.
45
Cases such as Shafer, supra, and Dahnke-Walker, supra, were decided during a period of this Court's hitory when the approved judicial technique 'was to decide whether a subject was or was not interstate commerce; if it was, Congress alone could regulate it, and if not, only the states could.'3 This doctrine of mutual exclusivity was largely dispelled in later cases beginning with South Carolina Highway Dept. v. Barnwell Bros., 303 U.S. 177, 58 S.Ct. 510, 82 L.Ed. 734 (1938), and followed in a long line of succeeding cases.4 The rule stated by the Court in Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970), is quite different from that found in cases such as Shafer and Dahnke-Walker:
46
'Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.'
47
In Union Brokerage Co. v. Jensen, 322 U.S. 202, 64 S.Ct. 967, 88 L.Ed. 1227 (1944),5 this Court upheld Minnesota's denial of access to its courts to a North Dakota customhouse broker, whose sole business in Minnesota was interstate commerce, where the broker had failed to qualify as required of such foreign corporations:
48
'(T)he Commerce Clause does not cut the States off from all legislative relation to foreign and interstate commerce. South Carolina Hwy. Dept. v. Barnwell Bros., 303 U.S. 177, 58 S.Ct. 510, 82 L.Ed.2d 734 . . .. The incidence of the particular state enactment must determine whether it has transgressed the power left to the States to protect their special state interests although it is related to a phase of a more extensive commercial process.' Id., at 209—210, 64 S.Ct. at 972. See Parker v. Brown, 317 U.S. 341, 361, 63 S.Ct. 307, 318 (1942).
49
Mississippi's qualification statute is concededly not discriminatory. Domestic corporations organized under her laws must submit themselves to her taxing jurisdiction, to service of process within the State, and to a number of other incidents of corporate existence which state law may impose. Union Brokerage recognized that qualification statutes were important in the collection of state taxes by identifying foreign corporations operation within the State6 and in the protection of citizens within the State through insuring ready susceptibility of the corporation to service of process.7 The qualification statute also serves an important informational function making available to citizens of the State who may deal with the foreign corporation details of its financing and control.8 Although the result of Allenberg's failure to comply with the qualification statute is a drastic one,9 our decisions hold that the burden imposed on interstate commerce by such statutes is to be judged with reference to the measures required to comply with such legislation, and not to the sanctions imposed for violation of it. Eli Lilly, 366 U.S., at 282—283, 81 S.Ct., at 1320; Railway Express Agency v. Virginia, 282 U.S. 440, 444, 51 S.Ct. 201, 75 L.Ed. 450 (1931). The steps necessary in order to comply with this statute are not unreasonably burdensome.10
50
I would not expand the holdings of Shafer and Dahnke-Walker in the face of so substantial a body of subsequent case law which leaves their reasoning, if not their holdings, suspect. I would affirm the judgment of the Supreme Court of Mississippi.
1
Mississippi Code Ann. § 79—3—247 (1972), formerly Miss.Code Ann. § 5309—239 (1942), provides in part:
'No foreign corporation transacting business in this state without a certificate of authority shall be permitted to maintain any action, suit or proceeding in any court of this state. Nor shall any action, suit or proceeding be maintained in any court of this state by any successor or assignee of such corporation on any right, claim or demand arising out of the transaction of business by such corporation in this state.'
2
See International Steel & Iron Co. v. National Surety Co., 297 U.S. 657, 661—662, 56 S.Ct. 619, 621—622, 80 L.Ed. 961 (1936). As stated in Herb v. Pitcairn, 324 U.S. 117, 127, 65 S.Ct. 459, 464, 89 L.Ed. 789 (1945): 'The practice has become common by which some state courts, such as the New York Court of Appeals, provide counsel on motion with a certificate of the court or of the Chief Judge that a stated federal question was presented and necessarily passed upon if such was the case. See, e.g., cases cited in Robertson and Kirkham, Jurisdiction of the Supreme Court, § 75.'
In Whitney v. California, 274 U.S. 357, 360—362, 47 S.Ct. 641, 643, 71 L.Ed. 1095 (1927), while the record did not show that the party raised or that the state court considered 'any Federal question whatever,' a supplemental order entered by the state court after the case had reached this Court, setting forth the federal question raised and decided by the state court, was given the same effect 'as would be done if the statement had been made in the opinion of that court when delivered.'
In cases where the certificate (Honeyman v. Hanan, 300 U.S. 14, 57 S.Ct. 350, 81 L.Ed. 476 (1937)) or supplemental opinion by one member of the state court (Charleston Federal Savings & Loan Assn. v. Alderson, 324 U.S. 182, 65 S.Ct. 624, 89 L.Ed. 857 (1945)) has been held to be insufficient, there were lingering doubts as to whether the precise federal question was necessarily decided. Here we have no remaining doubts.
3
The latter practice seems to have been the more usual one. (App. 54, 102—105.)
4
The commission was paid in some instances by appellant, in other instances by the individual farmer. (Id., at 53, 68.)
5
A. B. Cox, Cotton—Demand, Supply, Merchandising 4—5 (1953); A. Garside, Cotton Goes to Market 66—67 (1935).
6
For a more detailed description of the classification process, see Cox, supra, n. 5, at 131—147; Garside, supra, n. 5, at 46—85.
7
See Cox, supra, n. 5, at 4—5, 233—236. Virtually all cotton grown in Mississippi is shipped out of state, since there is no significant milling activity in Mississippi. U.S.Dept. of Agriculture (USDA), Statistical Bulletin No. 417—Statistics on Cotton and Related Data, 1930—1967, pp. 58, 77 (Supp.1972).
8
See Cone Mills Corp. v. Hurdle, 369 F.Supp. 426, 430 (ND Miss.1974); Cox, supra, n. 5, at 10. Government figures showed 32% of the 1972 crop and at least 45% of the 1973 crop being 'forward' contracted. USDA, August 1973 Crop Production A—6; USDA, Cotton Situation (CS—265) p. 6 (Apr. 1974). Of course, there is always the possibility that the price will increase rather than decrease; such in fact that the case during 1971. Under these circumstances, the forward contract becomes relatively unprofitable, since the farmer is obligated to deliver his cotton for a lower price than it would bring on the spot market. This situation may generate a strong economic incentive for him to breach his contract and sell the cotton elsewhere.
9
App. 79, 96. Cf. n. 7, supra.
10
The New York Cotton Exchange is a designated contract market under the Commodity Exchange Act, 42 Stat. 998, 49 Stat. 1491, 7 U.S.C. § 1 et seq. For a more detailed discussion of the hedging mechanism, see Cox, supra, n. 5, at 303—315; Garside, supra, n. 5, at 206—226, 377-382; Volkart Bros., Inc. v. Freeman, 311 F.2d 52, 54—56 (CA5 1962); and see the discussion of the wheat futures market quoted in the text, this page and 28—29.
11
The merchant's ability to secure financing will also depend on the extent to which banks and other sources of credit perceive these contracts as being reliable. In some situations, up to 90% of the cost of the raw cotton may be financed by borrowing against futures contracts and warehouse receipts as collateral, since a viable hedging system drastically reduces the risk to both merchants and lenders. See Cox, supra, n. 5, at 181.
12
One of appellant's Memphis employees, Jerry Hill, came to Mississippi on two or three occasions to deliver contracts to the broker, Covington. The more usual practice however, appears to have been for the contracts to be mailed. (App. 56—57, 66—67, 72 76.)
13
Id., 60—61, 65—66, 106—107. See also n. 4, supra.
1
App., at 92; Brief for Appellant, at 11. The record does not disclose the turnover time of the inventory but this is not material in light of Allenberg's acmission that it maintains perpetual inventories in Mississippi.
2
In its concluding paragraph the Court states: 'We hold only that Mississippi's refusal to honor and enforce contracts made for interstate or foreign commerce is repugnant to the Commerce Clause.' The Court offers no definition or analysis as to why this particular contract was 'made for interstate or foreign commerce,' and the language is traceable to none of our previous cases dealing with the Commerce Clause.
3
Stern, The Commerce Clause and the National Economy, 1933-1946, 59 Harv.L.Rev. 645, 648 (1946). See also P. Benson, The Supreme Court and the Commerce Clause, 1937—1970 (1970).
4
In addition to Shafer v. Farmers Grain Co., 268 U.S. 189, 45 S.Ct. 481, 69 L.Ed. 909 (1925), and Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 42 S.Ct. 106, 66 L.Ed. 239 (1921), the Court today relies on Swife & Co. v. United States, 196 U.S. 375, 25 S.Ct. 276, 49 L.Ed. 518 (1905); Stafford v. Wallace, 258 U.S. 495, 42 S.Ct. 397, 66 L.Ed. 735 (1922); and Chicago Board of Trade v. Olsen, 262 U.S. 1, 43 S.Ct. 470, 67 L.Ed. 839 (1923). These cases upheld federal regulatory legislation applied to commodities exchanges as justified by the commerce power. Unless the Court today takes a giant step backwards, these are not relevant to the question of the constitutionality of Mississippi's statute. See, e.g., Di Santo v. Pennsylvania, 273 U.S. 34, 37, 47 S.Ct. 267, 71 L.Ed. 524 (1927) (Brandeis, J., joined by Homes, J., dissenting), a case later overruled in California v. Thompson, 313 U.S. 109, 116, 61 S.Ct. 930, 933, 85 L.Ed. 1219 (1941).
5
The Court distinguishes Union Brokerage on the ground that the activities of the broker there were 'localized' interstate commerce, but a comparison of the facts of that case with the facts here suggests that Allenberg's activities in Mississippi were every bit as 'localized' as those of Union Brokerage in Minnesota.
6
Most commentators studying qualification statutes have concluded that a major purpose of such statutes is facilitation of the assessment and collection of state ad valorem and franchise taxes. See, e.g., Comment, Foreign Corporations-State Boundaries for National Business, 59 Yale L.J. 737, 746 (1950). Cases such as Chassaniol v. Greenwood, 291 U.S. 584, 54 S.Ct. 541, 78 L.Ed. 1004 (1934); Federal Compress Co. v. McLean, 291 U.S. 17, 54 S.Ct. 267, 78 L.Ed. 622 (1934), and Kosydar v. National Cash Register Co., 417 U.S. 62, 94 S.Ct. 2108, 40 L.Ed.2d 660 (1974), make it clear that the cotton stored in Mississippi is subject to state taxation. Mississippi Code Ann. § 27—13—7 (1972) imposes a franchise tax on foreign corporations operating within the State measured by the amount of capital located in Mississippi. A portion of the information required to be filed with the Mississippi Secretary of State in order to qualify within the State is an estimate of capital located within Mississippi. The information is essential to the identification of foreign corporations subject to the tax. The Court today leaves the tax standing but illogically deprives Mississippi of its sole means of enforcement of the tax.
7
Although it may be possible to assert jurisdiction over an unqualified foreign corporation doing business in the State under a long-arm statute since minimum contracts with the State will normally exist, the absence of a registered agent in the State creates substantial problems for any potential plaintiff since he will be required to prove the existence of such minimum contracts often in the absence of any subpoena power over the foreign corporation. See, e.g., Note, The Supreme Court, 1960 Term, 75 Harv.L.Rev. 40, 138, 140 (1961). In this area such qualification statutes provide a rough form of reciprocity (a guarantee of susceptibility of suit in exchange for the right to bring suit) and operate as security for performance of the foreign corporation's obligations owed to citizens of the State. Cf. Paul v. Virginia, 8 Wall. 168, 181, 19 L.Ed. 357 (1869). See, e.g., Comment, supra, n. 6, 59 Yale L.J., at 742—745.
8
See, e.g., Comment, The Lilly Case: Dictum, Holding, and Finding, 57 Nw.U.L.Rev. 306, 321 (1962). While state and federal securities laws may on occasion provide parallel disclosures, they will often not. For example, in the immediate case, there is no indication that Allenberg was subject to any disclosure requirements other than those provided by the qualification statute. Mississippi requires such foreign corporations to update information in their certificates through annual reports. Miss.Code Ann. § 79—3—249 (1972). This information is available to all citizens of the State through payment of a nominal fee to the Secretary of State's office. § 79—3—257. Information such as the financial structure and control of the foreign corporation is obviously highly relevant to any citizen of Mississippi who is considering doing business with the corporation.
9
The large variety of possible sanctions imposed by the States was discussed at length in Note, Sanctions for Failure to Comply with Corporate Qualifications Statutes: An Evaluation, 63 Col.L.Rev. 117, 122—123 (1963). 'Because of the difficulties involved in discovery and enforcement by state officials, denial of access to state courts is an essential element of a statutory scheme designed to encourage compliance with qualification requirements.' Id., at 129—130 (footnote omitted). The denial-of-a-forum sanction utilized by Mississippi is also used by five other States. Ala.Code, Tit. 10, § 21(89) (1973 Cum.Supp.; Ariz.Rev.Stat.Ann. § 10—482 (1956); Ark.Stat.Ann. § 64—1202 (1966); Vt.Stat.Ann., Tit. 11, § 2120 (1973). The rule is applied in Montana by case law. Note, Right of a Foreign Corporation to Sue upon Contracts in Montana Courts—Doing Business-Failure to Qualify-Subsequent Qualification, 26 Mont.L.Rev. 218 (1965). There may certainly be a dispute as to the wisdom of Mississippi's choice of this sanction but unless substantive due process now clothed in Commerce Clause garb once more elevates the Court into an arbiter of legislative wisdom, this consideration is irrelevant to our disposition of the case.
10
The principal requirements are the filing of certain information with the Mississippi Secretary of State and the payment of a fee ranging between $20 and $500 depending on the amount of stated capital of the foreign corporation. Miss.Code Ann. §§ 79—3—219 and 79—3—255(q)(1972). When the required information is provided and the fee is paid, the Secretary of State issues the requested certificate. § 79—3—221. The burden of qualifying appears small, particularly when compared to Allenberg's activities in the State. See Union Brokerage Co., v. Jensen, 322 U.S. 202, 210, 64 S.Ct. 967, 972, 88 L.Ed. 1227 (1944).
| 910
|
419 U.S. 59
95 S.Ct. 257
42 L.Ed.2d 226
Frank Xavier FRANCISCO, Petitioner,v.J. S. GATHRIGHT, Superintendent, Bland Correctional Farm.
No. 73—5768.
Argued Oct. 15, 1974.
Decided Nov. 19, 1974.
Daniel C. Kaufman, Springfield, Va., for petitioner; and Robert E. Shepherd, Jr., Richmond, Va., for respondent.
PER CURIAM.
1
Petitioner was convicted in a Virginia state court of possession of heroin with intent to distribute,1 and was sentenced to eight years in prison. The Supreme Court of Virginia denied review and affirmed the conviction by order, and petitioner then sought federal habeas corpus in the United States District Court for the Eastern District of Virginia.
2
In that court he contended that the judgment of conviction under which he was held was subject to two constitutional infirmities. His first claim was that the state statute under which he had been convicted violated his Fourteenth Amendment rights insofar as it permitted the jury to base the conviction 'solely upon evidence as to the quantity of any controlled drug or drugs unlawfully possessed.'2 His second claim was that evidence admitted at his trial had been obtained as a result of an unlawful search and seizure in violation of his rights under the Fourth and Fourteenth Amendments.
3
Respondent conceded that petitioner had 'exhausted his State court remedies,' App. 11, but revertheless urged the District Court to dismiss the petition in order to permit the petitioner to present his due process argument to the state courts for reconsideration in light of the decision of the Supreme Court of Virginia in Sharp v. Commonwealth, 213 Va. 269, 192 S.E.2d 217 (1972). In Sharp, which was decided after the Virginia Supreme Court had declined to review petitioner's conviction on direct appeal, but before he had filed his petition for a writ of habeas corpus in the District Court,3 the Virginia Supreme Court held § 54—524.101(a) to be violative of both the State and Federal Constitutions.4
4
The District Court ruled against petitioner on the merits of his search-and-seizure claim, and agreed with respondent that the challenge to the statute should be resubmitted to the Virginia state courts. It therefore granted summary judgment in favor of respondent without passing on petitioner's claim that the statute was invalid under the Fourteenth Amendment.5
5
Petitioner appealed to the Court of Appeals for the Fourth Circuit. That court, in an unreported decision, agreed that the state court should have an opportunity to re-examine petitioner's claim in the light of Sharp, supra, and went on to hold that the District Court had acted prematurely in reaching the independent federal claim of unlawful search and seizure. It said:
6
'If relief is granted under Sharp, the state will have the option of releasing Francisco or retrying him. In either event the possibility exists that this claim for relief will be mooted.' App. 51.
7
The court vacated that portion of the District Court's opinion ruling on the merits of petitioner's second claim, and remanded the case to the District Court with instructions to dismiss the petition without prejudice. We granted certiorari. 415 U.S. 957, 94 S.Ct. 1484, 39 L.Ed.2d 571 (1974).
8
Petitioner presents two contentions here. He first contends that the District Court and the Court of Appeals were wrong in requiring him to resubmit his constitutional attack on the Virginia statute to the state courts. We agree with petitioner on this point, since we believe that the proper disposition of his claim of statutory invalidity is controlled by Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967).
9
In Roberts the petitioner was denied a transcript of his preliminary hearing because he was unable to pay the fee required under New York law. When his equal protection challenge to the New York statute was rejected on direct appeal, he sought habeas relief in federal court. After the United States District Court denied the writ, in another case the New York Court of Appeals found the statute unconstitutional under both the Federal and State Constitutions. The Court of Appeals for the Second Circuit dismissed the petition in order to permit Roberts to apply to the state courts for relief under the intervening state court decision. This Court reversed, saying:
10
'Petitioner has already thoroughly exhausted his state remedies, as the Court of Appeals recognized. Still more state litigation would be both unnecessarily time-consuming and otherwise burdensome. This is not a case in which there is any substantial state interest in ruling once again on petitioner's case.' Id., at 43, 88 S.Ct., at 196.
11
The only distinction between the present case and Roberts is that here the intervening state court decision came down before petitioner filed his petition for habeas relief in federal court, whereas in Roberts the state decision issued after the habeas petition had been acted upon by the District Court. This distinction does not alter the result as to the exhaustion requirement. In both cases the state courts had a full opportunity to determine the federal constitutional issues before resort was made to a federal forum, and the policies served by the exhaustion requirement would not be furthered by requiring resubmission of the claims to the state courts.6 Roberts, supra; Brown v. Allen, 344 U.S. 443, 447—450, 73 S.Ct. 397, 402—404, 97 L.Ed. 469 (1953); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971).
12
The second question presented by petitioner in this Court is '(w)hether a person . . . who claims that (his) custody is, in two independent respects, in violation of the Constitution of the United States, must await federal habeas corpus relief on one ground merely because the other ground should have been presented to the State courts.' Petitioner apparently attributes the refusal of the Court of Appeals to rule on the merits of his second claim to its conclusion that petitioner was required again to submit his first claim to the state courts. Since we have held that petitioner's claim of statutory invalidity need not be presented again to the state courts before being adjudicated by the federal habeas court, the case in its present posture no longer presents the question framed by petitioner, and we have no occasion to address it.
13
The judgment of the Court of Appeals is reversed, and the cause is remanded for proceedings consistent with this opinion.
14
Reversed and remanded.
1
Petitioner was convicted of violating Va.Code Ann. § 54 524.101(a) (1950). At the time he was charged, that statute provided in relevant part: 'Except as authorized by this chapter, it shall be unlawful for any person knowingly or intentionally: (1) To distribute, or to possess with intent to distribute, a controlled drug . . .. A conviction for a violation of this § 54 524.101(a) may be based solely upon evidence as to the quantity of any controlled drug or drugs unlawfully possessed.'
The statute has since been repealed. Va. Acts 1972, c. 798.
2
The trial court instructed the jury:
'The Court instructs the jury that a conviction for possession of a controlled drug with intent to distribute may be based solely upon the evidence as to the quantity of the controlled drug unlawfully possessed.' App. 19.
3
The habeas petition, accompanied by a motion to proceed in forma pauperis, was actually received by the United States District Court on October 5, 1972, four days before Sharp was decided. On October 26 petitioner's motion to proceed in forma pauperis was denied. Upon receipt of the filing fee on October 31, the clerk of the United States District Court filed the habeas petition.
4
The Supreme Court of Virginia found the statute unconstitutionally vague because 'a person of ordinary intelligence in possession of a quantity of marijuana could not with reasonable certainty know whether he was guilty of the misdemeanor of mere possession or the felony of possession with intent to distribute.' 213 Va., at 271, 192 S.E.2d, at 218. The court also concluded that the 'statutory inference or presumption of possession with intent to distribute did not have sufficient rational connection with the fact of possession of a quantity of a controlled drug.' Ibid. The Virginia court cited federal and state decisions to support its holding, and at oral argument the parties agreed that Sharp rests on both state and federal constitutional grounds. We, of course, express no view on the correctness of this holding insofar as it rests on an interpretation of the Fourteenth Amendment.
5
Since petitioner had presented the issue once to the state courts, the District Court granted him leave to reinstitute the petition in federal court unless the State granted him a hearing within 45 days. The State sought to initiate state habeas proceedings the following day, but petitioner refused to file a habeas petition in state court and indicated that he would not cooperate with state authorities.
6
We are not presented with a case 'in which an intervening change in federal law cast the legal issue in a fundamentally different light.' Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971).
| 01
|
42 L.Ed.2d 231
95 S.Ct. 272
419 U.S. 65
William B. SAXBE, Attorney General, et al., Petitioners,v.Robert BUSTOS et al. Cristobal CARDONA et al., Petitioners, v. William B. SAXBE, Attorney General, et al.
Nos. 73—300, 73—480.
Argued Oct. 17, 1974.
Decided Nov. 25, 1974.
Syllabus
Some aliens who live in Mexico and Canada commute to work in the United States. The Immigration and Naturalization Service has approved this practice with respect to both daily and seasonal commuters, and has classified such aliens as immigrants 'lawfully admitted for permanent residence' who are 'returning from a temporary visit abroad,' a category of 'special immigrant' defined by the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(27)(B). Those with that classification have freedom from usual documentation and numerical requirements and from the labor certification requirements of 8 U.S.C. § 1182(a)(14). Certain farmworkers and a collective-bargaining agent for farmworkers brought this suit for declaratory and injunctive relief against the practice of thus classifying such alien commuters. The District Court dismissed the action. The Court of Appeals upheld the classification as to daily commuters but rejected it as to seasonal commuters. Held: Alien commuters are immigrants who are 'lawfully admitted for permanent residence,' and are 'returning from a temporary visit abroad' when they enter the United States, and this 'special immigrant' classification is applicable to both daily and seasonal commuters. This has long been the administrative construction of the statute in the context of alien commuters, a factor which must be accorded great weight when, as here, congress has considered the subject and has not seen fit to alter the administrative practice. Pp. 69—80. 156 U.S.App.D.C. 304, 481 F.2d 479, affirmed in part and reversed in part.
Mark L. Evans, Washington, D.C., for William Saxbe and others.
Bruce J. Terris, Washington, D.C., for Robert Bustos, Cristobal Cardona and others.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
Some aliens who have their homes in Canada or Mexico commute daily to places of employment in this country and others do so on a seasonal basis, a practice permitted by the Immigration and Naturalization Service. The question is whether the practice on the facts of these cases conforms with the Immigration and Nationality Act. It turns on the meaning of § 101(a)(27)(B), 66 Stat. 169, as amended, 79 Stat. 916, 8 U.S.C. § 1101(a)(27)(B), which defines as one variety of 'special immigrant' an immigrant 'lawfully admitted for permanent residence, who is 'returning from a temporary visit abroad.'
2
Those who qualify under § 1101(a)(27)(B) may be permitted entry without the usual documentation requirements. 8 U.S.C. § 1881(b). The regulations1 implement § 1181(b) by allowing such an immigrant to use an alien registration receipt card, normally called a 'green card,' in lieu of an immigrant visa and without regard to numerical limitations2 if he is 'returning to an unrelinquished lawful permanent residence in the United States after a temporary absence abroad not exceeding 1 year.'
3
The Act presumes that an alien is an immigrant 'until he establishes . . . that he is entitled to a nonimmigrant status';3 and it defines 'immigrant' as every alien who cannot bring himself into an enumerated class of nonimmigrants.4 One class of nonimmigrants5 is 'an alien having a residence in a foreign country which he has no intention of abandoning . . . (ii) who is coming temporarily to the United States to perform temporary services or labor, if unemployed persons capable of performing such service or labor cannot be found in this country.'
4
An alien does not qualify as a nonimmigrant under this class of nonimmigrants if he seeks to perform temporary labor at a time when unemployed persons capable of performing that labor can be found in this country.6 If he cannot qualify as a nonimmigrant some other way, such an alien is subject to the Act's numerical limitations, unless he is included in the classes of 'immediate relatives' of a United States citizen or 'special immigrants.'7 On the other hand, as already noted, one variety of 'special immigrant' is an alien 'lawfully admitted for permanent residence, who is returning from a temporary visit abroad.'8 One who so qualifies is excluded from the labor certification provisions in 8 U.S.C. § 1182(a)(14).9 The term 'lawfully admitted for permanent residence' is defined as 'the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant . . . such status not having changed.'10 An alien achieves that status in the first instance by complying with any applicable numerical limitations and with the Act's other requirements for admission, details not important here. After his initial admission on that basis, he is free to leave this country temporarily and to re-enter without regard to numerical limitations. The Act authorizes the Attorney General to re-admit such an alien without a visa or other formal documentation. 8 U.S.C. § 1181(b). He has exercised that authority, allowing such an immigrant to return with what was called in the briefs and oral argument as the 'green card.'
5
This suit was brought by the United Farm Workers Organizing Committee11 for declaratory and injunctive relief against the practice of giving alien commuters the documentation and labor certification benefits of classification as immigrants 'lawfully admitted for permanent residence' who are 'returning from a temporary visit abroad.'12 The District Court dismissed the action without opinion. The Court of Appeals held that the admission of daily commuters was proper but that the admission of seasonal commuters was not, 156 U.S.App.D.C. 304, 481 F.2d 479 (1973). We granted the petition and cross-petition in light of a conflict between the decision below and that of the Court of Appeals for the Ninth Circuit in Gooch v. Clark, 433 F.2d 74 (1970).
6
Our conclusions are that commuters are immigrants, that they are 'lawfully admitted for permanent residence,' and that they are 'returning from a temporary visit abroad' when they enter the United States. Moreover, the wording and legislative history of the statute and the long administrative construction indicate that the same treatment is appropriate for both daily and seasonal commuters. Commuters are thus different from those groups of aliens who can be admitted only on certification by the Secretary of Labor that unemployed persons cannot be found in this country and that the employment of the aliens 'will not adversely affect the wages and working conditions of the workers in the United States.' 8 U.S.C. § 1182(a)(14). We thus agree with the conclusion of the Ninth Circuit in Gooch. Accordingly, we affirm the judgment now before us as respects daily commuters and reverse it as respects seasonal commuters.
7
A main reliance of plaintiffs is on the provision of the Act13 which in the much-discussed subsection (15)(H)(ii) provides that one category of alien nonimmigrant is 'an alien having a residence in a foreign country which he has no intention of abandoning . . . (ii) who is coming temporarily to the United States to perform temporary services or labor, if unemployed persons capable of performing such service or labor cannot be found in this country.' Under the argument tendered, these alien commuters partially meet the definition of nonimmigrants in subsection (15)(H)(ii) in that they have a foreign residence which they do not intend to abandon and come here temporarily to perform temporary service, but fail to satisfy subsection (15)(H)(ii) completely in that they do not show that unemployed people capable of performing the services cannot be found in this Nation. That should invoke the presumption in the Act, already noted, that an alien is an immigrant until or unless he proves he is a nonimmigrant.14
8
We agree, moreover, with the Ninth Circuit that this provision 'was intended to confer nonimmigrant status on certain aliens who were needed in the American labor force but who, unlike commuters, would be unable to achieve admittance under immigrant status.' 433 F.2d, at 78. The administrative construction of this subsection (15)(H)(ii) by the Immigration Service15 has been that it does not cover an alien, like the commuter, who has a 'permanent residence' here and who comes to perform a job of a permanent character, even though the period of his service is limited. To repeat, the Act provides that '(e)very alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer . . . and the immigration officers . . . that he is entitled to a nonimmigrant status under section 1101(a)(15).'16 Before an alien can be classified as a nonimmigrant under subsection (15)(H)(ii) his prospective employer must submit a petition on his behalf under 8 U.S.C. § 1184(c); and after the INS approves the petition, the alien must apply for nonimmigrant status and demonstrate that he in fact qualifies for that status.17
9
We conclude that commuters are not nonimmigrants under subsection (15)(H) (ii). None of the other categories of nonimmigrants are applicable, and thus under § 1184(b) the commuters are immigrants.
10
The fact that an alien commuter who has not shown he must be classified as a nonimmigrant must be classified as an immigrant is not the end of our problem. The question remains whether he may properly be treated as one who is in the group defined as 'special immigrants' under subsection (27)(B),18 that is, whether commuters are 'lawfully admitted for permanent residence' when they have no actual residence in this country.
11
Section 1101(a)(20) defines 'lawfully admitted for permanent residence' as 'the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed' (italics added). The definition makes the phrase descriptive of a status or privilege which need not be reduced to a permanent residence to be satisfied, so long as that status has not changed.
12
One argument of the plaintiffs is that the status has changed because residence in this country was never claimed. But we read the Act as did the Ninth Circuit in the Gooch case to mean that the change in status which Congress had in mind was a change from an immigrant lawfully admitted for permanent residence to the status of a nonimmigrant pursuant to 8 U.S.C. § 1257. 433 F.2d, at 79.
13
The status referred to in § 1101(a)(20) is acquired when an alien satisfies (1) any numerical limitations on the entry of immigrants,19 (2) requirements as to qualitative matters such as health, morals, and economic status,20 and (3) the need for an immigrant visa.21 The applicant must also state whether he plans to remain in the United States permanently.22 But the Act does not declare or suggest that the status will be denied him, if he does not intend to reside permanently here. As we read the Act, the 'status' acquired carries several important privileges: He may remain in the United States indefinitely; he is free to work in this country; he may return to this country after a temporary absence abroad; and he has the privilege of establishing a permanent residence in the United States.
14
Thus we conclude that commuters are immigrants 'lawfully admitted for permanent residence.' As did both the majority and dissent in Gooch, we also find that commuters can be viewed as 'returning from a temporary visit abroad.' 433 F.2d, at 79—81, 82 n. 1. The Court below so agreed as respects daily commuters, disagreeing only as to seasonal commuters. Neither the court below nor the Court of Appeals in Gooch took the position now taken in dissent here.
15
Our conclusion reflects the administrative practice, dating back at least to 1927 when the Bureau of Immigration was a part of the Department of Labor.23 In 1940 the Bureau was transferred to the Department of Justice24 where it remains today. On April 1, 1927, it issued General Order No. 86.25 Under the order, commuters were required to gain admission as immigrants before they could have border crossing privileges. The order provides that '(a)liens who have complied with the requirements of this General Order governing permanent admission will be considered as having entered for permanent residence.' 'Thus,' said the Court of Appeals in the instant cases, 'the daily commuter was born,' 156 U.S.App.D.C., at 304, 481 F.2d, at 485.
16
This longstanding administrative construction is entitled to great weight, particularly when, as here, congress has revisited the Act and left the practice untouched. Such a history of administrative construction and congressional acquiescence may add a gloss or gualification to what is on its face unqualified statutory language. Massachusetts Trustees v. United States, 377 U.S. 235, 84 S.Ct. 1236, 12 L.Ed.2d 268 (1964); United States v. Midwest Oil Co., 236 U.S. 459, 35 S.Ct. 309, 59 L.Ed. 673 (1915). As the defendants below acknowledge, the meaning of the phrase 'lawfully admitted for permanent residence' in § 1101(a)(27)(B) may not be identical to the meaning of the same language in other sections of the Act where the same history of administrative construction is not present.
17
We see no difference in the treatment of daily commuters and seasonal commuters. The status of the seasonal commuter is the same as the status of the daily commuter because the identical statutory words cover each. The Court of Appeals, however, rested essentially on a different legislative history of seasonal commuters than had obtained in cases of daily commuters.
18
Prior to 1917 there were essentially no limitations on the practice of commuting from Mexico or Canada to the United States. Legislation was passed in 1917, 1921, and 1924.26 But under those statutes commuters remained able freely to cross the border subject only to qualitative restrictions in the 1917 Act.
19
As already noted, the administrative approach changed in 1927 when the Bureau of Immigration issued its General Order No. 86. While the 1952 Act, 66 Stat. 163, made no mention of commuters and while the 1965 amendments of the 1952 Act, 79 Stat. 911, were likewise silent as respects commuters, the Court of Appeals assumed that the longstanding practice of allowing daily commuters was not repealed sub silentio; and we agree. The Court of Appeals, however, took quite a different view of the seasonal commuter problem because of its different history.
20
The seasonal commuter problem dates back at least to 1943 when this Government and Mexico agreed to the seasonal importation of Mexican agricultural workers. 56 Stat. 1759. Congress legislated on the problem in 1951,27 requiring farmers in this Nation to make reasonable efforts to attract domestic workers prior to certification by the Secretary of Labor of the need for foreign labor. That was known as the bracero program and the Court of Appeals called the seasonal commuter merely a new name for the former bracero. That is quite inaccurate. The braceros were at the start nonimmigrants; the seasonal commuters were immigrants. Some braceros, indeed quite a few, H.R.Rep.No. 722, 88th Cong., 1st Sess., 7 (1963) acquired permanent residence status. The seasonal commuter, like the daily commuter, has always been in that category.
21
In 1964 the bracero type of seasonal program lapsed; and the next year Congress amended the Immigration and Nationality Act by making stricter the certification by the Secretary of Labor of the need for foreign labor and requiring findings on the lack of any adverse effect of the employment of aliens on the wages and working conditions of workers in this country.
22
But that provision, which we have quoted,28 does not apply to aliens lawfully admitted for permanent residence returning from a temporary visit abroad and to certain close relatives. An alien who first sought admission after the effective date of the 1965 amendment would need a certificate of the Secretary of Labor; but if he already was an alien lawfully admitted to the United States for permanent residence and returning from a temporary visit abroad the 1965 amendments would not affect him. The purpose of Congress was to limit new admissions of alien laborers, not to prejudice the status of aliens, who, whether daily or seasonal commuters, had acquired permanent residence here and were returning to existing jobs.29
23
We have mentioned General Order No. 86 issued on April 1, 1927, which treated the commuters as immigrants (not nonimmigrants), who on obtaining their admission cards would be 'considered as having entered for permanent residence.'30 Cf. Karnuth v. United States ex rel. Albro, 279 U.S. 231, 244, 49 S.Ct. 274, 73 L.Ed. 677 (1929).31 The thrust of General Order No. 86 was to lift aliens who were natives of Canada and Mexico from the quota provisions for nonimmigrants. Thus, they entered from that time down to date, with nonquota immigration documents. That regulation was carried forward in various regulations before 1952.32 The practice was reviewed and sustained in various published administrative decisions.33 Some suggested that the 1952 Act eliminated the alien commuter. The Board of Immigration Appeals, however, reaffirmed the validity of the practice. Matter of H. _ _ O _ _, 5 I. & N. Dec. 716 (1954). Thereafter repeated administrative decision34 affirmed the adherence to the alien-commuter concept. We do not labor the administrative construction phase of these cases further, because when the 1952 Act was reported, the Senate Judiciary Committee tendered a voluminous report of nearly 1,000 pages touching on the alien commuters, describing the practice in some detail, and including the sections which we have discussed in this opinion. The commuters from Canada and Mexico were treated as lawfully admitted immigrants. No doubt as to the desirability of the practice was expressed. It is clear that S.Rep.No. 1515, 81st Cong., 2d Sess. (1950) (the Omnibus Study Report), reveals a congressional acceptance of the system.
24
The changes relevant to commuters in the 1965 amendments were, as stated in Gooch, minor and technical and contain no suggestion of a change in the commuter problem, 433 F.2d, at 80 81. H.R.Rep. No. 745, 89th Cong., 1st Sess. (1965); S.Rep. No. 748, 89th Cong., 1st Sess. (1965).
25
Since 1965 there have been numerous reports by committees of the Congress on the alien commuter problem which indicate that Congress is very knowledgeable about the problem and has not reached a consensus that the administrative policy reaching back at least to General Order No. 86 is wrong. We know from the Western Hemisphere Report35 that the dimensions of the problem are considerable. Daily commuters from Mexico number more than 42,000 of whom 25,000 are engaged in occupations other than agriculture. The total of Canadian commuters exceeds 10,000. Seasonal commuters number at least 8,300 according to the Service's estimate. The United States Commission on Civil Rights estimates that if Mexican commuters were cut off, they would lose $50 million annually.36 The State Department estimates there are 250,000 family members dependent on income earned by commuters37 and that commuters account for 25% to 30% of the income earned by the labor force in some Mexican border communities.38 Termination of the alien commuter practice might well have a great impact on American border communities because the Mexicans who have the status of permanent residents could settle here, increasing the problems of housing and education in the border towns this side of the Rio Grande. Former Secretary of State Rogers submitted to the District Court an affidavit stating that any 'sudden judicial termination of the commuter system, displacing the present immigrant commuters, would have a serious deleterious effect upon our relations with both Mexico and Canada.'
26
Our conclusion is twofold. First, the provisions of the Act which sanction daily commuters are the ones that also support seasonal commuters. We would have to read to same language in two opposed ways to sanction the daily commuter program and strike down the seasonal commuter program. There is no difference in administrative treatment of the two classes of commuters.
27
Second, if alien commuters are to be abolished or if seasonal commuters are to be treated differently from daily commuters, the Congress must do it. The changes suggested implicate so many policies and raise so many problems of a political, economic, and social nature that it is fit that the Judiciary recuse itself. At times judges must legislate 'interstitially' to resolve ambiguities in laws. But the problem of taking all or some alien commuters engaging in farm work out of the Act is not 'interstitial' or, as Mr. Justice Holmes once put it, 'molecular.'39 It is a massive or 'molar' action for which the Judiciary is ill-equipped.
28
We affirm the Court of Appeals insofar as it held daily commuters are lawfully admitted and reverse it insofar as seasonal commuters are concerned.
29
So ordered.
30
Judgment of Court of Appeals affirmed in part and reversed in part.
31
Mr. Justice WHITE, joined by Mr. Justice BRENNAN, Mr. Justice MARSHALL, and Mr. Justice BLACKMUN, dissenting.
32
The Court, in reaching an interpretation of the immigration statutes which permits a finding that daily and seasonal commuters from Mexico and Canada are 'special immigrants' not subject to documentation and numerical restrictions upon entry to this country, contravenes one of the cardinal principles of statutory construction: 'administrative practice does not avail to overcome a statute so plain in its commands as to leave nothing for construction.' Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 358, 77 L.Ed.796 (1933) (Cardozo, J.). Administrative construction over a long period of time is an available tool for judicial interpretation of a statute only when the statutory terms are doubtful or ambiguous. United States v. Southern Ute Indians, 402 U.S. 159, 173 n. 8, 91 S.Ct. 1336, 1343, 28 L.Ed.2d 695 (1971); Estate of Sanford v. Commissioner, 308 U.S. 39, 52, 60 S.Ct. 51, 59, 84 L.Ed. 20 (1939); Norwegian Nitrogen Products Co. v. United States, supra. In light of the characteristics of the aliens whose status is in question and the ordinary meaning of the very specific terms Congress used in these immigration statutes, this principle applies with force here.
33
* Daily and reasonal commuters both reside in fact in either Mexico or Canada and cross the border into this country either daily or seasonally to work.1 The daily commuter's defining characteristic is his limited presence in this country; he comes across the border to work each day and returns to his actual dwelling place in Mexico or Canada when his work is done. The seasonal commuter, in contrast, remains in this country continuously during the seasons in which he works here, but then absents himself completely for the remaining portions of the year. For the Court to reach its result, it must undertake the unlikely project of demonstrating that these aliens are in legal effect permanent residents of the United States under the immigration laws.
34
To qualify as a 'special immigrant' given dispensations from normal documentation requirements and numerical limitations, a commuter must be 'an immigrant, lawfully admitted for permanent residence, who is returning from a temporary visit abroad.' 8 U.S.C. § 1101(a)(27)(B). The included phrase 'lawfully admitted for permanent residence' means in turn 'the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.' § 1101(a)(20). The immigration laws define 'permanent residence' as 'the place of general abode,' a person's 'principal, actual dwelling place in fact, without regard to intent,' § 1101(a)(33), with the relationship of the person to the place of residence being 'of continuing or lasting nature, as distinguished from temporary . . ..' § 1101(a)(31). Under the Immigration and Naturalization Service's own regulations, in order to be exempt from the normal documentation requirements upon entry, an alien must be returning to his 'unrelinquished lawful permanent residence' from a 'temporary absence abroad.' 8 CFR § 211.1(b)(1). On its face, the present practice of the Service is flatly contrary to its own regulation.
35
Confronted with the obvious difficulty that this statutory language defining permanent resident status and the regulations will not accommodate the daily and seasonal commuters,2 the majority, without the aid of legislative history, contends that these plain words should be given special, technical meanings:
36
'Section 1101(a)(20) defines 'lawfully admitted for permanent residence' as 'the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed' (italics added). The definition makes the phrase descriptive of a status or privilege which need not be reduced to a permanent residence to be satisfied, so long as that status has not changed.' Ante, at 71 (italics supplied by the Court).
37
The use of italics will not alter the ordinary meaning of the statutory terminology, however, and the Court gives no basis for believing that Congress intended something other than the ordinary meaning of the words it used. No one could reasonably suggest that Congress was seeking to accommodate the commuters when it enacted these definitions and to provide special status to those who do not reside and do not intend to reside in this country. Clearly it was dealing with those aliens who seek permanent-resident status in this country and who fulfill that intention.
38
Since the language of the statute simply will not bend to allow the proposition which the Government and the Court adopt that in defining 'lawfully admitted for permanent residence' Congress meant to include persons who have never intended to reside permanently in this country, who do not currently reside in this country, and who never will become actual permanent residents3—the ultimate rationale for the decision must be that the plain meaning of the statute has been changed by a longstanding administrative practice accepted by Congress as the appropriate construction.4
II
39
Administrative construction of a statute which conflicts with the express meaning of the statutory terms can be viewed as authoritative only if it appears that Congress has in fact accepted that construction, and the burden of proof necessarily is on the proponent of the administrative view. Since '(c) ongressional inaction frequently betokens unawareness, preoccupation, or paralysis,' Zuber v. Allen, 396 U.S. 168, 185 186, n. 21, 90 S.Ct. 314, 324, 24 L.Ed.2d 345 (1969), congressional silence standing alone cannot constitute congressional acceptance of a continuing administrative practice. The Court, however, elevates such silence to acquiescence by stressing proof of the practice and the absence of any indication that Congress has 'repealed' it. Ante, at 75.
40
The administrative practice of treating daily commuters as immigrant aliens began in 1927 with the Department of Labor's General Order No. 86.5 Since Mexicans and Canadians were not subject to numerical limitations on entry into this country, this classification of the commuters had no practical effect upon them; informal documentation requirements were followed.6 It was not until 1952 that Congress enacted a provision which could have limited the entry of commuters. Under § 212(a)(14) of the 1952 Act, 66 Stat. 183, Congress provided that an immigrant could not enter if the Secretary of Labor certified that there were sufficient domestic workers available in his field of work or that his entry would have an adverse impact on the wages or working conditions of domestic workers. In 1965, Congress tightened this restriction by providing that aliens were inadmissible unless the Secretary of Labor certified that there were insufficient domestic workers available in the field and that the employment of aliens would not adversely affect wages and conditions of American workers. 8 U.S.C. § 1182(a)(14).7 In another 1965 amendment, Congress imposed the first quota on immigration from the Western Hemisphere, effective in 1968.8
41
There can be no reasonable presumption, therefore, that prior to 1952 Congress concerned itself with the propriety of the administrative classification of daily commuters under the immigration statutes.9 Only with the passage of the 1952 legislation and subsequent amendments was there evidence of some possible concern on the part of Congress with the number of Mexican and Canadian aliens entering this country to work. Thus if Congress both expressed concern at the influx of alien workers but approved the commuter practice, then the Court's conclusion of congressional acquiescence in the administrative construction would have some persuasive force. Since that construction conflicts with the meaning of the statute on its face, however, something more than silence is required to establish acquiescence. Cf. Leary v. United States, 395 U.S. 6, 24—25, 89 S.Ct. 1532, 1541 1542, 23 L.Ed.2d 57 (1969). The only evidence of congressional acceptance cited by the Court is a brief description of the prior practice with respect to commuters contained in an extremely extensive report of an investigation of this Nation's immigration system published by the Senate Judiciary Committee in 1950.10 The fact that '(n)o doubt as to the desirability of the practice was expressed,' ante, at 78, will not overcome the fact that the terms of the statute passed two years later are incompatible with that practice, and neither the Court nor the Government can point to any express congressional acceptance of that practice in spite of the incompatibility.11 The Court does say that since 1965 there have been numerous committee reports indicating congressional knowledge of the commuter problem and that Congress 'has not reached a consensus that the administrative policy . . . is wrong.' Ibid. But the Court has clearly, and erroneously, placed the burden upon Congress to show that it has not accepted the practice rather than on the administrative agency to establish that Congress has acquiesced.
42
Very recently, in noting an exception to the principle of giving great weight to an administrative construction of a statute, we said that 'an agency may not bootstrap itself into an area in which it has no jurisdiction by repeatedly violating its statutory mandate.' FMC v. Seatrain Lines, Inc., 411 U.S. 726, 745, 93 S.Ct. 1773, 1785, 36 L.Ed.2d 620 (1973). But the Court has allowed an agency to do so in this case.12
III
43
The majority acknowledges the many political, economic, and social implications of the issues in this case and the need for the Court to legislate only when interstitial ambiguities in a statute require resolution, but it then rests its rejection of these unambiguous provisions of the immigration laws upon legislative considerations: the economic consequences to the alien commuters and to their communities of finding that the administrative practice is not consistent with the statute, the possible impact upon American border communities if those commuters who are legally capable of doing so choose to take up actual residence in this country, and the need to avoid negative effects upon this country's relations with Mexico and Canada. Ante, at 78—79. But these interests, as well as the opposing interests of domestic labor, form part of the congressional calculus, and this Court is hardly equipped or authorized to predict by its decision the direction in which that balance of interests will ultimately tip. Because I believe that the Court has strayed from the neutral judicial function of applying traditional principles of statutory construction, I must respectfully dissent.
1
8 CFR § 211.1(b)(1).
2
8 U.S.C. §§ 1181(a) and 1151—1153.
3
§ 1184(b).
4
§ 1101(a)(15).
5
§ 1101(a)(15)(H). Legislation proposed in 1973 would limit the stay of these nonimmigrants to one year with possible extension to two years. H.R.Rep.No. 93—461, p. 16 (1973).
6
8 U.S.C. § 1101(a)(15)(H)(ii).
7
§ 1151(a).
8
§ 1101(a)(27)(B). The 1973 House Report, supra, n. 5, at 16, recognizes the difference between a 'special immigrant' and nonimmigrants covered by § 1101(a)(15)(H).
9
Title 8 U.S.C. § 1182(a)(14) provides:
'(a) Except as otherwise provided in this chapter, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:
'(14) Aliens seeking to enter the United States for the purpose of performing skilled or unskilled labor, unless the Secretary of Labor has determined and certified to the Secretary of State and to the Attorney General that (A) there are not sufficient workers in the United States who are able, willing, qualified, and available at the time of application for a visa and admission to the United States and at the place to which the alien is destined to perform such skilled or unskilled labor, and (B) the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed.'
10
§ 1101(a)(20).
11
A collective-bargaining agent for farmworkers. Two farm laborers were also plaintiffs and four more intervened in the District Court. The parties herein are referred to as they were in the District Court.
12
In the District Court and the Court of Appeals plaintiffs also argued that 8 CFR § 211.1(b)(1) should be read to preclude the entry of a commuter to work at a place where a labor dispute exists, even if the commuter has previously been employed there. This claim was not decided by the Court of Appeals and was not presented in plaintiffs' petition for certiorari. Hence we offer no views on the merits of this claim.
13
8 U.S.C. § 1101(a)(15)(H).
14
§ 1184(b).
15
Matter of Contopoulos, 10 I. & N. Dec. 654 (1964).
16
8 U.S.C. § 1184(b).
17
1 C. Gordon & H. Rosenfield, Immigration Law and Procedure & 2.14b (rev. ed. 1974).
18
The subsection is in 8 U.S.C. § 1101(a).
19
8 U.S.C. § 1151(a).
20
§ 1182.
21
§§ 1181(a), 1201.
22
§ 1202(a).
23
See 32 Stat. 826; 34 Stat. 596; c. 141, 37 Stat. 736.
24
By then it was called the Immigration and Naturalization Service. Reorganization Plan No. V, 54 Stat. 1238.
25
General Order No. 86 reads as follows: 'Subject: Land border crossing procedure
'1. Hereafter aliens residing in foreign contiguous countries and entering the United States to engage in existing employment or to seek employment in this country will not be considered as visiting the United States temporarily as tourists, or temporarily for business or pleasure, under any provisions of the Immigration Law which exempt visitors from complying with certain requirements thereof; that is, they will be considered as aliens of the 'immigrant' class.
'2. However, the following aliens of the said 'immigrant' class residing in foreign contiguous countries and who are now enjoying the border crossing privilege may continue so to enjoy it upon the payment of head tax, provided such head tax was assessible (sic) on aliens entering permanently at the time of original admission and, provided further, that they are not coming to seek employment.
'A. Aliens whose original admission occurred prior to June 3, 1921.
'B. Natives of nonquota countries whose original admission occurred prior to July 1, 1924.
'3. Aliens of all nationalities of the 'immigrant' class whose original admission occurred subsequent to June 30, 1924, will be required to meet all provisions of the Immigration Laws applying to aliens of the 'immigrant' class. Aliens of this class already enjoying the border crossing privilege, however, will be granted a reasonable time, not to exceed six months from July 1, 1927, within which to obtain immigration visas and otherwise comply with the laws.
'4. Aliens who have already complied with the requirements of the Immigration Laws and this General Order may be permitted to continue to enjoy the border crossing privilege.
'5. Aliens who have complied with the requirements of this General Order governing permanent admission will be considered as having entered for permanent residence.
'6. The use and issuance of identification cards to all classes of aliens entitled to same will continue as heretofore.
'7. Identification cards held by or issued to aliens of the 'immigrant' class shall be rubber-stamped as follows:
'IMMIGRANT
'10. All identification cards heretofore issued, held by aliens who cannot, or do not, meet the requirements of law, regulations and this order, will be taken up and canceled upon an incoming trip of the holder and appropriate action taken.
'12. The status of holders of identification card shall be inquired into periodically . . .. When the holder of a 'nonimmigrant' identification card qualifies as an 'immigrant,' a new identification card shall be issued, stamped to show the correct status.'
26
C. 29, 39 Stat. 874; 42 Stat. 5; c. 190, 43 Stat. 153.
27
65 Stat. 119.
28
N. 9, supra. See 1 Gordon & Rosenfield, supra, n. 17, § 2.40.
29
We find in the reports on the 1965 Act no suggestion that the commuter program was to be uprooted in its entirety, S.Rep.No. 748, 89th Cong., 1st Sess. (1965). That report emphasizes the purpose to prevent an 'influx' of foreign labor, not to destroy existing labor arrangements. Id., at 15.
30
For the text of General Order No. 86 see n. 25, supra.
31
The aliens in Karnuth wanted to be treated as nonimmigrants. One of the categories of nonimmigrants under § 3 of the Immigration Act of 1924, 43 Stat. 154, was defined as 'an alien visiting the United States temporarily . . . for business or pleasure.' The Court held they did not qualify as laborers for hire.
32
Immigration Rules and Regulations, Jan. 1, 1930, Rule 3, Subd. C; 8 CFR § 3.6 (1939); 8 CFR § 110.6 (1947).
33
Matter of D._ _ C_ _, 3 I. & N.Dec. 519 (1949); Matter of L_ _, 4 I. & N. Dec. 454 (1951).
34
Matter of M_ _ D_ _ S_ _, 8 I. & N. Dec. 209 (1958); Matter of Bailey, 11 I. & N. Dec. 466 (1966); Matter of Burciaga-Salcedo, 11 I. & N. Dec. 665 (1966); Matter of Gerhard, 12 I. & N. Dec. 556 (1967); Matter of Wighton, 13 I. & N. Dec. 683 (1971); Matter of Hoffman-Arvayo, 13 I. & N. Dec. 750 (1971).
35
Report, of Select Commission on Western Hemisphere Immigration, 104 (1968). See S.Rep. No. 91—83, p. 65 (1969), stating that the alien commuter problem 'can be resolved not by drastically putting an end to the commuter system, but by refining its current operations.' See Hearings on H.R. 9112, H.R. 15092, H.R. 17370 before Subcommittee No. 1 of the House Committee on the Judiciary, 91st Cong., 2d Sess., 205—207.
36
Stranger in One's Land 12 (Clearinghouse Publication No. 19, 1970).
37
Statement of Assistant Secretary of State Oliver to the Senate Subcommittee on Immigration, Sept. 25, 1967, p. 6.
38
Id., at 4.
39
'I recognize without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions.' Southern Pacific Co. v. Jensen, 244 U.S. 205, 221 (1917) 37 S.Ct. 524, 531, 61 L.Ed. 1086 (dissenting opinion).
1
Counsel for the federal parties (hereinafter the Government) indicated at oral argument that commuters actually form a spectrum rather than two hard-and-fast categorles. Some commuters stay in this country for whole seasons and then switch later to daily commuting. Some daily commuters come across the border less regularly than every workday, and sometimes seek only temporary employment and switch employers. Tr. of Oral Arg., 18, 52, 54.
2
Strain between the statute and the administrative practice is also evident in the need for the Government to fit the daily commuter's trip each day from his home in Mexico or Canada to his workplace in this country as a return to this country 'from a temporary visit abroad.' 8 U.S.C. § 1101(a)(27)(B) (emphasis added). As indicated in the text, the regulations refer to a return to 'an unrelinquished lawful permanent residence' in this country from 'a temporary absence abroad . . ..' 8 CFR § 211.1(b).
3
In an effort to make the facts fit the statute, the Court of Appeals found that the commuter's place of work could be considered his permanent residence. 156 U.S.App.D.C. 304, 311, 481 F.2d 479, 486 (1973). Others have noted the 'logical inconsistency' and the lack of a precise fit between the practice and the law but have justified the discordance by citing 'practical needs and considerations of foreign policy.' 1 C. Gordon & H. Rosenfield, Immigration Law and Procedure § 2.19, p. 2 105 (1973 Cum.Supp.). The practice has been viewed as an 'amiable fiction' and the product of 'administrative ingenuity.' Id., § 2.8b, p. 2—43 (1974). The Board of Immigration Appeals has similarly acknowledged that the commuter practice 'manifestly does not fit into any precise category found in the immigration statutes' and that '(t)he status is an artificial one, predicated upon good international relations maintained and cherished between friendly neighbors.' Matter of M_ _ D_ _ S_ _, 8 I. & N.Dec. 209, 213 (1958).
4
The effect of the Court's decision is not only to stretch the meaning of the statute so as to include commuters within the permanent resident status, but also to throw into question the meaning of 'permanent resident' throughout the immigration laws with obvious anomalous consequences. See Gooch v. Clark, 433 F.2d 74, 83—85 (CA9 1970) (Wright, J., dissenting). For example, the 'spouses, unmarried sons or unmarried daughters of an alien lawfully admitted for permanent residence' are included in the second preference group for immigration visas. 8 U.S.C. § 1153(a)(2). Thus a commuter's immediate kin are perhaps eligible for a preference although the commuter may himself have been entitled to no preference. The Government suggests that the commuter's status for other purposes is not before the Court and need not be decided. Brief for Federal Parties 28. But the Court should be reluctant to accept an invitation to make an ad hoc decision with respect to one aspect of a statutory definition where it is clear that the definition is a central one which Congress has provided with the intent of having it applied generally.
5
See the relevant text of General Order No. 86, ante, at 74 75 n. 25.
6
The Court's opinion suggests that General Order No. 86 removed commuters from quota restrictions applicable to nonimmigrants. Ante, at 77. But Mexican and Canadian commuters had not been subject to any quotas. The Immigration Act of 1924 imposed no quotas on nonimmigrants, and Mexicans and Canadians were not subject to immigrant quotas. 43 Stat. 153. The General Order was designed primarily to prevent quota aliens from entering this country through Canada and Mexico as nonimmigrants. Letter from Secretary of Labor, dated Nov. 26, 1928, in App. A of H.R.Rep.No. 2401, 70th Cong., 2d Sess., 5—10 (1929). Informal documentation was maintained despite the classification of the commuters as immigrants because the immigration authorities did not view Congress as intending to interfere with the practice of border crossings by commuters. Report of Select Commission on Western Hemisphere Immigration 101—102 (1968).
7
The Secretary of Labor has not issued a certification allowing the entry of aliens seeking employment as farm laborers. 29 CFR. §§ 60.2(a)(2), 60.7 (Schedule B).
8
§ 21(e), 79 Stat. 921.
9
The Government refers to the inclusion in an early draft of a House bill, H.R. 5138, which ultimately became the Alien Registration Act of 1940, of a provision which would have prohibited any alien from entering this country from Mexico or Canada for the purposes of working or seeking employment. Hearing on H.R. 5138 before Subcommittee No. 3, of the House Committee on the Judiciary, 76th Cong., 1st Sess., ser. 3, p. 3 (1939). The deletion of that provision prior to the reporting of the bill does not signal congressional approval of the administrative classification of commuters, but rather, as with the absence of quotas restricting the entry of Mexicans and Canadians, an unwillingness to restrict such entry which persisted at least until 1952.
10
S.Rep.No. 1515, 81st Cong., 2d Sess., 535—536, 616 (1950).
11
The Government concedes that the seasonal commuter practice grew after the bracero program had lapsed. Tr. of Oral Arg., 53; Brief for Federal Parties 75. See also Gordon, The Amiable Fiction—Alien Commuters Under Our Immigration Laws, in Employment of 'Green Card' Aliens During Labor Disputes, Hearings on H.R. 12667 before the Special Subcommittee on Labor of the House Committee on Education and Labor, 91st Cong., 1st Sess., 181, 183 (1969). Therefore, there is even less reason for believing that Congress acquiesced in the administrative classification of seasonal commuters.
12
The majority cites Massachusetts Trustees v. United States, 377 U.S. 235, 84 S.Ct. 1236, 12 L.Ed.2d 268 (1964), and United States v. Midwest Oil co., 236 U.S. 459, 35 S.Ct. 309, 59 L.Ed. 673 (1915), in support of its rationale of statutory construction. Ante, at 74. A comparison of the statutes and facts of those cases
with the situation here, however, graphically reveals the extent of the majority's departure from accepted canons of construction.
In Massachusetts Trustees the Court was faced with the problem of harmonizing apparently inconsistent sections of the same statute governing an agency's authority. The literal language of the statute was found insufficiently precise to dispose of the question, Under these circumstances, the Court looked to the agency's practice, which could be given 'some weight'; but the successive extensions by Congress of the agency's authority in the face of the agency's prior practice was not, even then, to be controlling. 377 U.S., at 241—245, 84 S.Ct., at 1241—1244.
In Midwest Oil Co. the Presidential power to withdraw public lands from private acquisition which Congress by legislation had made free and open to occupation and purchase was found in the hundreds of such withdrawal orders, beginning in the early years of the Government, which had not been repudiated by Congress. In addition, the Executive Order in question was issued seven years after the Secretary of the Interior, in response to a resolution of the Senate calling for information as to the authority for such withdrawals, sent to the Senate a report which cited the longstanding practice and the Executive's claim of authority. Congress took no action to repudiate that claim. Legislation soon after the order in question authorized such withdrawals by the President prospectively, expressed no intention on the part of Congress to repudiate past withdrawals, and left the question of the validity of past withdrawals to the courts. 236 U.S., at 469 471, 480—483, 35 S.Ct., at 311—312, 315—317. Nothing in this case remotely resembles the historical record upon which congressional acquiescence was premised in Midwest Oil Co.
| 12
|
419 U.S. 90
95 S.Ct. 289.
42 L.Ed.2d 249
Alfredo GONZALEZ, Individually and on behalf of all others similarly situated, Appellant,v.AUTOMATIC EMPLOYEES CREDIT UNION et al.
No. 73—858.
Argued Oct. 21, 1974.
Decided Dec. 10, 1974.
Syllabus
Appellant brought this class action for injunctive and declaratory relief attacking the constitutionality of Illinois automobile repossession and resale statutory provisions and alleging that he had purchased a car on a retail installment contract later assigned to appellee bank which (assertedly without any default by appellant or notice to him) repossessed the car and resold it to a third party to whom title was transferred. A three-judge District Court held that appellant lacked 'standing' to attack the constitutionality of the statutory scheme since the repossession and sale of the car had already taken place and that since appellant was allegedly not in default the complaint was directed, not at the constitutionality of the statutory provisions, but only at the bank's abuse of those provisions. Appellant sought review under 28 U.S.C. § 1253, which provides for an appeal to this Court from an order granting or denying an injunction in a civil action required by any Act of Congress to be heard and determined by a three-judge district court. Appellant contends, inter alia, that dismissal of his complaint 'denied' him the injunctive relief that he sought, whereas appellee bank maintains that an injunction is not 'denied' for purposes of § 1253 by a dismissal based on grounds short of a statute's constitutional validity. Held: When a three-judge district court denies a plaintiff injunctive relief on grounds that, if sound, would have justified dissolution of the court as to that plaintiff of a refusal to convene a three-judge court to begin with, review of the denial is available in the court of appeals; and since here the three-judge District Court's decision that the complaint was nonjusticiable for lack of 'standing' was a ground upon which that court could have dissolved itself, leaving the complaint's disposition to a single judge, the Court of Appeals should determine the 'standing' issue, which this Court has no jurisdiction under § 1253 to consider. Pp. 93—101.
363 F.Supp. 143, vacated and remanded.
James O. Latturner, Chicago, Ill., for appellant.
Albert E. Jenner, Jr., Chicago, Ill., for appellees.
Mr. Justice STEWART delivered the opinion of the Court.
1
This is an appeal under 28 U.S.C. § 1253 from an order of a three-judge court dismissing the appellant's complaint for lack of 'standing.'1 We deferred consideration of our jurisdiction until the hearing on the merits. 415 U.S. 947, 94 S.Ct. 1467, 39 L.Ed.2d 562. For the reasons that follow, we have concluded that the District Court's order is not directly appealable to this Court.
2
* The appellant Gonzalez and three other named plaintiffs brought a class action in the District Court attacking as unconstitutional various provisions of the Commercial Code and Motor Vehicle Code of Illinois governing repossession, retitling, and resale of automobiles purchased on an installment basis under security agreements.2 The plaintiffs alleged that the statutory scheme violated a debtor-purchaser's rights—under the Fourteenth, Fourth, and Fifth Amendments to the United States Constitution—to notice, hearing, and impartial determination of contractual default prior to repossession of the car, transfer of title to the secured party, or resale of the car by the secured party. The plaintiffs sought a declaratory judgment to this effect, a permanent injunction, and compensatory and punitive damages for past violations of their alleged constitutional rights. A three-judge court was convened pursuant to 28 U.S.C. § 2281.3
3
The named plaintiffs sought to represent the class of all debtor-purchasers, under security agreements involving motor vehicles, 'who have had or may have their automobiles or other motor vehicles repossessed and sold for an alleged default without prior notice and an opportunity to be heard and whose certificate of title has been or will be terminated and transferred by the Secretary of State.' The named defendants were the Secretary of State of Illinois, responsible for transferring title under the challenged statutes, and five organizations operating as secured creditors in the motor vehicle field. The complaint also designated a defendant class, consisting of all secured creditors who may, 'upon their unilateral determination of default by debtor-obligees,' seek to repossess, and to dispose of, motor vehicles under the challenged statutes.
4
The pleadings and supplementary documents showed that Gonzalez had purchased a car on a retail installment contract, which had later been assigned to the defendant-appellee, Mercantile National Bank of Chicago (Mercantile). Before Gonzalez joined this lawsuit, Mercantile had repossessed the car, resold it to a third party, and arranged a title transfer to that party through the office of the Secretary of State. The complaint alleged that all of this had been done without notice to Gonzalez, and that he had not in fact been in default under the installment contract. On the basis of these facts, the three-judge court dismissed the complaint.4
5
The court held that Gonzalez lacked 'standing' to contest the constitutionality of the statutory scheme. First, the court observed that enjoining future enforcement of the scheme would be a 'useless act' so far as Gonzalez was concerned, since the events of which he complained—the repossession and resale of his car—had already taken place.5 Secondly, the court reasoned that the complaint, because it alleged that Gonzalez had not been in default, was directed, not at the constitutional validity of the statutory scheme, but only at Mercantile's abuse of the scheme. Noting that the statutory provision authorized repossession and title transfer only upon default, and provided for injunctive relief and damages where creditors acted in the absence of default, the court held that Gonzalez lacked standing to litigate 'the validity of these statutes when properly applied to debtors actually in default.'6 The complaint was dismissed '(s)ince . . . all plaintiffs in this case fail to present a claim which can be reached on the merits.'7
II
6
Appealing here individually and as a purported class representative, Gonzalez seeks reversal of the District Court's 'standing' determination, and an order directing the reinstatement of his complaint. Our appellate jurisdiction is controlled by 28 U.S.C. § 1253:
7
'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.'
8
Gonzalez' jurisdictional argument is very simple: The dismissal of his complaint did in fact 'deny' him the permanent injunctive relief he requested, and the case was one 'required . . . to be heard and determined' by three judges because the several conditions precedent to convening a three-judge court under 28 U.S.C. §§ 2281 and 2284 were met. That is, the constitutional question raised was substantial;8 the action sought to enjoin a state official from executing statutes of statewide application;9 and the complaint at least formally alleged a basis for equitable relief.10
9
Mercantile denies that all of these conditions were met, but places greater emphasis on an entirely different reading of § 1253. Mercantile argues that an injunction is not 'denied' for purposes of § 1253 unless the denial is based upon an adverse determination on the merits of the plaintiff's constitutional attack on the state statutes. In the present case, injunctive relief was denied, not because the court found the challenged statutes constitutionally sound, but only because the court found that Gonzalez lacked standing to make the challenge. Mercantile argues that a dismissal premised on grounds short of the constitutional merits should be reviewed in the first instance by the Court of Appeals, rather than by direct appeal to this Court.
10
It is an understatement to say that this argument is not wholly supported by precedent, for the fact is that the Court has on several occasions entertained direct appeals from three-judge-court orders denying injunctions on grounds short of the merits.11 But it is also a fact that in the area of statutory three-judge-court law the doctrine of stare decisis has historically been accorded considerably less than its usual weight. These procedural statutes are very awkwardly drafted,12 and in struggling to make workable sense of them, the Court has not infrequently been induced to retrace its steps.13 Writing for the Court on one of these occasions, Mr. Justice Harlan noted:
11
'Unless inexorably commanded by statute, a procedural principle of this importance should not be kept on the books in the name of stare decisis once it is proved to be unworkable in practice; the mischievous consequences to litigants and courts alike from the perpetuation of an unworkable rule are too great.' Swift & Co. v. Wickham, 382 U.S. 111, 116, 86 S.Ct. 258, 261, 15 L.Ed.2d 194.
12
The reading given to § 1253 by appellant Gonzalez is not 'inexorably commanded by statute.' For the statute 'authorizes direct review by this Court . . . as a means of accelerating a final determination on the merits.' Swift & Co. v. Wickham, supra, at 119, 86 S.Ct. at 263. It is true that dismissal of a complaint on grounds short of the merits does 'deny' the injunction in a literal sense, but a literalistic approach is fully persuasive only if followed without deviation. In fact, this Court's interpretation of the three-judge-court statutes has frequently deviated from the path of literalism.14 If the opaque terms and prolix syntax of these statutes were given their full play, three-judge courts would be convened, and mandatory appeals would lie here, in many circumstances where such extraordinary procedures would serve no discernible purpose.
13
Congress established the three-judge-court apparatus for one reason: to save state and federal statutes from improvident doom, on constitutional grounds, at the hands of a single federal district judge.15 But some of the literal words of the statutory apparatus bear little or no relation to that underlying policy, and in construing these we have stressed that the three-judge-court procedure is not 'a measure of broad social policy to be construed with great liberality.' Phillips v. United States, 312 U.S. 246, 251, 61 S.Ct. 480, 483, 85 L.Ed. 800. See also Kesler v. Dept. of Public Safety, 369 U.S. 153, 156—157, 82 S.Ct. 807, 810—811, 7 L.Ed.2d 641; Swift & Co. v. Wickham, 382 U.S., at 124, 86 S.Ct., at 265; Allen v. State Board of Elections, 393 U.S. 544, 561—562, 89 S.Ct. 817, 829—230, 22 L.Ed.2d 1.
14
The words of § 1253 governing this Court's appellate jurisdiction over orders denying injunctions fall within this canon of narrow construction. Whether this jurisdiction be read broadly or narrowly, there will be no impact on the underlying congressional policy of ensuring this Court's swift review of three-judge-court orders that grant injunctions. Furthermore, only a narrow construction is consonant with the overriding policy, historically encouraged by Congress, of minimizing the mandatory docket of this Court in the interests of sound judicial administration.16
15
Mercantile argues that § 1253 should be read to limit our direct review of three-judge-court orders denying injunctions to those that rest upon resolution of the constitutional merits of the case. There would be evident virtues to this rule. It would lend symmetry to the Court's jurisdiction since, in reviewing orders granting injunctions, the Court is necessarily dealing with a resolution of the merits. While issues short of the merits—such as justiciability, subject-matter jurisdiction, equitable jurisdiction, and abstention—are often of more than trivial consequence, that alone does not argue for our reviewing them on direct appeal. Discretionary review in any case would remain available, informed by the mediating wisdom of a court of appeals. Furthermore, the courts of appeals might in many instances give more detailed consideration to these issues than this Court, which disposes of most mandatory appeals in summary fashion.17
16
But the facts of this case do not require us to explore the full sweep of Mercantile's argument. Here the threejudge court dismissed the complaint for lack of 'standing.' This ground for decision, that the complaint was nonjusticiable, was not merely short of the ultimate merits; it was also, like an absence of statutory subject-matter jurisdiction, a ground upon which a single judge could have declined to convene a three-judge court, or upon which the three-judge court could have dissolved itself, leaving final disposition of the complaint to a single judge.18
17
A three-judge court is not required where the district court itself lacks jurisdiction of the complaint or the complaint is not justiciable in the federal courts. See Ex parte Poresky, 290 U.S. 30, 31, 54 S.Ct. 3, 4. It is now well settled that refusal to request the convention of a three-judge court, dissolution of a three-judge court, and dismissal of a complaint by a single judge are orders reviewable in the court of appeals, not here.19 If the three-judge court in the present case had dissolved itself on grounds that 'standing' was absent, and had left subsequent dismissal of the complaint to a single judge, this Court would thus clearly have lacked appellate jurisdiction over both orders. The same would have been true if the dissolution and dismissal decisions had been made simultaneously, with the single judge merely adopting the action of the three-judge court.20 The locus of appellate review should not turn on such technical distinctions.
18
Where the three-judge court perceives a ground justifying both dissolution and dismissal, the chronology of decisionmaking is typically a matter of mere convenience or happenstance. Our mandatory docket must rest on a firmer foundation than this. We hold, therefore, that when a three-judge court denies a plaintiff injunctive relief on grounds which, if sound, would have justified dissolution of the court as to that plaintiff, or a refusal to request the convention of a three-judge court ab initio, review of the denial is available only in the court of appeals.
19
In the present case, accordingly, the correctness of the District Court's view of Gonzalez' standing to sue is for the Court of Appeals to determine. We intimate no views on the issue, for we are without jurisdiction to consider it.21 We simply vacate the order before us and remand the case to the District Court so that a fresh order may be entered and a timely appeal prosecuted to the Court of Appeals.22
20
It is so ordered.
21
Vacated and remanded.
1
Mojica v. Automatic Employees Credit Union, D.C., 363 F.Supp. 143.
2
Ill.Rev.Stat., c. 26, §§ 9—503 and 9—504, and Ill.Rev.Stat., c. 95 1/2, §§ 3—114(b), 3—116(b), and 3—612.
3
Section 2281 provides:
'An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.'
4
Since only Gonzalez has sought review of the three-judge court's dismissal of the complaint, we confine our summary of that court's analysis to the specific facts of his case. The District Court's analysis was similar, however, with regard to each of the named plaintiffs.
5
Mojica v. Automatic Employees Credit Union, supra, at 145 146.
6
Id., at 145.
7
Id., at 146.
8
See Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36.
9
See Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643.
10
See Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794.
11
Cases in which the Distrct Court had denied injunctive relief for want of4standing, or of justiciability generally: Florida Lime & Avocado Growers v. Jacobsen, 362 U.S. 73, 80 S.Ct. 568, 4 L.Ed.2d 568; Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663; Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947; Richardson v. Kennedy, 401 U.S. 901, 91 S.Ct. 868, 27 L.Ed.2d 800; Granite Falls State Bank v. Schneider, 402 U.S. 1006, 91 S.Ct. 2187, 29 L.Ed.2d 428. Cases where denial was for want of subject-matter jurisdiction: Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424; Carter v. Stanton, 405 U.S. 669, 92 S.Ct. 1232, 31 L.Ed.2d 569. Cases where denial was on grounds of abstention or for want of equitable jurisdiction: Doud v. Hodge, 350 U.S. 485, 76 S.Ct. 491, 100 L.Ed. 577; Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444. Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705; American Trial Lawyers Assn. v. New Jersey Supreme Court, 409 U.S. 467, 93 S.Ct. 627, 34 L.Ed.2d 651.
12
Perhaps the oddest feature of § 1253 is that it conditions this Court's appellate jurisdiction on whether the three-judge court was correctly convened. But the Court has abjured this literalistic reading of the statute and has not hesitated to exercise jurisdiction 'to determine the authority of the court below and 'to make such corrective order as may be appropriate to the enforcement of the limitations which that section imposes." Bailey v. Patterson, 369 U.S. 31, 34, 82 S.Ct. 549, 551, 7 L.Ed.2d 512, quoting Gully v. Interstate Natural Gas Co., 292 U.S. 16, 18, 54 S.Ct. 565, 566, 78 L.Ed. 1088.
13
For example: compare Idlewild Bon Voyage Liquor Corp. v. Epstein, supra, with Stratton v. St. Louis S.W.R. Co., 282 U.S. 10, 51 S.Ct. 8, 75 L.Ed. 135 (whether review of a single judge's refusal to convene a three-judge court is available in the court of appeals); compare Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 with FHA v. Darlington, Inc., 358 U.S. 84, 87, 79 S.Ct. 141, 144, 3 L.Ed.2d 132 (whether three judges are required where only declaratory relief is requested); compare Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 with Kesler v. Dept. of Public Safety, 369 U.S. 153, 82 S.Ct. 807, 7 L.Ed.2d 641 (whether a three-judge court is required when a complaint seeks to enjoin a state statute on the ground that it violates the Supremacy Clause).
14
Read literally, § 1253 would give this Court appellate jurisdiction over even a single judge's order granting or denying an injunction if the 'action, suit, or proceeding' were in fact one 'required . . . to be heard and determined' by three judges. But we have glossed the provision so as to restrict our jurisdiction to orders actually entered by three-judge courts. See Ex parte Metropolitan Water Co., 220 U.S. 539, 545, 31 S.Ct. 600, 603, 55 L.Ed. 575.
A single judge is literally forbidden to 'dismiss the action, or enter a summary or final judgment' in any case required to be heard by three judges. 28 U.S.C. § 2284(5). Read literally, this provision might be held to prohibit a single judge from dismissing a case unless he has determined that it fails to meet the requirements of § 2281 or § 2282. See Berueffy, The Three Judge Federal Court, 15 Rocky Mt. L.Rev. 64, 73—74 (1942), and Note, 28 Minn.L.Rev. 131, 132 (1944). But we have always recognized a single judge's power to dismiss a complaint for want of general subject-matter jurisdiction, without inquiry into the additional requisites specified in §§ 2281 and 2282. Ex parte Poresky, 290 U.S. 30, 31, 54 S.Ct. 3, 4, 78 L.Ed. 152; Bailey v. Patterson, 369 U.S., at 33, 82 S.Ct. at 550; Idlewild Bon Voyage Liquor Corp., 370 U.S., at 715, 82 S.Ct. at 1296; Goosby v. Osser, supra.
While the literal terms of the three-judge-court statutes give us appellate jurisdiction over any three-judge-court order granting or denying an 'interlocutory or permanent injunction,' we have in fact disclaimed jurisdiction over intelocutory orders denying permanent injunctions, Goldstein v. Cox, 396 U.S. 471, 90 S.Ct. 671, 24 L.Ed.2d 663, and Rockefeller v. Catholic Medical Center, 397 U.S. 820, 90 S.Ct. 1517, 25 L.Ed.2d 806.
While § 2281 requires a three-judge court where the injunction will operate against any state 'statute,' we have construed the term narrowly, to include only enactments of statewide application, Moody v. Flowers, 387 U.S., at 101, 87 S.Ct. 1544, 1547, 18 L.Ed.2d 64. Cf. King Mfg. Co. v. City Council of Augusta, 277 U.S. 100, 103—104, 48 S.Ct. 489, 490, 72 L.Ed. 801, construing far more broadly the term 'statute' as used in the predecessor to 28 U.S.C. § 1257(2).
While § 2281 calls for three judges to enjoin a statute 'upon the ground' of its 'unconstitutionality,' we have held that three judges are not in fact necessary where the unconstitutionality of the statute is obvious and patent, Bailey v. Patterson, supra, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512, or where the constitutional challenge is grounded on the Supremacy Clause, Swift & Co. v. Wickham, supra. See also n. 12, supra.
15
Phillips v. United States, 312 U.S. 246, 250—251, 61 S.Ct. 480, 483, 85 L.Ed. 800; Bailey v. Patterson, supra, 369 U.S., at 33, 82 S.Ct. at 550. The Court sketched the legislative history of the three-judge-court statutes in Swift & Co. v. Wickham, 382 U.S., at 116—119, 86 S.Ct. at 261—263. See also Currie, The Three-Judge District Court in Constitutional Litigation, 32 U.Chi.L.Rev. 1, 3—12 (1964); Note, The Three-Judge District Court: Scope and Procedure Under Section 2281, 77 Harv.L.Rev. 299, 299—301 (1963).
16
'(I)nasmuch as this procedure also brings direct review of a district court to this Court, any loose construction of the requirements . . . would defeat the purposes of Congress, as expressed by the Jurisdictional Act of February 13, 1925, to keep within narrow confines our appellate docket.' Phillips v. United States, 312 U.S., at 250, 61 S.Ct. at 483. See also Goldstein v. Cox, 396 U.S., at 478, 90 S.Ct. at 675; Gunn v. University Committee, 399 U.S. 383, 387—388, 90 S.Ct. 2013, 2015—2016, 26 L.Ed.2d 684; Allen v. State Board of Elections, 393 U.S., at 562, 89 S.Ct. at 830; Board of Regents v. New Left Education Project, 404 U.S. 541, 543, 92 S.Ct. 652, 653, 30 L.Ed.2d 697.
'The history of latter-day judiciary acts is largely the story of restricting the right of appeal to the Supreme Court.' F. Frank-furter & J. Landis, The Business of the Supreme Court 119 (1927). To this trend of reform, the Court's mandatory appellate jurisdiction under the three-judge-court statutes represents a major, and increasingly controversial, exception. The number of cases heard by three-judge courts has dramatically increased in the past decade. See Ammerman, Three-Judge Courts: See How They Run!, 52 F.R.D. 293, 304—306; Annual Report of the Director of the Administrative Office of the United States Courts, 1974, p. IX—44. In the 1972 Term, 43 of the Court's opinions—nearly a quarter of the total—were in three-judge-court cases. Symposium, The Freund Report: A Statistical Analysis and Critique, 27 Rutgers L.Rev. 878, 902 (1974). This marks a dilution of that control over our docket which Mr. Chief Justice Taft identified as the prime object of the 1925 Act. Taft, The Jurisdiction of the Supreme Court Under the Act of February 13, 1925, 35 Yale L.J. 1 (1925).
17
This Court typically disposes summarily of between two-thirds and three-fourths of the three-judge-court appeals filed each term. Douglas, The Supreme Court and Its Case Load, 45 Cornell L.Q. 401, 410 (1960). See Symposium, 27 Rutgers L.Rev., supra, n. 9, at 902—903. It seems more than probable that many of these cases, while unworthy of plenary consideration here, would benefit from the normal appellate review available to single-judge cases in the courts of appeals.
18
See Rosado v. Wyman, D.C., 304 F.Supp. 1354, appeal dismissed, 395 U.S. 826, 89 S.Ct. 2134, 23 L.Ed.2d 739; Mengelkoch v. Industrial Welfare Comm'n, D.C., 284 F.Supp. 950, vacated to permit appeal to Court of Appeals, 393 U.S. 83, 89 S.Ct. 60, 21 L.Ed.2d 215; Crossen v. Breckenridge, 6 Cir., 446 F.2d 833, 837; American Commuters Assn. v. Levitt, D.C., 279 F.Supp. 40, aff'd, 2 Cir., 405 F.2d 1148; Hart v. Kennedy, 10 Cir., 314 F.Supp. 823, 824.
19
Where a single judge refuses to request the convention of a three-judge court, but retains jurisdiction, review of his refusal may be had in the court of appeals, see Idlewild Bon Voyage Liquor Corp. v. Epstein, supra, and Schackman v. Arnebergh, 387 U.S. 427, 87 S.Ct. 1622, 18 L.Ed.2d 865, either through petition for writ of mandamus or through a certified interlocutory appeal under 28 U.S.C. § 1292(b). These also are the routes of review of a three-judge court's decision to dissolve itself, Mengelkoch v. Industrial Welfare Comm'n, 393 U.S. 83, 89 S.Ct. 60, 21 L.Ed.2d 215, and Wilson v. Port Lavaca, 391 U.S. 352, 88 S.Ct. 1502, 20 L.Ed.2d 636. Where a single judge has disposed of the complaint through a final order, appeal lies to the court of appeals under 28 U.S.C. § 1291.
20
Wilson v. Port Lavaca, supra.
21
It appears that Gonzalez and Mercantile settled the former's damage claim while this appeal was pending. The Court of Appeals will, of course, be free to consider this new development in appraising the correctness of the dismissal of the complaint. See SEC v. Medical Committee for Human Rights, 404 U.S. 403, 92 S.Ct. 577, 30 L.Ed.2d 560.
22
28 U.S.C. § 1291. See Mengelkoch v. Industrial Welfare Comm'n, 393 U.S., at 84, 89 S.Ct., at 61.
| 89
|
42 L.Ed.2d 378
95 S.Ct. 392
419 U.S. 186
GULF OIL CORPORATION et al., Petitioners,v.COPP PAVING COMPANY, INC., et al.
No. 73—1012.
Argued Oct. 21, 22, 1974.
Dec. 17, 1974.
syllabus
Respondent operators of a California 'hot plant,' at which asphaltic concrete for surfacing highways is manufactured and sold entirely intrastate, alleging violations of, inter alia, § 2(a) of the Clayton Act, as amended by the Robinson-Patman Act and §§ 3 and 7 of the Clayton Act (hereafter § 2(a)), brought suit against petitioner liquid asphalt producers and two of their subsidiaries, to which such asphalt is sold and which use it to manufacture and sell asphaltic concrete in competition with respondents. Section 2(a) forbids 'any person engaged in commerce, in the course of such commerce' to discriminate in price 'where either or any of the purchases involved in such discrimination are in commerce' and the discrimination has substantial anticompetitive effects 'in any line of commerce.' Section 3 makes it unlawful 'for any person engaged in commerce, in the course of such commerce' to make tie-in sales or enter exclusive-dealing arrangements where the effect 'may be to substantially lessen competition or tend to create a monopoly in any line of commerce.' And § 7 forbids certain acquisitions by a corporation 'engaged in commerce' of the assets or stock 'of another corporation engaged also in commerce' where the effect may be substantially to lessen competition 'in any line of commerce in any section of the country.' The District Court held that it had no jurisdiction of the claims because the market for asphaltic concrete is exclusively and necessarily local, but the Court of Appeals reversed, holding that the jurisdictional requirements of §§ 2(a), 3, and 7 were satisfied by the fact that sales of asphaltic concrete are made for use in interstate highways. Held:
1. The fact that interstate highways are instrumentalities of commerce does not render petitioners' conduct with respect to a material sold for use in constructing these highways 'in commerce' as a matter of law for purposes of §§ 2(a), 3, and 7 of the Clayton Act. Overstreet v. North Shore Corp., 318 U.S. 125, 63 S.Ct. 494, 87 L.Ed. 656, and Alstate Construction Co. v. Durkin, 345 U.S. 13, 73 S.Ct. 565, 97 L.Ed. 745, distinguished. Pp. 193 199.
2. The 'in commerce' language of the Robinson-Patman and Clayton Act provisions in question does not extend on an 'effects on commerce' theory to petitioners' sales and acquisitions. Pp. 199—203.
(a) In face of the longstanding judicial interpretation of the language of § 2(a) requiring that 'either or any of the purchases involved in such discrimination (be) in commerce,' as meaning that § 2(a) applies only where "at least one of the two transactions which, when compared, generate a discrimination . . . cross(es) a state line," Hiram Walker, Inc. v. A & § Tropical, Inc., 5 Cir., 407 F.2d 4, 9; Belliston v. Texaco, Inc., 9 Cir., 455 F.2d 175, 178, and the continued congressional silence on the subject, this Court is not warranted in extending § 2(a) beyond its clear language to reach a multitude of local activities hitherto left to state and local regulation. Pp. 199—201.
(b) The 'effects on commerce' theory, whereby §§ 3 and 7 of the Clayton Act would be held to extend to acquisitions and sales having substantial effects on commerce, even if legally correct, fails here for want of proof, since respondents presented no evidence of effect on interstate commerce from the use of asphaltic concrete in interstate highways. Pp. 201—203, 487 F.2d 202, reversed.
Moses Lasky, San Francisco, Cal., for petitioners.
Martin M. Shapero, Los Angeles, Cal., for respondents.
Mr. Justice POWELL delivered the opinion of the Court.
1
This case concerns the jurisdictional requirements of § 2(a) of the Clayton Act, as amended by the Robinson-Patman Act, 49 Stat. 1526,1 15 U.S.C. § 13(a), and of §§ 3 and 7 of the Clayton Act, 38 Stat. 731, as amended, 15 U.S.C. §§ 14 and 18. It presents the questions whether a firm engaged in entirely intrastate sales of asphaltic concrete, a product that can be marketed only locally, is a corporation 'in commerce' within the meaning of each of these sections, and whether such sales are 'in commerce' and 'in the course of such commerce' within the meaning of §§ 2(a) and 3 respectively. The Court of Appeals for the Ninth Circuit held these jurisdictional requirements satisfied, without more, by the fact that sales of asphaltic concrete are made for use in construction of interstate highways. 487 F.2d 202 (1973). We reverse.
2
* Asphaltic concrete is a product used to surface roads and highways. It is manufactured at 'hot plants' by combining, at temperatures of approximately 375 F, about 5% liquid petroleum asphalt with about 95% aggregates and fillers. The substance is delivered by truck to construction sites, where it is placed at temperatures of about 275 F. Because it must be hot when placed and because of its great weight and relatively low value, asphaltic concrete can be sold and delivered profitably only within a radius of 35 miles or so from the hot plant.
3
Petitioners Union Oil Co., Gulf Oil Corp., and Edgington Oil Co., defendants below, produce liquid petroleum asphalt from crude oil at their California refineries. The companies sell liquid asphalt to their subsidiaries and other firms throughout the Western States. The market in liquid asphalt is interstate, and each oil company concedes that it engages in interstate commerce.
4
Petitioner Union Oil sells some of its liquid asphalt to its wholly owned subsidiary, Sully-Miller Contracting Co., which uses it to manufacture asphaltic concrete at 11 hot plants in Los Angeles and Orange Counties, Cal. Gulf Oil sells all of its liquid asphalt to its wholly owned subsidiary, petitioner Industrial Asphalt, Inc. Industrial distributes the liquid asphalt to third parties and also uses it to produce asphaltic concrete at 55 hot plants in California, Arizona, and Nevada. Edgington Oil sells its liquid asphalt to, inter alia, Sully-Miller, Industrial, and respondents.
5
Respondents, Copp Paving Co., Inc., Copp Equipment Co., Inc., and Ernest A. Copp,1a operate a hot plant in Artesia, Cal., where they produce asphaltic concrete both for Copp's own use as a paving contractor and for sale to other contractors. Copp's operations and asphaltic concrete sales are limited to the southern half of Los Angeles County, where it competes with Sully-Miller and Industrial in the asphaltic concrete market. All three firms sell a more than de minimis share of their asphaltic concrete for use in the construction of local segments of the interstate highway system. Neither Copp, Industrial, nor Sully-Miller makes any interstate sales of the product.2
6
Copp filed this complaint in the District Court for the Central District of California against the oil companies, Sully-Miller, and Industrial, seeking injunctive relief and treble damages.3 The complaint, as amended, alleged that the various defendants had committed a catalog of antitrust violations with respect to both the asphalt oil and asphaltic concrete markets. Claiming harm to itself as a consumer of liquid asphalt, Copp alleged: that the defendants had fixed prices and allocated the asphalt oil market geographically, in violation of § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. § 1; that they had sold liquid asphalt at discriminatory prices to Copp and other purchasers, in violation of § 2(a) of the Robinson-Patman Act; and that Gulf Oil had violated § 7 of the Clayton Act by acquiring Industrial. Also claiming harm to itself as a competitor in the asphaltic concrete market, Copp further alleged: that the defendants had fixed prices, divided the market geographically, and employed various methods of monopolizing and attempting to gain a monopoly in the Los Angeles area market, in violation of §§ 1 and 2 of the Sherman Act; that, in violation of § 3 of the Clayton Act, Industrial and Sully-Miller had conditioned sales of asphaltic concrete in areas where Copp did not compete on customers' agreeing to buy only from the defendants in areas where Copp did compete, and had 'tied' sales of asphaltic concrete to sales of other commodities and to favorable extensions of credit; that, in violation of § 7 of the Clayton Act, Gulf Oil had acquired Industrial and Union Oil had acquired Sully-Miller, these acquisitions apparently having the effect of lessening competition in the Los Angeles asphaltic concrete market; and, finally, that Industrial and Sully-Miller had discriminated in the prices at which they sold asphaltic concrete, charging higher prices in areas where Copp did not compete, this in violation of § 2(a).
7
Because of the liquid asphalt claims, the case was one of the Western Liquid Asphalt cases transferred, pursuant to 28 U.S.C. § 1407, to the District Court for the Northern District of California for coordinated pretrial proceedings.4 The defendants thereafter moved for summary judgment in favor of Sully-Miller, against which Copp had alleged only violations arising from conduct in the asphaltic concrete market. The motion also sought to limit the issues as to the other defendants to those involving liquid asphalt.
8
The District Court ordered full discovery as to jurisdiction over Copp's asphaltic concrete claims. At the conclusion of discovery, Copp's jurisdictional showing rested solely on the fact that some of the streets and roads in the Los Angeles area are segments of the federal interstate highway system, and on a stipulation that a greater than de minimis amount of asphaltic concrete is used in their construction and repair. The District Court thereupon entered an order dismissing all claims against Sully-Miller and those claims against the other defendants involving the marketing of asphaltic concrete.
9
In its opinion accompanying this order the court explicitly discussed only the jurisdictional requirements of the Sherman Act.5 On the facts presented to it, the court found that asphaltic concrete is made wholly from components produced and purchased intrastate and that the product's market is exclusively and necessarily local. Because of these factors, the court concluded that the alleged restraints of trade in asphaltic concrete could not be deemed within the flow of interstate commerce, despite use of the product in interstate highways. Moreover, Copp had failed to show, either by deduction from the evidence or by the evidence itself, that the alleged restraints as to asphaltic concrete would affect any interstate market. It had neither shown a necessary or probable adverse consequence to the construction of interstate highways and hence to the flow of commerce, nor had it suggested or supported a theory by which restraints on local trade in asphaltic concrete affect the interstate liquid asphalt market. The court held that it lacked jurisdiction of Copp's asphaltic concrete claims under the Sherman Act and therefore that Copp also had failed to support jurisdiction under the Robinson-Patman and Clayton Acts.
10
On Copp's interlocutory appeal, 28 U.S.C. § 1292(b), the Ninth Circuit reversed, holding as to the Sherman Act claims 'that the production of asphalt for use in interstate highways rendered the producers 'instrumentalities' of interstate commerce and placed them 'in' that commerce as a matter of law.' 487 F.2d, at 204. Having so concluded, the court held that jurisdiction properly attached to Copp's Clayton and Robinson-Patman Act claims as well, since those Acts were intended to supplement the purpose and effect of the Sherman Act. Id., at 205—206.6
11
We granted certiorari, despite the interlocutory character of the Ninth Circuit's judgment, because of the importance of the issues both to this litigation and to proper interpretation of the jurisdictional reach of the antitrust laws, and because of ostensible conflicts with decisions of other circuits.7 We limited the grant, however, to the questions arising under the Clayton and Robinson-Patman Acts.8 415 U.S. 988, 94 S.Ct. 1586, 39 L.Ed.2d 885 (1974).
II
12
The text of each of the statutory provisions involved here is set forth in the margin.9 In brief, § 2(a) of the Robinson-Patman Act forbids 'any person engaged in commerce, in the course of such commerce' to discriminate in price 'where either or any of the purchases involved in such discrimination are in commerce' and where the discrimination has substantial anticompetitive effects 'in any line of commerce.' Section 3 of the Clayton Act makes it unlawful 'for any person engaged in commerce, in the course of such commerce' to make tie-in sales or enter exclusive-dealing arrangements, where the effect 'may be to substantially lessen competition or tend to create a monopoly in any line of commerce.' Section 7 of the Clayton Act forbids certain acquisitions by a corporation 'engaged in commerce' of the assets or stock 'of another corporation engaged also in commerce,' where the effect may be substantially to lessen competition 'in any line of commerce in any section of the country.'
13
The explicit reach of these provisions extends only to persons and activities that are themselves 'in commerce,' the term 'commerce' being defined in § 1 of the Clayton Act, insofar as relevant here, as 'trade or commerce among the several States and with foreign nations . . ..' 15 U.S.C. § 12. This 'in commerce' language differs distinctly from that of § 1 of the Sherman Act, which includes within its scope all prohibited conduct 'in restraint of trade or commerce among the several States, or with foreign nations . . ..' The jurisdictional reach of § 1 thus is keyed directly to effects on interstate markets and the interstate flow of goods. Moreover, our cases have recognized that in enacting § 1 Congress 'wanted to go to the utmost extent of its Constitutional power in restraining trust and monopoly agreements . . ..' United States v. South-Eastern Underwriters Assn., 322 U.S. 533, 558, 64 S.Ct. 1162, 1176, 88 L.Ed. 1440 (1944). Consistently with this purpose and with the plain thrust of the statutory language, the Court has held that, however local its immediate object, a 'contract, combination . . . or conspiracy' nonetheless may constitute a restraint within the meaning of § 1 if it substantially and adversely affects interstate commerce. E.g., Mandeville Island Farms v. American Crystal Sugar Co., 334 U.S. 219, 234, 68 S.Ct. 996, 1005, 92 L.Ed. 1328 (1948). 'If it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze.' United States v. Women's Sportswear Mfrs. Assn., 336 U.S. 460, 464, 69 S.Ct. 714, 716, 93 L.Ed. 805 (1949).
14
In contrast to § 1, the distinct 'in commerce' language of the Clayton and Robinson-Patman Act provisions with which we are concerned here appears to denote only persons or activities within the flow of interstate commerce—the practical, economic continuity in the generation of goods and services for interstate markets and their transport and distribution to the consumer. If this is so, the jurisdictional requirements of these provisions cannot be satisfied merely by showing that allegedly anticompetitive acquisitions and activities affect commerce. Unless it appears (i) that Sully-Miller engages in interstate commercial activities (§ 7), (ii) that Industrial's alleged exclusive-dealing arrangements and discriminatory sales occur in the course of its interstate activities (§§ 2(a) and 3), and (iii) that at least one of Industrial's allegedly discriminatory sales was made in interstate commerce (§ 2(a)), Copp's claims must fail.
15
Copp argues, and the Court of Appeals for the Ninth Circuit agreed, that it had made exactly this sort of 'in commerce' showing. Copp does not contend that Industrial and Sully-Miller in fact make interstate asphaltic concrete sales or are otherwise directly involved in national markets. Cf. United States v. Philadelphia National Bank, 374 U.S. 321, 336, 83 S.Ct. 1715, 1726, 10 L.Ed.2d 915 n. 12 (1963). Nor does it contend that the local market in asphaltic concrete is an integral part of the interstate market in other component commodities or products. Instead, Copp's 'in commerce' argument turns entirely on the use of asphaltic concrete in the construction of interstate highways.
16
In support of this argument, Copp relies primarily on cases decided under the Fair Labor Standards Act.10 In the first of these, Overstreet v. North Shore Corp., 318 U.S. 125, 63 S.Ct. 494, 87 L.Ed. 656 (1943), the Court held that because interstate roads and railroads are indispensable instrumentalities of interstate commerce, employees engaged in the construction or repair of such roads are employees 'in commerce' to whom, by its terms, the Fair Labor Standards Act extends. Subsequently in Alstate Construction Co. v. Durkin, 345 U.S. 13, 73 S.Ct. 565, 97 L.Ed. 745 (1953), the Court held that since interstate highways are instrumentalities of commerce, employees engaged in the manufacture of materials used in their construction are properly deemed to be engaged 'in the production of goods for commerce,' within the meaning of that phrase in the Fair Labor Standards Act. Copp reasons that since the connection between manufacture of road materials and interstate commerce was enough for application of the Fair Labor Standards Act, it also should be sufficient to warrant invocation of the Clayton and Robinson-Patman Act provisions against sellers and sales of such materials.
17
But we are concerned in this case with significantly different statutes. As in Overstreet and Alstate, there is no question of Congress' power under the Commerce Clause to include otherwise ostensibly local activities within the reach of federal economic regulation, when such activities sufficiently implicate interstate commerce.11 The question, rather, is how far Congress intended to extend its mandate under the Clayton and Robinson-Patman Acts.12 The answer depends on the statutory language, read in light of its purposes and legislative history. See FTC v. Bunte Bros., 312 U.S. 349, 61 S.Ct. 580, 85 L.Ed. 881 (1941).
18
Congress has deemed interstate highways critical to the national economy and has authorized extensive federal participation in their financing and regulation. Nothing, however, in the Federal-Aid Highway Act13 or other legislation evinces an intention to apply the full range of antitrust laws to persons who, as part of their local business, supply materials used in construction of local segments of interstate roads. Nor does the fact that interstate highways are instrumentalities of commerce somehow render the suppliers of materials instrumentalities of commerce as well, in the sense used in Overstreet. No different conclusion can be drawn from Alstate. The statute involved there explicitly reached persons employed 'in the production of goods for commerce.' Congress could and, according to the Court in Alstate, did find that the federal concerns embodied in the Fair Labor Standards Act required its application to employees producing materials for use in interstate highways. But neither this nor the Court's holding in Alstate places such employees, or the sellers and sales of such materials, 'in commerce' as a matter of law for purposes of the Clayton and Robinson-Patman Acts.
19
Copp's 'in commerce' argument rests essentially on a purely formal 'nexus' to commerce: the highways are instrumentalities of interstate commerce; therefore any conduct of petitioners with respect to an ingredient of a highway is per se 'in commerce.' Copp thus would have us expand the concept of the flow of commerce by incorporating categories of activities that are perceptibly connected to its instrumentalities. But whatever merit this categorical inclusion-and-exclusion approach may have when dealing with the language and purposes of other regulatory enactments, it does not carry over to the context of the Robinson-Patman and Clayton Acts. The chain of connection has no logical endpoint. The universe of arguably included activities would be broad and its limits nebulous in the extreme. See Alstate Construction Co. v. Durkin, supra, 345 U.S. at 17—18, 73 S.Ct. at 567—568 (Douglas, J., dissenting). More importantly, to the extent that those limits could be defined at all, the definition would in no way be anchored in the economic realities of interstate markets, the intensely practical concerns that underlie the purposes of the antitrust laws. See United States v. Yellow Cab Co., supra, 332 U.S. 218, 231, 67 S.Ct. 1560, 1567, 91 L.Ed. 2010 (1947).
20
In short, assuming, arguendo, that the facially narrow language of the Clayton and Robinson-Patman Acts was intended to denote something more than the relatively restrictive flow-of-commerce concept, we think the nexus approach would be an irrational way to proceed. The justification for an expansive interpretation of the 'in commerce' language, if such an interpretation is viable at all, must rest on a congressional intent that the Acts reach all practices, even those of local character, harmful to the national marketplace. This justification, however, would require courts to look to practical consequences, not to apparent and perhaps nominal connections between commerce and activities that may have no significant economic effect on interstate markets. We hold, therefore, that Sully-Miller's and Industrial's sales to interstate highway contractors are not sales 'in commerce' as a matter of law within the jurisdictional ambit of Robinson-Patman Act § 2(a) and Clayton Act §§ 3 and 7.
III
21
Our rejection of the 'nexus to commerce' theory requires that the Ninth Circuit's judgment be reversed. Copp also advances, somewhat obliquely, a second theory to support that judgment. It contends that, despite the facially narrow 'in commerce' language of the Robinson-Patman and Clayton Act provisions, Congress intended those provisions to manifest the full degree of its commerce power. Therefore, it is argued, the language should not be limited to the flow-of-commerce concept defined by this Court and other courts, but rather should be held to extend, as does § 1 of the Sherman Act, to all persons and activities that have a substantial effect on interstate commerce. We find this theory equally unavailing on the record here.
A.
22
As to § 2(a) of the Robinson-Patman Act at least, the extraordinarily complex legislative history fails to support Copp's argument. When the Patman bill was passed by the House, it contained, in addition to the present narrow language of § 2(a), the following provision:
23
'(I)t shall also be unlawful for any person, whether in commerce or not, either directly or indirectly, to discriminate in price between different purchasers . . . where . . . such discrimination may substantially lessen competition . . ..'14
24
The Conference Committee, however, deleted this 'effects on commerce' provision, leaving only the 'in commerce' language of § 2(a).15 Whether Congress took this action because it wanted to reach only price discrimination in interstate markets or because of its then understanding of the reach of the commerce power,16 its action strongly militates against a judgment that Congress intended a result that it expressly declined to enact. Moreover, even if the legislative history were ambiguous, the courts in nearly four decades of litigation have interpreted the statute in a manner directly contrary to an 'effects on commerce' approach. With almost perfect consistency, the Courts of Appeals have read the language requiring that 'either or any of the purchases involved in such discrimination (be) in commerce' to mean that § 2(a) applies only where "at least one of the two transactions which, when compared, generate a discrimination . . . cross(es) a state line."17 In the face of this longstanding interpretation and the continued congressional silence, the legislative history does not warrant our extending § 2(a) beyond its clear language to reach a multitude of local activities that hitherto have been left to state and local regulation. See FTC v. Bunte Bros., 312 U.S. 349, 61 S.Ct. 580, 85 L.Ed. 881 (1941).
B
25
With respect to §§ 3 and 7 of the Clayton Act, the situation is not so clear. Both provisions were intended to complement the Sherman Act and to facilitate achievement of its purposes by reaching, in their incipiency, acts and practices that promise, in their full growth, to impair competition in interstate commerce. E.g., United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 589, 77 S.Ct. 872, 875, 1 L.Ed.2d 1057 (1957); Standard Fashion Co. v. Magrane-Houston Co., 258 U.S. 346, 42 S.Ct. 360, 66 L.Ed. 653 (1922). The United States argues in its amicus brief that, given this purpose, the 'in commerce' language or §§ 3 and 7 should be seen as no more than a historical anomaly. When these sections were originally enacted, it was thought that Congress' Commerce Clause power reached only those subjects within the flow of commerce, then defined rather narrowly by the Court. Thus, it is argued, the 'in commerce' language was thought to be coextensive with the reach of the Commerce Clause and to bring within the ambit of the Act all activities over which Congress could exercise its constitutional authority. Since passage of the Act, this Court's decisions have read Congress' power under the Commerce Clause more expansively, extending it beyond the flow of commerce to all activities having a substantial effect on interstate commerce. See Mandeville Island Farms v. American Crystal Sugar Co., 334 U.S., at 229—233, 68 S.Ct., at 1002—1005. The United States concludes that the scope of the Clayton Act, like that of the Sherman Act, should be held to have expanded correspondingly, both because of Congress' clear intention to reach as far as it could and because Congress' purpose to foster competition in interstate commerce could not otherwise wholly be achieved.
26
This argument from the history and practical purposes of the Clayton Act is neither without force nor without at least a measure of support.18 But whether it would justify radical expansion of the Clayton Act's scope beyond that which the statutory language defines—expansion, moreover, by judicial decision rather than amendatory legislation—is doubtful. In any event, this case does not present an occasion to decide the question. Even if the Clayton Act were held to extend to acquisitions and sales having substantial effects on commerce, a court cannot presume that such effects exist. The plaintiff must alleged and prove that apparently local acts in fact have adverse consequences on interstate markets and the interstate flow of goods in order to invoke federal antitrust prohibitions. See United States v. Yellow Cab Co., 332 U.S., at 230—234, 67 S.Ct., at 1566—1568.
27
Copp was allowed full discovery as to all interstate commerce issues. It relied primarily on the nexus theory rejected above, and presented no evidence of effect on interstate commerce. Instead it argued merely that such effects could be presumed from the use of asphaltic concrete in interstate highways. The District Court concluded, on the basis of the record before it, that petitioners' alleged antitrust violations had no 'substantial impact on interstate commerce.'19 There may be circumstances in which activities, like those of Sully-Miller and Industrial, would have such effects on commerce. On the record in this case, however, the conclusion of the District Court that no such circumstances existed here cannot be considered erroneous. This being so, the 'effects on commerce' theory, even if legally correct, must fail for want of proof.
The judgment of the Court of Appeals is
28
Reversed.
29
Mr. Justice MARSHALL, concurring.
30
I join in the judgment and opinion of the Court, with one qualification. Part III B of the opinion correctly notes that we have no occasion today to pass upon the applicability of the Clayton Act to activities having a substantial effect on commerce although not 'in commerce,' since no such effects are present in this case. For the same reason, we ought not to characterize the construction offered by the United States as a 'radical expansion of the Clayton Act's scope.' As the Court itself says, 'the situation is not so clear.' Until the issue is properly presented by a case requiring its resolution, I would express no opinion on it.
31
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN joins, dissenting.
32
I suppose it would be conceded that if one person or company acquired all the asphaltic concrete plants in the United States, there might well be a violation of § 2 of the Sherman Act, which makes unlawful a monopoly of 'any part of the trade or commerce among the several States.' 26 Stat. 209, as amended 15 U.S.C. § 2. Moreover, even though their sales were all intrastate, they would come within the ban of § 1 of the Sherman Act, if they substantially affected interstate commerce. For in the Sherman Act, we held, 'Congress wanted to go to the utmost extent of its Constitutional power in restraining trust and monopoly agreements . . ..' United States v. South-Eastern Underwriters Assn., 322 U.S. 533, 558, 64 S.Ct. 1162, 1176, 88 L.Ed. 1440 (1944).
33
While the Clayton Act modified the Sherman Act by restricting possible application of the antitrust laws to labor unions,1 and by expanding the scope of those laws to cover the aggregation of economic power through stock acquisitions,2 there is not a word to suggest that when Congress defined the term 'commerce' it desired to contract the scope of that term.3 The legislative history does not furnish even a bare suggestion or inference that 'commerce' under the Clayton Act meant something less than it meant under the Sherman Act. The Clayton Act became the law in 1914; and prior to that time the Court had held over and over against that acts or conduct wholly intrastate might be 'in restraint of trade or commerce' as that phrase was used in the Sherman Act. Swift & Co. v. United States, 196 U.S. 375, 397, 25 S.Ct. 276, 49 L.Ed. 518 (1905); United States v. Patten, 226 U.S. 525, 541—543, 33 S.Ct. 141, 144 145, 57 L.Ed. 333 (1913). These holdings were reflected in the 'affecting commerce' standard of the Shreveport Rate Cases, Houston & Texas R. Co. v. United States, 234 U.S. 342, 353—355, 34 S.Ct. 833, 837—838, 58 L.Ed. 1341 (1914). The primary definition of commerce, for Clayton Act purposes, is 'trade or commerce among the several States.'4 In the years just preceding passage of that Act, this Court had held on several occasions that the phrase 'among the several states' embraces all commerce save that 'which is confined to a single state and does not affect other states.' Second Employers' Liability Cases, 223 U.S. 1, 46—47, 32 S.Ct. 169, 173, 56 L.Ed. 327 (1912) (emphasis added); The Minnesota Rate Cases, 230 U.S. 352, 398—399, 33 S.Ct. 729, 739—740, 57 L.Ed. 1511 (1913). In applying the Clayton Act prohibitions to persons and corporations 'engaged in commerce (among the several States),' Congress thus may reasonably be said to have intended to reach persons or corporations whose activities, while wholly intrastate in nature, affect other States through their effects on interstate commerce.
34
The holding in Transamerica Corp. v. Board of Governors, 206 F.2d 163, 166 (CA3 1953), that Congress, when it enacted the Clayton Act, desired 'to exercise its power under the commerce clause of the Constitution to the fullest extent,' has nothing to rebut it. Congress apparently was not as timorous as the present Court in moving against centers of economic power and practices that aggrandize it. Heretofore that is the way we have read the Clayton Act: that Act was intended to complement the Sherman Act by regulating in their incipiency actions which might irreparably damage competition before reaching the level of actual restraint proscribed by the Sherman Act, and, in the absence of some indication of legislative intent to the contrary, we should not lightly assume that Congress intended to undercut that complementary function by circumscribing the jurisdictional reach of the Clayton Act more narrowly than that of the Sherman Act.5 See United States v. Penn-Olin Chemical Co., 378 U.S. 158, 170—171, 84 S.Ct. 1710, 1716—1717, 12 L.Ed.2d 775 (1964); United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 589, 597, 77 S.Ct. 872, 875, 879, 1 L.Ed.2d 1057 (1957); Standard Fashion Co. v. Magrane-Houston Co., 258 U.S. 346, 355 356, 42 S.Ct. 360, 362, 66 L.Ed. 653 (1922); S.Rep. No. 698, 63d Cong., 2d Sess., 1 (1914). And that is the way in which we assumed that the Celler-Kefauver Act in 1950, 64 Stat. 1125, 15 U.S.C. § 18, addressed itself to the problem. For we said in Brown Shoe Co. v. United States, 370 U.S. 294, 315—323, 82 S.Ct. 1502, 1518—1523, 8 L.Ed.2d 510 (1962), that the legislative history showed congressional concern over the 'desirability of retaining 'local control' over industry and the protection of small businesses.' Id., at 315—316, 82 S.Ct. at 1519. One dramatic way of leveling local business is pulling it into a vast interstate business regime of the nature alleged in this complaint.
35
* I agree with the court below that jurisdiction may be sustained on an 'in commerce' theory.6 Clayton Act §§ 3 and 7 apply to persons or corporations 'engaged in commerce'; we have held, in a line of cases arising under the Fair Labor Standards Act (FLSA), 52 Stat. 1060, as amended, 29 U.S.C. § 201 et seq., that persons or enterprises engaged in building or repairing toll roads, bridges, and canal locks are 'engaged in commerce' and therefore within the reach of the commerce power, by virtue of their relationship to indispensable instrumentalities of our system of interstate commerce. Mitchell v. C. W. Vollmer & Co., 349 U.S. 427, 75 S.Ct. 860, 99 L.Ed. 1196 (1955); Fitzgerald Const. Co. v. Pedersen, 324 U.S. 720, 65 S.Ct. 892, 89 L.Ed. 1316 (1945); Overstreet v. North Shore Corp., 318 U.S. 125, 63 S.Ct. 494, 87 L.Ed. 656 (1943). It is true, as the majority notes, that the FLSA and the antitrust laws are different statutes, but the critical difference between the statutes arises in an area which in no way weakens the applicability of the FLSA cases to the present inquiry.
36
In the FLSA and in many other regulatory enactments, Congress itself has determined that certain classes of activities have a sufficient impact upon interstate commerce to warrant regulation of the entire class, regardless of whether an individual instance of the activity in question can be shown to be in or to affect commerce. See generally Perez v. United States, 402 U.S. 146, 152 154, 91 S.Ct. 1357, 1360—1362, 28 L.Ed.2d 686 (1971); United States v. Darby, 312 U.S. 100, 119—121, 61 S.Ct. 451, 459—461, 85 L.Ed. 609 (1941). The FLSA represents such a congressional determination with respect to the payment of wages below a specified level and with respect to employment exceeding a specified number of hours per week (under specified conditions). 29 U.S.C. §§ 206, 207. Once either of these practices is found to exist with respect to an employer or employee covered by the FLSA, the regulatory provisions of that Act are called into play without further inquiry into the possible effect of the individual employer's practices on interstate commerce.
37
In the antitrust laws, Congress has provided a different sort of treatment. The Sherman Act broadly prohibits practices in restraint of trade or commerce, and the Clayton and Robinson-Patman Acts bar price discrimination, tie-ins, and corporate stock or assets acquisitions where 'the effect of' such practices 'may be substantially to lessen competition or tend to create a monopoly in any line of commerce.' The finding that a person or corporation is covered by these Acts does not trigger automatic application of the regulatory prohibition; instead, a court must go on to make an individualized determination of the actual or potential impact of that particular person's or corporation's activities on competition or on interstate commerce.7
38
It is in this respect that the antitrust laws differ from the FLSA and other regulatory enactments. The present case, however, does not turn on that difference, because it does not raise the issue of whether the actions of the named defendants had a sufficiently adverse effect on interstate commerce to make out a violation of the antitrust laws; that issue goes to the merits of Copp's claims, and cannot properly be reached at this stage. Instead, the case as now presented raises the threshold issue of whether the named defendants are within the jurisdictional reach of the antitrust laws, and our inquiry on that point does not differ significantly from our inquiry under the FLSA or any other regulatory statute. The FLSA covers employers of employees 'engaged in commerce or in the production of goods for commerce'; the Clayton Act and Robinson-Patman Act provisions at issue here cover persons or corporations 'engaged in commerce.' We have held, in FLSA and Federal Employers' Liability Act (FELA) cases, that Congress' use of the phrase 'engaged in commerce' is sufficiently broad to reach employees engaged in repairing highways or in carrying bolts to be used for bridge repairs, Overstreet v. North Shore Corp., supra; in light of the purposes of the Clayton Act, I see no reason why the phrase 'engaged in commerce' as used in that Act should not be read equally broadly, and should not thereby be deemed sufficient to reach corporations engaged in building highways or in producing and supplying the very materials used in such construction. As the Court of Appeals aptly noted: 'Regulation of business practices through the antitrust laws . . . may justifiably reach further than some other types of regulation because the antitrust laws are concerned directly with aiding the flow of commerce.' 487 F.2d 202, 204 (1973).
II
39
An alternative ground for affirming the judgment below, likewise rejected by the majority, is that the Clayton Act's 'engaged in commerce' jurisdictional language is sufficiently broad to encompass corporations which are not in the flow of commerce itself but which, through their activities, affect commerce. For the reasons stated in the introductory portion of this opinion, I, for one, am persuaded that Clayton Act §§ 3 and 7 are as broad as the Sherman Act in this respect. The majority expressly disclaims any intent to resolve that issue on the ground that Copp has failed to produce any 'proof' of such effects, and is therefore not entitled to continue this suit even under a broad reading of the jurisdictional phrase; in my view, the burden of proof which the Court thereby imposes upon Copp is one which may not properly be imposed at this stage of the litigation.
40
The complaint alleges the acquisition by Gulf of named companies with the purpose and effect of creating a monopoly under the Sherman Act and likewise substantially lessening competition and creating a monopoly in violation of § 7 of the Clayton Act. Like allegations are made respecting certain acquisitions of Union Oil. Allegations are made that the petitioners divide the geographic areas of competition for the purpose of eliminating competition. The petitioners are alleged to indulge in tie-in practices, whereby base rock material would be sold substantially more cheaply to contractors who buy their asphaltic concrete from the named petitioners. The complaint alleges that the petitioners have maintained high prices in areas where there is no competition and that where competition exists, they sell their products at artificially low prices—below cost—and that that is the practice of petitioners where they compete with Copp. Thus, violations of the Sherman Act, Clayton Act, and Robinson-Patman Act are alleged.
41
There has been no trial. The case was disposed of on pleadings and affidavits. The District Judge ordered discovery so that all the parties could 'develop the facts bearing upon the question of whether the alleged conspiracy was one affecting interstate commerce.' At the end of the time allotted for discovery, the District Court ruled that 'the local activities of the defendants with regard to asphaltic concrete did not have a substantial impact on interstate commerce,' and as respects one of the defendants (who is not a party in the case now before us) granted its motion for summary judgment.8
42
The Court of Appeals speaking through Judge Alfred T. Goodwin said—properly, I think:
43
'Nor can we accept defendants' argument that the plaintiffs must show not only that the parties and sales are 'in' commerce but must show that competition was injured before the court has jurisdiction. This is the result of confusing the substantive with the jurisdictional requirements of the antitrust laws. It is not necessary for a plaintiff to prove his whole case in order to give the courts jurisdiction to hear it.' 487 F.2d, at 206.
44
The allegations and the complaint plainly gave the District Court jurisdiction.9 What a trial on the merits might produce no one knowns. The District Judge said: 'I conclude that the local activities of the defendants with regard to asphaltic concrete did not have a substantial impact on interstate commerce.' That could not possibly be said until at least the plaintiffs had offered their proof; yet, as the Court of Appeals said, the plaintiffs need not prove, on a motion that goes to the jurisdiction of the court, the merits of their case in order to obtain an opportunity to try it.10
1
Hereafter, for simplicity, cited as § 2(a) of the Robinson-Patman Act.
1a
Respondents are collectively referred to hereinafter as 'Copp.'
2
Although Industrial's Nevada hot plant is sufficiently close to the California and Arizona borders to allow sales and deliveries to those States, Industrial has disavowed such sales, without contradiction. App. 117.
3
15 U.S.C. § 15.
4
In re Western Liquid Asphalt, 303 F.Supp. 1053 (Jud.Pan.Mult.Lit.1969); In re Western Liquid Asphalt, 309 F.Supp. 157 (Jud.Pan.Mult.Lit.1970). As explained infra, the case here concerns only asphaltic concrete, not liquid asphalt.
5
1972 CCH Trade Cases 74,013.
The court held the asphalt oil claims against the oil companies and Industrial within its jurisdiction because of the interstate character of that market. That ruling is not before us.
6
The court reserved the question of summary judgment in favor of defendant Sully-Miller, holding that question not properly before in under Fed.Rule Civ.Proc. 54(b).
7
28 U.S.C. § 1254(1). See Hawaii v. Standard Oil Co. of California, 405 U.S. 251, 92 S.Ct. 885, 31 L.Ed.2d 184 (1972).
8
Because of our limited grant and because of the Ninth Circuit's reservation of judgment as to Sully-Miller, see n. 6, supra, Union Oil and Industrial are the only defendants who have participated in argument here.
9
Robinson-Patman Act, § 2(a), Act of June 19, 1936, c. 592, 49 Stat. 1526, 15 U.S.C. § 13(a):
'It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce . . . where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce . . ..'
Clayton Act, Act of Oct. 15, 1914, c. 323, 38 Stat. 730, as amended:
Section 3 (15 U.S.C. § 14):
'It shall be unlawful for any person engaged in commerce, in the course of such commerce, to lease or make a sale or contract for sale of goods, wares, merchandise, machinery, supplies, or other commodities . . . on the condition, agreement, or understanding that the lessee or purchaser thereof shall not use or deal in the goods, wares, merchandise, machinery, supplies, or other commodities of a competitor or competitors of the lessor or seller, where the effect of such lease, sale, or contract for sale or such condition, agreement, or understanding may be to substantially lessen competition or tend to create a monopoly in any line of commerce.'
Section 7 (15 U.S.C. § 18):
'No corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital . . . of another corporation engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly. . . .'
10
52 Stat. 1060, as amended, 29 U.S.C. § 201 et seq.
11
E.g., Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 249—258, 85 S.Ct. 348, 353—358, 13 L.Ed.2d 258 (1964).
12
The jurisdictional inquiry under general prohibitions like these Acts and § 1 of the Sherman Act, turning as it does on the circumstances presented in each case and requiring a particularized judicial determination, differs significantly from that required when Congress itself has defined the specific persons and activities that affect commerce and therefore require federal regulation. Compare United States v. Yellow Cab Co., 332 U.S. 218, 232—233, 67 S.Ct. 1560, 1567—1568, 91 L.Ed. 2010 (1947), with, e.g., Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971); Maryland v. Wirtz, 392 U.S. 183, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968); and Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964).
13
23 U.S.C. § 101 et seq.
14
H.R. 8442, 74th Cong., 2d Sess. (1936) (emphasis added).
15
H.R.Conf.Rep.No.2951, 74th Cong., 2d Sess. (1936).
16
Compare F. Rowe, Price Discrimination under the Robinson-Patman Act 77—83 (1962) with Note, Restraint of Trade Robinson-Patman Act, 86 Harv.L.Rev. 765, 770—772 (1973).
17
Hiram Walker, Inc. v. A & § Tropical, Inc., 407 F.2d 4, 9 (CA5), cert. denied, 396 U.S. 901, 90 S.Ct. 212, 24 L.Ed.2d 177 (1969); Belliston v. Texaco, Inc., 455 F.2d 175, 178 (CA10), cert. denied, 408 U.S. 928, 92 S.Ct. 2494, 33 L.Ed.2d 341 (1972).
No decision of this Court implies any contrary approach. In Moore v. Mead's Fine Bread Co., 348 U.S. 115, 75 S.Ct. 148, 99 L.Ed. 145 (1954), the plaintiff sold bread locally, in competition with Mead's a firm with bakeries in several States. Moore alleged that Mead's sold bread in his town at a price lower than that which it charged for bread delivered from its in-state plant to customers in an adjoining State. The Tenth Circuit held that Mead's activities were essentially local, and that if § 2(a) applied to them it would exceed Congress' commerce power. The Court (Douglas, J.) unanimously reversed, stating that Congress clearly has power to reach the local activities of a firm that finances its predatory practices through multistate operations. This language, however, spoke to the commerce power rather than to jurisdiction under § 2(a). In fact, Mead's did have interstate sales and its price discrimination thus fell within the literal language of the statute.
18
See Standard Oil Co. of California and Standard Stations v. United States, 337 U.S. 293, 314—315, 69 S.Ct. 1051, 1062—1063, 93 L.Ed. 1371 (1949).
19
1972 CCH Trade Cases 74—013, p. 92,208. Copp makes no specific objection here to the District Court's use of summary judgment procedure, see Brief for Respondents 11—12, nor to the form of the judgment. Moreover, there is no indication that Copp was foreclosed from presenting all available evidence concerning the interstate commerce issues, at least as to §§ 3 and 7. Cf. McBeath v. Inter-American Citizens for Decency Committee, 374 F.2d 359, 363 (CA5 1967). In any event, assuming that the interstate commerce requirements of §§ 3 and 7 are properly deemed issues of subject-matter jurisdiction, rather than simply necessary elements of the federal claims, cf., e.g., United States v. Employing Plasterers Assn., 347 U.S. 186, 74 S.Ct. 452, 456, 98 L.Ed. 618 (1954); Mandeville Island Farms v. American Crystal Sugar Co., 334 U.S. 219, 68 S.Ct. 996, 92 L.Ed. 1328 (1948); 5 J. Moore, Federal Practice 38.36(2.—2), p. 299 (2d ed. 1974), there is, as the dissenting opinion by Mr. Justice Douglas notes, an identity between the 'jurisdictional' issues and certain issues on the merits, and hence, under Land v. Dollar, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947), no objection to reserving the jurisdictional issues until a hearing on the merits. By the same token, however, there is no objection to use, in appropriate cases, of summary judgment procedure to determine whether there is a genuine issue of material fact as to the interstate commerce elements.
1
38 Stat. 731, 15 U.S.C. § 17. See H.R.Rep.No.627, 63d Cong., 2d Sess., 14—16 (1914); United States v. Hutcheson, 312 U.S. 219, 61 S.Ct. 463, 85 L.Ed. 788 (1941).
2
15 U.S.C. § 18; H.R.Rep.No.627, supra, at 17. See also United States v. Penn-Olin Chemical Co., 378 U.S. 158, 170—171, 84 S.Ct. 1710, 1716—1717, 12 L.Ed.2d 775 (1964); United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 597, 77 S.Ct. 872, 879, 1 L.Ed.2d 1057 (1957).
3
The definition of 'antitrust laws' as used in the Clayton Act includes the Sherman Act. 15 U.S.C. § 12. The definition of 'commerce' was actually 'broadened so as to include trade and commerce between any insular possessions or other places under the jurisdiction of the United States, which at present do not come within the scope of the Sherman antitrust law or other laws relating to trusts.' H.R.Rep.No.627, supra, at 7.
The Sherman Act declares illegal every contract, combination, or conspiracy 'in restraint of trade or commerce among the several States . . ..' 15 U.S.C. § 1. It also makes a misdemeanor a monopoly of 'any part of the trade or commerce among the several States . . ..' 15 U.S.C. § 2.
4
'Commerce' as used in the Clayton Act is defined in § 1 as follows:
"Commerce,' as used herein, means trade or commerce among the several States and with foreign nations, or between the District of Columbia or any Territory of the United States and any State, Territory, or foreign nation, or between any insular possessions or other places under the jurisdiction of the United States, or between any such possession or place and any State or Territory of the United States or the District of Columbia or any foreign nation, or within the District of Columbia or any Territory or any insular possession or other place under the jurisdiction of the United States.' 15 U.S.C. § 12.
5
Indeed, we would have to sit as a Committee of Revision over Congress, shaping the law to fit our prejudices against antitrust regulations, to hold that 'in commerce' as used in the Clayton Act was intended to provide less comprehensive coverage than the language of the Sherman Act. Prior to passage of the Clayton Act, labor union practices had been held by this Court to affect commerce and thus to fall within the reach of the Sherman Act, despite the fact that the union activities could not be regarded as being in the flow of commerce. Loewe v. Lawlor, 208 U.S. 274, 300—301, 28 S.Ct. 301, 308—310, 52 L.Ed. 488 (1908). See also Teamsters Local 167, etc. v. United States, 291 U.S. 293, 297, 54 S.Ct. 396, 398, 78 L.Ed. 804 (1934); Apex Hosiery Co. v. Leader, 310 U.S. 469, 60 S.Ct. 982, 84 L.Ed. 1311 (1940); United States v. Employing Plasterers Assn., 347 U.S. 186, 189, 74 S.Ct. 452, 454, 98 L.Ed. 618 (1954). If the Court is right today in saying that 'in commerce' as used in the Clayton Act is to be read more restrictively than the Sherman Act, then those who drafted the Clayton Act (including Louis D. Brandeis) to protect labor were needlessly concerned—no express exemption of labor would have been necessary, since the 'in commerce' language of the Clayton Act (if narrowly read) would not have supported judicial attempts to reach labor activities on an 'affecting commerce' theory. The drafters obviously thought otherwise.
6
The decision of the Court of Appeals on the Sherman Act issue, which remains intact by virtue of our limited grant of certiorari, held that petitioners and their alleged activities were sufficiently 'in commerce' to support Sherman Act jurisdiction. 487 F.2d 202, 205 (1973). The majority now holds, however, that petitioners and their alleged activities were not sufficiently 'in commerce' to support Clayton and Robinson-Patman Act coverage. In light of the latter holding, it is difficult to imagine the reception that Copp's Sherman Act claims will receive on remand.
7
Of course, in a limited range of Sherman Act cases, this Court has held that certain practices are per se violations of the antitrust laws; that is to say, these practices are conclusively presumed to be illegal without the need for any particularized inquiry into their effects. See generally White Motor Co. v. United States, 372 U.S. 253, 259—262, 83 S.Ct. 696, 699—701, 9 L.Ed.2d 738 (1963), and cases collected therein. These cases may be viewed as limited exceptions to the individualized approach described in the text above.
8
Federal Rule Civ.Proc. 56 'deals with the merits' of a claim and if in favor of the defendant is 'in bar and not in abatement,' 6 J. Moore, Federal Practice 56.03, p. 2051 (2d ed. 1974). Lack of jurisdiction of the court is a matter in abatement and thus is not usually appropriate for a summary judgment, which is not a substitute for a motion to dismiss for want of jurisdiction. Id., at 2052—2053.
On the general propriety of discovery orders of this sort, see 4 id., 26.56(6); but '(t)here are cases . . . in which the jurisdictional questions are so intertwined with the merits that the court might prefer to reserve judgment on the jurisdiction until after discovery has been completed.' Id., at 26—191. See also the discussion in n. 10, infra.
9
The issue of whether there is subject-matter jurisdiction raises the question whether the complaint, on its face, asserts a non-frivolous claim 'arising under' federal law. Baker v. Carr, 369 U.S. 186, 199—200, 82 S.Ct. 691, 700—701, 7 L.Ed.2d 663 (1962); Bell v. Hood, 327 U.S. 678, 682—683, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946). If such a claim is stated, the District Court is then empowered to assume jurisdiction and to determine whether the claim is good or bad, on the basis of a motion to dismiss for failure to state a claim or cause of action. Romero v. International Terminal Operating Co., 358 U.S. 354, 359, 79 S.Ct. 468, 473, 3 L.Ed.2d 368 (1959); Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 249, 71 S.Ct. 692, 694, 95 L.Ed. 912 (1951). Such a dismissal is on the merits, not for want of jurisdiction. Bell v. Hood, supra.
10
It is sometimes said that where the district court's jurisdiction is challenged, that court has the power, either on its own motion or on motion of a party, to inquire into the facts as they exist for purposes of resolving the jurisdictional issue. Land v. Dollar, 330 U.S. 731, 735, 67 S.Ct. 1009, 91 L.Ed. 1209 n. 4 (1947), and cases cited; Local 336, American Federation of Musicians v. Bonatz, 475 F.2d 433, 437 (CA3 1973). On the other hand, if the jurisdictional issue is closely interwined with or dependent on the merits of the case, the preferred procedure is to proceed to a determination of the case on the merits. McBeath v. Inter-American Citizens for Decency Comm., 374 F.2d 359, 362—363 (CA5), cert. denied, 389 U.S. 896, 88 S.Ct. 216, 19 L.Ed.2d 214 (1967); Jaconski v. Avisun Corp., 359 F.2d 931, 935—936 (CA3 1966).
The cases cited for the proposition that a district court may inquire into jurisdictional facts on a motion to dismiss for want of jurisdiction are cases in which the jurisdictional issue was whether the plaintiff met the amount-in-controversy requirement. That jurisdictional issue is sufficiently independent of the merits of the claim to warrant independent examination, if challenged. Where the jurisdictional issue is more closely linked to the merits, disposition of the jurisdictional issue on motion becomes inappropriate. Thus in Land v. Dollar, where the complaint alleged that members of the United States Maritime Commission were unlawfully holding shares of Dollar stock under a claim that the stock belonged to the United States, the District Court dismissed on the ground that the suit was against the United States. In affirming a reversal of that dismissal, the Court said: '(A)lthough as a general rule the District Court would have authority to consider questions of jurisdiction on the basis of affidavits as well as the pleadings, this is the type of case where the question of jurisdiction is dependent on decision of the merits.' 330 U.S., at 735, 67 S.Ct. at 1011. This was true because if the plaintiffs prevailed on either of their theories on the merits (that the Commission was without authority to acquire the shares, or that the contract was simply a pledge of the shares rather than an outright transfer), then they would also prevail on the jurisdictional issue. And in the McBeath case, supra, the Court of Appeals for the Fifth Circuit reversed a pretrial dismissal of a Sherman Act claim on grounds of lack of jurisdiction (for failure to show an effect on interstate commerce). Relying on Land v. Dollar, it held that the issue of effects on interstate commerce was so intertwined with the merits of the claim that it was error for the District Court to dismiss without giving the plaintiff a full chance to prove his case on the merits.
In cases such as United States v. Employing Plasterers Assn., 347 U.S. 186, 74 S.Ct. 452, 98 L.Ed. 618 (1954); Mandeville Island Farms v. American Crystal Sugar Co., 334 U.S. 219, 68 S.Ct. 996, 92 L.Ed. 1328 (1948); and United States v. Yellow Cab Co., 332 U.S. 218 (1947), this Court has reviewed 'interstate commerce' issues in the context of dismissals of antitrust suits prior to trial on the merits. Those dismissals, however, were based, not upon motions for summary judgment or for dismissal for want of jurisdiction, but rather upon motions to dismiss for failure to state a claim. In such cases, of course, the allegations of the complaint must be taken as true. Id., at 224, 67 S.Ct., at 1563. In the case now before us, the District Court clearly went beyond the face of the complaint and required respondents to produce proof of interstate effects.
| 78
|
419 U.S. 102
95 S.Ct. 335
42 L.Ed.2d 320
Robert W. BLANCHETTE et al., as Trustees of the Property of Penn Central Transportation Company, Appellants,v.CONNECTICUT GENERAL INSURANCE CORPORATIONS et al. Richard Joyce SMITH, Trustee of the Property of the New York, New Haven and Hartford Railroad Company, Appellant, v. UNITED STATES et al. UNITED STATES RAILWAY ASSOCIATION, Appellant, v. CONNECTICUT GENERAL INSURANCE CORPORATIONS et al. UNITED STATES et al., Appellants, v. CONNECTICUT GENERAL INSURANCE CORPORATIONS et al.*
Nos. 74—165 to 74—168.
Argued Oct. 23, 1974.
Decided Dec. 16, 1974.
Syllabus
As a comprehensive solution to a national rail crisis precipitated by the entry into reorganization proceedings under § 77 of the Bankruptcy Act of eight major railroads in the northeast and midwest region of the country, Congress supplemented § 77 with the Regional Rail Reorganization Act of 1973 (Rail Act). Each railroad under a § 77 reorganization must proceed under the Rail Act unless its reorganization court within specified times finds (a) that the railroad is reorganizable on an income basis within a reasonable time under § 77 and that the public interest would be better served by a § 77 rather than a Rail Act reorganization or (b) that the Rail Act does not provide a process that is fair and equitable to the estate of the railroad in reorganization (hereafter railroad). § 207(b) of the Rail Act. Appeals from § 207(b) orders are provided to a Special Court, whose decision is final. The Rail Act establishes a Government corporation, the United States Railway Association (USRA), which is directed to formulate a 'Final System Plan' (Plan) by July 26, 1975, for restructuring the railroads into a 'financially self-sustaining rail service system.' The Plan must provide for transfer of designated railroad properties to the Consolidated Rail Corp. (Conrail), a private state-incorporated corporation, in return for Conrail securities, plus up to $500 million of federally guaranteed USRA obligations and the other benefits accruing to the railroad from the transfer. The Plan, which becomes effective if neither House of Congress disapproves it within 60 days, must be transmitted to the Special Court, which has exclusive jurisdiction of all proceedings concerning the Plan. § 209. Within 10 days after deposit with it of Conrail securities and USRA obligations, the Special Court must order the railroad trustee to convey forthewith to Conrail the railroad's properties designated in the Plan. § 303(b). The Special Court then determines under § 303(c), with an appeal extending to this Court, whether the conveyance is fair and equitable to the railroad's estate under § 77 standards, or whether the transfer is more fair and equitable than a constitutional minimum requires (in which case necessary adjustments must be made). If the Special Court finds the conveyance not fair and equitable, the court must reallocate, or order issuance of additional Conrail securities and USRA obligations, enter a judgment against Conrail, or combine such remedies. Railroads may discontinue service and abandon properties not designated for transfer under the Plan, but until the Plan becomes effective may only discontinue service or abandon any line with USRA consent and absent reasonable state opposition. § 304(f). Parties with interests in Penn Central Transportation Co. (Penn Central) brought suits attacking the constitutionality of the Rail Act, contending that the Act violates the Fifth Amendment by taking Penn Central property without just compensation, on the grounds (1) that the Conrail securities and USRA obligations and other benefits would not be the constitutionally required equivalent of the rail properties whose transfer is compelled by § 303(b) (the 'conveyance taking' issue), and (2) that § 304(f) compels continuation of rail operations pending the Plan's implementation even if erosion, beyond constitutional limits, of Penn Central's estate occurs during the interim period (the 'erosion taking' issue). While rejecting the 'conveyance taking' issue as premature in view of a number of decisional steps required before the final conveyance, the District Court held that the 'erosion taking' issue was not premature, and rejected the contention of the United States, USRA, and the Penn Central Trustees that if the constitutional limit of permissible uncompensated erosion should be passed, the plaintiffs would have an adequate remedy at law under the Tucker Act, 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 . . .,' the District Court finding that the Rail Act precluded a Tucker Act remedy. The court therefore declared § 304(f) invalid as violating the Fifth Amendment 'to the extent that it would require continued operation of rail services at a loss in violation of the constitutional rights of the owners and creditors of a railroad,' and the court declared § 303 invalid to the extent it failed to compensate for interim erosion pending final implementation of the Plan. In addition to other injunctive relief, the District Court enjoined USRA from certifying the Plan to the Special Court under § 209(c). The court further determined that the provision of § 207(b) requiring dismissal of certain reorganization proceedings is constitutionally invalid as a geographically nonuniform law on the subject of bankruptcies. Held:
1. The issue of the availability of a Tucker Act remedy if the Rail Act effects an 'erosion taking' is ripe for adjudication in view of the distinct possibility that compelled continued rail operations by Penn Central, which in the past several years has sustained great losses and is not 'reorganizable on an income basis within a reasonable time under (§ 77),' would injure plaintiffs below without any assurance before the Plan is implemented of their being compensated. Pp. 122—125.
2. The Tucker Act remedy is not barred by the Rail Act, but is available to provide just compensation for any 'erosion taking' effected by the Rail Act. Pp. 125—136.
(a) The correct issue is whether Congress intended to prevent recourse to the Tucker Act and not as the District Court held whether the Rail Act affirmatively manifests a congressional intent to permit such recourse. Pp. 126—127.
(b) Rail Act provisions relied on as evincing a congressional determination that no federal funds beyond those expressly committed by the Act were to be paid for the rail properties, equally support the inference that Congress felt that the Rail Act provided at least the minimum compensation and gave no consideration to withdrawal of the Tucker Act remedy. Pp. 127—129.
(c) Section 601 of the Rail Act, which specifically deals with other statutes inconsistent with the Rail Act, does not mention the Tucker Act. P. 129.
(d) There is no legislative history supporting the argument that the Rail Act should be construed to withdraw the Tucker Act remedy. Pp. 129—133.
(e) Applicable canons of construction fortify the conclusion that the Rail Act does not withdraw the Tucker Act remedy. Pp. 133 136.
3. Certain basic 'conveyance taking' issues are now ripe for adjudication. Pp. 136—148.
(a) Since after the District Court's opinion the Special Court reversed the Penn Central reorganization court's determination that the Rail Act did not provide a process that would be fair and equitable to the estate, some of the 'conveyance taking' issues must now be decided. Pp. 138—140.
(b) Implementation of the Rail Act will now lead inexorably to the final conveyance though the exact date cannot now be determined, and the Special Court must order the conveyance of rail properties included in the Plan; since the conveyance is inevitable it is not relevant to the justiciable-controversy issue that there will be a delay before the transfer occurs. Pp. 140 143.
(c) Several factors militate against the Court's deferring resolution of the constitutional issues here until a time closer to the occurrence of the disputed event and the Court will be in no better position later than it is now to determine the validity of basic final-conveyance issues. However, resolution of other issues, such as those involving valuation, should be postponed. Pp. 143—148.
4. For the same reasons as obtained with respect to the 'erosion taking' issue, a suit in the Court of Claims is available under the Tucker Act for a cash award to cover any shortfall between the consideration that the railroads receive for their rail properties finally conveyed under the Rail Act and the constitutional minimum. P. 148.
5. The Tucker Act guarantees an adequate remedy at law for any taking that might occur as a result of the final-conveyance provisions of the Rail Act. Pp. 148—156.
(a) Plaintiffs' argument that the Tucker Act remedy is inadequate because the 'conveyance taking' is an exercise of the eminent domain power and requires full cash payment for the rail properties is without merit. The Rail Act coupled with the Tucker Act is valid as a reorganization statute and does not constitute an eminent domain statute by virtue of its provisions for federal representation on Conrail's board of directors (which does not constitute Conrail a federal instrumentality) and the provisions for conveyance and continuation of services pending the Plan's formulation; or because of any defects in the Act's provisions for judicial review. Pp. 152—155.
(b) Though the Rail Act differs from other reorganization statutes by mandating conveyance without any prior judicial finding that there will be adequate resources in the reorganized company to compensate the debtor estates and, eventually, their creditors, recourse to a Tucker Act suit for any shortfall provides adequate assurance that any taking will be compensated. Pp. 155—156.
(c) The Tucker Act also assures that the railroad estates and their creditors will eventually be made whole for the assets conveyed, and thus the Rail Act does not deprive plaintiffs of procedural due process. P. 156.
6. The Rail Act does not contravene the uniformity requirement of the Bankruptcy Clause. Pp. 156—161.
(a) This Court's holding that the Tucker Act remedy is available for any uncompensated taking under the Rail Act obviates the possibility that the Penn Central reorganization court will ever confront the provision for dismissal of a § 77 proceeding under § 207(b) of the Rail Act, which the District Court held violative of the bankruptcy uniformity requirement. Pp. 156—158.
(b) Plaintiffs' argument that constitutional bankruptcy uniformity is violated because the Rail Act is restricted to a single statutorily defined region lacks merit since the uniformity requirement does not preclude Congress from fashioning legislation to resolve geographically isolated problems, and here Congress acted consistently with that requirement when it dealt with the national rail crisis centering in the problems of rail carriers in the region defined by the Rail Act and applied the Rail Act to every railroad in reorganization throughout the United States. Pp. 158—161.
D.C., 383 F.Supp. 510, reversed.
Solicitor Gen. Robert H. Bork for the United States and others.
Lloyd N. Cutler, Washington, D.C., for the United States Railway Assn.
Brockman Adams, Seattle, Wash., for certain United States Representatives, as amici curiae, by special leave of Court.
Charles A. Horsky, Washington, D.C., for Robert W. Blanchette and others, Trustees, etc.
Louis A. Craco of Willkie, Farr & Gallagher, New York City, for Connecticut General Ins. Corp. and others.
David Berger, Philadelphia, Pa., for Penn Central Co.
Joseph Auerbach, Boston, Mass., for Richard Joyce Smith, Trustee, etc.
Mr. Justice BRENNAN delivered the opinion of the Court.
1
These direct appeals and the cross-appeal are from a judgment of a three-judge District Court for the Eastern District of Pennsylvania that declared the Regional Rail Reorganization Act of 1973, 87 Stat. 985, 45 U.S.C. § 701 et seq., (1970 ed. Supp. III), unconstitutional in part and enjoined its enforcement.1 383 F. Supp. 510 (1974). We noted probable jurisdiction, 419 U.S. 801, 95 S.Ct. 9, 42 L.Ed.2d 32. We reverse.
2
* Introduction
3
A rail transportation crisis seriously threatening the national welfare was precipitated when eight major railroads in the northeast and midwest region of the country2 entered reorganization proceedings under § 77 of the Bankruptcy Act, 11 U.S.C. § 205.3 After interim measures 95 S.Ct. 342 proved to be insufficient,4 Congress concluded that solution of the crisis required reorganization of the railroads, stripped of excess facilities, into a single, viable system operated by a private, for-profit corporation. Since such a system cannot be created under § 77 rail reorganization law, and since significant federal financing would be necessary to make such a plan workable, Congress supplemented § 77 with the Rail Act, which became effective on January 2, 1974. The salient features of the Rail Act are:
4
1. Reorganization of each railroad in § 77 reorganization must proceed pursuant to the Rail Act unless the district court having jurisdiction over its reorganization (a) finds, within 120 days after January 2, 1974, that 'the railroad is reorganizable on an income basis within a reasonable time under section (77) and that the public interest would be better served by (such a reorganization) than by a reorganization under this chapter,'5 or (b) within 180 days after January 2, 1974, 'finds that this chapter does not provide a process which would be fair and equitable to the estate of the railroad in reorganization . . ..' § 207(b), 45 U.S.C. § 717(b) (1970 ed., Supp. III).6 Appeals from § 207(b) orders may be taken within 10 days of entry to a Special Court constituted under § 209(b), 45 U.S.C. § 719(b) (1970 ed., Supp. III), and must be decided by the Special Court within 80 days after the appeal is taken. Section 207(b) expressly provides that '(t)here shall be no review of the decision of the special court.'7
5
2. Appellant United States Railway Association (USRA) is established as a new Government corporation. § 201(a), 45 U.S.C. § 711a (1970 ed., Supp. III). USRA must prepare a 'Final System Plan' for restructuring the railroads in reorganization into a 'financially self-sustaining rail service system.' § 206(a)(1), 45 U.S.C. § 716(a)(1) (1970 ed., Supp. III). See §§ 201, 202, 204 206, 45 U.S.C. §§ 711, 712, 714—716 (1970 ed., Supp. III). The Final System Plan must provide for transfer of designated rail properties by the railroads in reorganization to a private state-incorporated corporation, Consolidated Rail Corporation (Conrail), § 301(a), 45 U.S.C. § 741(a) (1970 ed., Supp. III), in return for securities of Conrail, plus up to $500 million of USRA obligations guaranteed by the United States, and 'the other benefits accruing to such railroad by reason of such transfer.' § 206(d)(1), 45 U.S.C. § 716(d) (1) (1970 ed., Supp. III); see also § 210, 45 U.S.C. § 720 (1970 ed., Supp. III).8
6
3. USRA must submit a proposed Final System Plan to Congress within 570 days after January 2, 1974, §§ 207(c), 207(d), 208(a), 45 U.S.C. §§ 717(c), 717(d), 718 (a)Supp. III), that is, by July 26, 1975.9 The Plan becomes 'effective' if neither House of Congress disapproves it within 60 continuous session days after submission. §§ 102(4), 208(a), 45 U.S.C. §§ 702(4), 718(a), (1970 ed., Supp. III).10 USRA is required to transmit the Plan within 90 days after its effective date to the Special Court which, under § 209(b), is given exclusive jurisdiction of all 'proceedings with respect to the final system plan.' 45 U.S.C. § 719(b) (1970 ed., Supp. III). The Special Court 'within 10 days after deposit . . . of' Conrail securities and USRA obligations 'shall . . . order the trustee or trustees of each railroad in reorganization . . . to convey forthwith' to Conrail 'all right, title, and interest in the rail properties of . . . such railroad in reorganization . . .' designated in the Final System Plan. § 303(b), 45 U.S.C. § 743(b) (1970 ed., Supp. III).
7
4. The Special Court next determines whether the conveyances of the rail properties to Conrail '(A) . . . are in the public interest and are fair and equitable to the estate of each railroad in reorganization in accordance with the standard of fairness and equity applicable to the approval of a plan of reorganization . . . under section (77) . . . (or) (B) whether the transfers or conveyances are more fair and equitable than is required as a constitutional minimum.' § 303(c), 45 U.S.C. § 743(c) (1970 ed., Supp. III). If the Special Court finds that the transfer is not fair and equitable, the Special Court must reallocate, or order issuance of additional, Conrail securities and USRA obligations (subject to the overall $500 million limitation on USRA obligations for this purpose), or enter a judgment against Conrail, or decree a combination of these remedies. § 303(c)(2). The Special Court is not authorized to enter a judgment against the United States. Section 303 provides also that if the Special Court decides that the consideration exchanged for the rail properties is 'more fair and equitable than is required as a constitutional minimum,' § 303(c)(1)(B), it shall make necessary adjustments so that the 'constitutional minimum' is not exceeded. § 303(c)(3). Appeal from § 303(c) determinations is to this Court. § 303(d).11
8
5. Although railroads in reorganization subject to the Act are free to abandon service and dispose as they wish of any rail properties not designated for transfer under the Final System Plan, §§ 304(a)—(c), 45 U.S.C. §§ 744 , Supp. III), until that Plan becomes effective none 'may discontinue service or abandon any line of railroad . . . unless . . . authorized to do so by (USRA) and unless no affected State or local or regional transportation authority reasonably opposes such action . . ..' § 304(f).
II
Proceedings in the District Court
9
Constitutional questions concerning the Act are raised in this litigation by parties with interests in the Penn Central Transportation Co. (Penn Central), the largest of the eight railroads in reorganization.12 The principalcontention of the pLAINTIFFS IN THE DISTRICT COURT WAS THAT THE Rail Act in two respects effects a taking of rail properties of Penn Central without payment of just compensation, in violation of the Fifth Amendment. They contended, first, that the Conrail securities and USRA obligations and other benefits to be received would not be the constitutionally required equivalent of the rail properties compelled by § 303(b) to be transferred. This is the 'conveyance taking' issue. This claim was rejected by the District Court as premature. 383 F.Supp., at 517—518. They contended, second, that a taking of their property without just compensation will result from the severe inhibitions imposed upon discontinuance of service and abandonment of lines. In particular, they claimed that § 304(f) compels continuation of rail operations pending implementation of the Final System Plan even if erosion of the Penn Central estate beyond constitutional limits occurs during this period. This is the 'erosion taking' issue. The District Court agreed that § 304(f) required continued operations to this extent, and viewed the huge operating losses already incurred by Penn Central as making this contention ripe for determination, saying:
10
'(W)e are persuaded that a significant possibility exists that a point of erosion either has been or may soon be reached so that it can be said that (the contention of plaintiffs below) of interim unconstitutional taking by continued loss operations is ripe for adjudication.' 383 F.Supp., at 525.
11
The District Court rejected the argument of the United States, USRA, and the Penn Central Trustees that if in fact the constitutional limit of permissible uncompensated erosion should be passed, plaintiffs would have an adequate remedy at law in the Court of Claims under the Tucker Act, 28 U.S.C. § 1491. The District Court construed the Rail Act as precluding a Tucker Act remedy, stating:
12
'We are persuaded that the legislative history supports the conclusion that Congress intended that financial obligations be limited to the express terms of the Act. Article I, Section 9, Clause 7 (of the Constitution) provides that no money shall be drawn from the Treasury of the United States except in consequence of an appropriation made by law. Section 213(b) (of the Rail Act), and section 214 entitled 'Authorization for Appropriations' place an express ceiling on expenditures. Section 210 describes the maximum obligational authority of (USRA), and the authorization for appropriation is limited to 'such amounts as are necessary to discharge the obligations of the United States arising under this section.' (Emphasis supplied.) Judicial review is delineated with specificity in Sections 209(a) and 303 with no mention of the Court of Claims.' 383 F.Supp., at 528—529.
13
The District Court therefore declared § 304(f) governing interim abandonments
14
'null and void as violative of the Fifth Amendment of the United States Constitution, to the extent that it would require continued operation of rail services at a loss in violation of the constitutional rights of the owners and creditors of a railroad.' It consequently enjoined defendants below
15
'from taking any action to enforce the provisions of Section 304(f) . . . with respect to any abandonment, cessation, or reduction of service which has been or may hereafter be determined by a court of competent jurisdiction to be necessary for the preservation of rights guaranteed by the United States Constitution.'
16
The District Court also declared that § 303 relating to the final conveyance of rail properties pursuant to the Final System Plan is
17
'null and void as contravening the Fifth Amendment . . . insofar as it fails to provide compensation for interim erosion pending final implementation of the Final System Plan . . ..'
18
Finally, the District Court enjoined USRA 'from certifying a Final System Plan to the Special Court pursuant to Section 209(c). . . .' 383 F.Supp., at 530.
19
The Rail Act was also challenged in the District Court as not 'uniform' within the requirement of Art. I, § 8, cl. 4, of the Constitution, which provides that Congress shall have the power to enact 'uniform Laws on the subject of Bankruptcies throughout the United States.' The District Court dismissed this contention as without merit except as to one provision of § 207(b). The section provides that if any reorganization court determines in the 180-day proceedings under § 207(b) that the Act does not provide a fair and equitable process for the reorganization of a debtor, the debtor shall not be reorganized pursuant to the Act, and the reorganization court 'shall dismiss the reorganization proceeding.' The District Court declared this part of § 207(b) 'null and void, as violative of Article I, Section 8, Clause 4 . . .,'13 and enjoined 'all parties . . . from enforcing, or taking any action to implement, so much of Section 207(b) . . . as purports to require dismissal of pending proceedings for reorganization under Section 77 of the Bankruptcy Act.'
III
The Issues for Decision
20
The major issues dividing the parties are (1) whether an action at law in the Court of Claims under the Tucker Act, 28 U.S.C. § 1491, will be available to recover any deficiency of constitutional dimension in the compensation provided under the Rail Act for either the alleged 'erosion taking' or the alleged 'conveyance taking,' and (2) if the Tucker Act remedy is available, whether it is an adequate remedy. The United States, USRA, and the Penn Central Trustees contend that if resort to a supplemental remedy under the Tucker Act is necessary, it is both available and adequate. The plaintiffs below contend that the Rail Act precludes resort to the Tucker Act remedy, and if it does not, that the remedy is inadequate.
21
The Special Court, speaking through Judge Friendly, comprehensively canvassed both issues, and in a thorough opinion, concluded that the Rail Act does not bar any necessary resort to the Tucker Act remedy and that the remedy is adequate. Our independent examination of the issues brings us to the same conclusion, substantially for the reasons stated by Judge Friendly in Parts VII and VIII A of the Special Court opinion. 384 F.Supp. 895, 938—951 (1974).14
22
Also disputed is the District Court's ruling on the uniformity of the Rail Act under the Bankruptcy Clause. We hold that the currently operable portions of the Act are uniform.
IV
A.
23
The Alleged 'Erosion Taking'
24
In its opening brief, the United States, speaking for all federal parties except USRA, argued that the case involved no 'erosion taking' because, as a matter of law, compelled-loss operations pending implementation of the Final System Plan would not constitute a taking of the property of the claimants against the bankrupt railroad estates. The argument was that the general rule that if the railroad 'be taken to have granted to the public an interest in the use of the railroad it may withdraw its grant by discontinuing the use when that use can be kept up only at a loss,' Brooks-Scanlon Co. v. Railroad Comm'n of Louisiana, 251 U.S. 396, 399, 40 S.Ct. 183, 184, 64 L.Ed. 323 (1920); see also Bullock v. Florida ex rel. Railroad Comm'n, 254 U.S. 513, 41 S.Ct. 193, 65 L.Ed. 380 (1921); Railroad Comm'n of Texas v. Eastern Texas R. Co., 264 U.S. 79, 44 S.Ct. 247, 68 L.Ed. 569 (1924), is qualified by the requirement that a railroad estate suffer interim losses for a reasonable period pending good-faith efforts to develop a feasible reorganization plan if the public interest in continued rail service justifies the requirement. Continental Illinois Nat. Bank & Trust Co. v. Chicago, R.I. & P.R. Co., 294 U.S. 648, 677, 55 S.Ct. 595, 606, 79 L.Ed. 1110 (1935); see also RFC v. Denver & R.G.W.R.Co., 328 U.S. 495, 535—536, 66 S.Ct. 1282, 1303—1304, 90 L.Ed. 1400 (1946); New Haven Inclusion Cases, 399 U.S. 392, 493, 90 S.Ct. 2054, 2110, 26 L.Ed.2d 691 (1970). The United States maintained that the Rail Act represented just such a good-faith effort. In its Reply Brief 3—4, however, it abandoned the position that the Final System Plan was sure to be implemented within a reasonable period:
25
'Difficulties now unforeseen and unanticipated could in fact delay final implementation of the final system plan. For example, Congress could, in theory, successively disapprove several proposed final system plans. Thus, whatever the probabilities, the parties and this Court have no absolute assurance that the plan will in fact be implemented within a reasonable time. For that reason, we have determined that a taking of property through interim erosion, although extremely unlikely, remains a theoretical possibility under the Rail Act.
26
'Accordingly, we believe that an injunction preventing (USRA) from denying applications for discontinuance of service under Section 304(f) in those circumstances might be appropriate unless, as we contend, a remedy for any otherwise uncompensated taking will be available under the Tucker Act. We are therefore persuaded that this Court must reach and decide the 'Tucker Act question' presented by these appeals.' (Footnote omitted.)
27
We conclude in any event that the availability of a Tucker Act remedy if the Rail Act effects an 'erosion taking' is ripe for adjudication. It is true that there has been no definitive determination that erosion of the Penn Central estate has reached unconstitutional dimensions is, that the estate has suffered losses unreasonable even in light of the public interest in continued rail service pending reorganization. But the Penn Central Reorganization Court found that Penn Central is not 'reorganizable on an income basis within a reasonable time under section 77 of the Bankruptcy Act.' 382 F.Supp. 831, 842 (E.D.Pa.1974). And it was stipulated in the District Court that Penn Central sustained ordinary net losses from mid-1970 through 1973 aggregating approximately $851 million, and that in the two months following enactment of the Rail Act on January 2, 1974, Penn Central had deficits in net railway operating income, total income, net income, and income available for fixed charges. It is therefore reasonable to conclude that compelled continued rail operations under these conditions pending implementation of the Final System Plan may accelerate erosion of the interests of plaintiffs below through accrual of post-bankruptcy claims having priority over their claims. Thus, failure to decide the availability of the Tucker Act would raise the distinct possibility that those plaintiffs would suffer an 'erosion taking' without adequate assurance that compensation will ever be provided.15 Yet there must be at the time of taking 'reasonable, certain and adequate provision for obtaining compensation.' Cherokee Nation v. Southern Kansas R. Co., 135 U.S. 641, 659, 10 S.Ct. 965, 971, 34 L.Ed. 295 (1890); see also Joslin Mfg. Co. v. City of Providence, 262 U.S. 668, 677, 43 S.Ct. 684, 688, 67 L.Ed. 1167 (1923); United States v. Dow, 357 U.S. 17, 21, 78 S.Ct. 1039, 1044, 2 L.Ed.2d 1109 (1958). Therefore we must determine if the Tucker Act is available.
B
28
Availability of the Tucker Act Remedy for Any 'Erosion Taking'
29
The Tucker Act, 28 U.S.C. § 1491, provides in pertinent part:
30
'The Court of Claims shall have 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.'
31
A claim founded upon a taking of property for public use by operation of the Rail Act without just compensation in violation of the Fifth Amendment plainly would fall within the literal words of 'any claim against the United States founded . . . upon the Constitution . . ..' The District Court, however, inquired whether the Rail Act affirmatively provided the Tucker Act remedy, and held that to 'read a Tucker Act remedy into the (Rail) Act' would be 'judicial legislation on a grand, if not arrogant, scale.' 383 F.Supp., at 529.
32
The District Court made the wrong inquiry. The question is not whether the Rail Act expresses an affirmative showing of congressional intent to permit recourse to a Tucker Act remedy. Rather, it is whether Congress has in the Rail Act withdrawn the Tucker Act grant of jurisdiction to the Court of Claims to hear a suit involving the Rail Act 'founded . . . upon the Constitution.' For we agree with the Special Court that
33
'the true issue is whether there is sufficient proof that Congress intended to prevent such recourse. The (Rail) Act being admittedly silent on the point, the issue becomes whether the scheme of the (Rail) Act, supplemented by the legislative history, sufficiently evidences a Congressional intention to withdraw a remedy that would otherwise exist.' 384 F.Supp., at 939.
34
Our decisions affirm that this is the correct inquiry. The general rule is that whether or not the United States so intended, '(i)f there is a taking, the claim is 'founded upon the Constitution' and within the jurisdiction of the Court of Claims to hear and determine.' United States v. Causby, 328 U.S. 256, 267, 66 S.Ct. 1062, 1068, 90 L.Ed. 1206 (1946). '(I)f the authorized action . . . does constitute a taking of property for which there must be just compensation under the Fifth Amendment, the Government has impliedly promised to pay that compensation and has afforded a remedy for its recovery by a suit in the Court of Claims.' Yearsley v. Ross Construction Co., 309 U.S. 18, 21, 60 S.Ct. 413, 415, 84 L.Ed. 554 (1940).16 See also Hurley v. Kincaid, 285 U.S. 95, 52 S.Ct. 267, 76 L.Ed. 637 (1932). In Yearsley, the Court, speaking through Mr. Chief Justice Hughes, went on to hold that 'it cannot be doubted that the remedy to obtain compensation from the Government is as comprehensive as the requirement of the Constitution . . ..' 309 U.S., at 22, 60 S.Ct., at 415. (Emphasis supplied.)
35
We turn then to the inquiry whether the Rail Act withdrew the Tucker Act remedy 'that would otherwise exist.' 384 F.Supp., at 939. The argument that it should be so read rests on provisions of the Rail Act said plainly to evince Congress' determination that no federal funds beyond those expressly committed by the Act were to be paid for the rail properties.
36
The first provision referred to is § 209 which provides for the impaneling of the Special Court and the consolidation before it of 'all judicial proceedings with respect to the final system plan.' The argument attaches significance to the omission in § 303 of any authority in the Special Court to enter a judgment against the United States. Reliance is also placed on two of the Act's funding provisions. Section 210(b), captioned 'Maximum obligational authority,' provides that the 'aggregate amount of (USRA) obligations . . . which may be outstanding at any one time shall not exceed $1,500,000,000 of which the aggregate amount issued to (Conrail) shall not exceed $1,000,000,000 . . .,' and that '(a)ny modification to (these) limitations . . . shall be made by joint resolution adopted by the Congress.' Section 214 explicitly appropriates up to $12,500,000 to the Secretary of Transportation, to pay the expenses of 'preparing the reports and exercising other functions to be performed by him under this chapter,' appropriates up to $5,000,000 to the Interstate Commerce Commission for its use in carrying out its functions, and appropriates up to $26,000,000 to USRA 'for purposes of carrying out its administrative expenses . . ..'
37
But these provisions at least equally support the inference that Congress was so convinced that the huge sums provided would surely equal or exceed the required constitutional minimum that it never focused upon the possible need for a suit in the Court of Claims. That this may very well have been the case is evident in a statement in the House Report:
38
'The timely implementation of the Final System Plan cannot be obstructed by controversy over the payment for the properties. The Committee is of the opinion that provisions of this title of the (Rail) Act, and especially the provision for deficiency judgment and payment of obligations of (USRA) . . . are more than adequate to guarantee that the creditors of the bankrupt railroad will receive all that they may Constitutionally claim. In view of these extraordinary protections, no litigation should be permitted to delay the Final System Plan.' H.Rep. 55 (1973).
39
That inference also finds support in the provision of 303(c)(3) that authorizes the Special Court to reduce payments to bankrupt estates if they 'are fairer and more equitable than is required as a constitutional minimum.' That provision suggests that Congress thought the compensation made possible by the Rail Act could well exceed that required by the Constitution, and gave no consideration to withdrawal of the Tucker Act remedy because it was sure the Rail Act itself provided at least the constitutional minimum compensation.
40
Finally, the manner in which Congress in § 601, 45 U.S.C. § 791 (1970 ed., Supp. III), expressly addressed the Rail Act's 'Relationship to other laws' plainly implies that Congress gave no thought to consideration of withdrawal of the Tucker Act remedy. Section 601(a)(2) provides that the 'antitrust laws are inapplicable with respect to any action taken to formulate or implement the final system plan . . .'; § 601(b) provides that '(t)he provisions of the Interstate Commerce Act and the Bankruptcy Act are inapplicable to transactions under this chapter to the extent necessary to formulate and implement the final system plan whenever a provision of any such Act is inconsistent with this chapter'; § 601(c) provides that, '(t)he provisions of section 4332(2)(C) of Title 42 (National Environmental Policy Act of 1969) shall not apply with respect to any action taken under authority of this chapter before the effective date of the final system plan.' Yet despite this clear evidence that Congress was aware of the necessity to deal expressly with inconsistent laws, Congress nowhere addresses the Tucker Act question.
41
It is argued that any uncertainty in the scheme and text of the Rail Act is cleared up by legislative history from the House and the Senate that discloses that Congress meant the Rail Act to withdraw the jurisdiction of the Court of Claims under the Tucker Act. To the contrary, we read the legislative history as disclosing no more than a repeatedly emphasized belief that the Rail Act's provisions for compensation for the rail properties assured payment of the constitutional minimum. This is plainly the import of the oft-stated view that the taxpayers would not be unduly burdened by the sums provided, see, e.g., 119 Cong.Rec. 36354 (1973) (remarks of Rep. Metcalfe); id., at 36359 (remarks of Rep. Conte); and also of Senator Hartke's explanation of the Conference Report to the Senate, id., at 43094—43095, which included the statement:
42
'If we did nothing while continuing to mandate rail service, there is the distinct possibility in view of the prior action of Congress that a number of these people could make a claim against the Government which could be sustained in the Court of Claims.'17
43
As the Special Court remarked, and we agree, this statement in context is 'not inconsistent with the view that the Senator was so convinced that the bill, as amended in conference, contained such adequate compensation provisions that a suit in the Court of Claims could not prevail, particularly in view of what he had characterized as a 'rather slim' chance of the creditors getting their money through liquidation, rather than as meaning that such a claim could not be maintained.' 384 F.Supp., at 941.
44
We do not think that the argument in support of reading the Rail Act to withdraw the Tucker Act remedy is aided by the colloquy on the House side between the House managers of the bill, 119 Cong.Rec. 42947 (1973).18 That colloquy does not even concern the withdrawal of Court of Claims jurisdiction. It concerns only the deficiency judgment against Conrail and the powers of the Special Court.
45
Finally, reliance is put upon what is referred to as 'subsequent legislative history' in the form of statements by Congressmen during Oversight Hearings of the House Subcommittee on Transportation and Aeronautics on June 14, 1974, and on an amicus brief filed in this Court on behalf of 36 Congressmen. But post-passage remarks of legislators, however explicit, cannot serve to change the legislative intent of Congress expressed before the Act's passage. See, e.g., United States v. Mine Workers of America, 330 U.S. 258, 282, 67 S.Ct. 677, 690, 91 L.Ed. 884 (1947). Such statements 'represent only the personal views of these legislators, since the statements were (made) after passage of the Act.' National Woodwork Manufacturers Ass'n v. NLRB, 386 U.S. 612, 639 n. 34, 87 S.Ct. 1250, 1265, 18 L.Ed.2d 357 (1967). Moreover, during oral argument before this Court Representative Adams, spokesman for the congressional group, expressly conceded that circumstances might arise when the Tucker Act remedy would be available:
46
'QUESTION: So you do anticipate a situation where the Tucker Act would be available?
47
'MR. ADAMS: Oh, yes. Let's say, for example, that after this is all over-and this is the three-judge court's problem—that if a party comes in and says, you held as beyond the constitutional limit on erosion and at that point we are of the opinion that it went just too long, it was unreasonable, but that is a specific individual case at that point.
48
'QUESTION: And so the Tucker Act, you think, would be available in that situation?
49
'MR. ADAMS: Of course. We did not repeal the Tucker Act.'19 (Emphasis supplied.)
50
In sum, we cannot find that the legislative history supports the argument that the Rail Act should be construed to withdraw the Tucker Act remedy. The most that can be said is that the Rail Act is ambiguous on the question. In that circumstance, applicable canons of statutory construction require us to conclude that the Rail Act is not to be read to withdraw the remedy under the Tucker Act.
51
One canon of construction is that repeals by implication are disfavored. See, e.g., Mercantile National Bank v. Langdeau, 371 U.S. 555, 565, 83 S.Ct. 520, 525, 9 L.Ed.2d 523 (1963); United States v. Borden Co., 308 U.S. 188, 198—199, 60 S.Ct. 182, 188, 189, 94 L.Ed. 181 (1939); Amell v. United States, 384 U.S. 158, 165—166, 86 S.Ct. 1384, 1388—1389, 16 L.Ed.2d 445 (1966). Rather, since the Tucker Act and the Rail Act are 'capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to reward each as effective.' Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 2483, 41 L.Ed.2d 290 (1974). Moreover, the Rail Act is the later of the two statutes and we agree with the Special Court:
52
'A new statute will not be read as wholly or even partially amending a prior one unless there exists a 'positive repugnancy' between the provisions of the new and those of the old that cannot be reconciled. . . . This principle rests on a sound foundation. Presumably Congress had given serious thought to the earlier statute, here the broadly based jurisdiction of the Court of Claims. Before holding that the result of the earlier consideration has been repealed or qualified, it is reasonable for a court to insist on the legislature's using language showing that it has made a considered determination to that end. . . .' 384 F.Supp., at 943.
53
The other relevant canon of construction that comes into play is that when a statute is ambiguous, 'construction should go in the direction of constitutional policy.' United States v. Johnson, 323 U.S. 273, 276, 65 S.Ct. 249, 251, 89 L.Ed. 236 (1944). There are clearly grave doubts whether the Rail Act would be constitutional if a Tucker Act remedy were not available as compensation for any unconstitutional erosion not compensated under the Act itself. In such case, as the Special Court observed, '(w)hen one admissible construction will preserve a statute from unconstitutionality and another will condemn it, the former is favored even if language, . . . and arguably the legislative history point somewhat more strongly in another way.' 384 F.Supp., at 944. In other words our 'task is not to destroy the Act if we can, but to construe it, if consistent with the will of Congress, so as to comport with constitutional limitations.' United States Civil Service Comm'n v. National Association of Letter Carriers, 413 U.S. 548, 571, 93 S.Ct. 2880, 2893, 37 L.Ed.2d 796 (1973).
54
Lynch v. United States, 292 U.S. 571, 54 S.Ct. 840, 78 L.Ed. 1434 (1934), fully supports our conclusion. Lynch presented a situation requiring this Court to determine whether a statute that effected an unconstitutional taking was also to be construed to withdraw a cause of action created by an earlier statute. The Economy Act of 1933, 48 Stat. 11, provided in § 17 that 'all laws granting or pertaining to yearly renewable term insurance are hereby repealed . . ..' District Courts, affirmed by the Courts of Appeal for the Fifth Circuit, 67 F.2d 490 (1933), and the Seventh Circuit, Wilner v. United States, 68 F.2d 442 (1934), dismissed, on the basis of this provision, suits by beneficiaries of yearly renewable term policies brought under § 405 of the War Risk Insurance Act of 1917, 40 Stat. 410, expressly authorizing suits in the district courts respecting any 'disagreement as to a claim under the contract of insurance.' The beneficiaries' claim was that there was an actionable 'disagreement' within the meaning of § 405 because the Government had violated the terms of the policies by failing to pay the premiums when the insureds became totally and permanently disabled and had refused payment of benefits after the insureds died. This Court unanimously reversed the dismissals. Section 17 of the Economy Act was held to effect an unconstitutional taking of vested property rights in the beneficiaries created by the insurance contracts. The question then became whether § 17 had repealed the remedy of a suit in the district court provided by § 405 of the Insurance Act. The Court held, speaking through Mr. Justice Brandeis, that § 17 would not be read as depriving the beneficiaries of that remedy in the absence of a clear indication from Congress that the remedy was taken away. The Court said:
55
'Fifth. There is a suggestion that although, in repealing all laws 'granting or pertaining to yearly renewable term insurance,' Congress intended to take away the contractual right, it also intended to take away the remedy; that, since it had power to take away the remedy, the statute should be given effect to that extent, even if void insofar as it purported to take away the contractual right. The suggestion is at war with settled rules of construction. It is true that a statute bad in part is not necessarily void in its entirety. A provision within the legislative power may be allowed to stand if it is separable from the bad. But no provision however unobjectionable in itself, can stand unless it appears both that, standing alone, the provision can be given legal effect and that the Legislature intended the unobjectionable provision to stand in case other provisions held bad should fall. Dorchy v. Kansas, 264 U.S. 286, 288, 290, 44 S.Ct. 323, 68 L.Ed. 686. Here both those essentials are absent. There is no separate provision in section 17 dealing with the remedy; and it does not appear that Congress wished to deny the remedy if the repeal of the contractual right was held void under the Fifth Amendment.' 292 U.S., at 586, 54 S.Ct., at 846.
56
Similarly, '(t)here is no separate provision in (the Rail Act) dealing with the (Tucker Act) remedy; and it does not appear (from the statute or its legislative history) that Congress wished to deny the remedy' if the Rail Act should cause an 'erosion taking' that would require the payment of just compensation.
57
We accordingly hold that the Tucker Act remedy is not barred by the Rail Act but is available to provide just compensation for any 'erosion taking' effected by the Rail Act.
V
A.
58
The Alleged 'Conveyance Taking'
59
The District Court declined to decide whether the provisions governing the procedures for and terms of the final conveyance of rail properties to Conrail (the 'conveyance taking' issue) violate the Fifth Amendment, thus rendering the Rail Act invalid in its entirety.20 The District Court was 'persuaded that these issues are premature.' 383 F.Supp., at 517.
60
Briefly, the challenges to the final-conveyance provisions assert that the Rail Act is basically an eminent domain statute and, because compensation is not in cash but largely in stock of an unproved entity, will necessarily work an unconstitutional taking.21 A variant of the argument is that, even if a reorganization statute, the Rail Act would be unconstitutional unless the Tucker Act remedy is now held to assure payment of any amount by which the market value of stocks and securities awarded by the Special Court is less than the value of the rail properties conveyed. The New Haven Trustee goes further; he argues that even if a reorganization statute, the Rail Act violates substantive due process by failing to assure the 'fair and equitable equivalent' of the rail properties valued at their 'highest and best use.' The New Haven Trustee also contends that the conveyance provisions constitute a taking such as that threatened by interim erosion: they require operations of the railroad to continue, albeit in a different form, even if the liquidation value for 'highest and best use' is greater than the value of the railroad as a going concern. Finally, the New Haven Trustee and the creditor parties contend that the conveyance provisions deny procedural due process, because they mandate the final conveyance before any meaningful determination of its fairness, and because no provision is made for creditor or stockholder consideration of or voting upon the Final System Plan.
61
All of the parties now urge that the 'conveyance taking' issues are ripe for adjudication. However, because issues of ripeness involve, at least in part, the existence of a live 'Case or Controversy,'22 we cannot rely upon concessions of the parties and must determine whether the issues are ripe for decision in the 'Case or Controversy' sense. Further, to the extent that questions of ripeness involve the exercise of judicial restraint from unnecessary decision of constitutional issues,23 the Court must determine whether to exercise that restraint and cannot be bound by the wishes of the parties.
62
The District Court's holding of prematurity was influenced by the statutory scheme that requires several decisional steps before the final conveyance. The possibility that the reorganization court might determine under § 207(b) that the Rail Act process is not fair and equitable to the railroad estate, or that Congress might disapprove the Final System Plan, § 208(a), or that the Special Court would not order the final conveyance pursuant to § 303(b), led the District Court to conclude that the question whether the final-conveyance provisions are constitutional was 'too speculative to warrant anticipatory judicial determinations.' Eccles v. Peoples Bank, 333 U.S. 426, 432, 68 S.Ct. 641, 645, 92 L.Ed. 784 (1948).24
63
But subsequent to the District Court's opinion, the Penn Central Reorganization Court determined that the Rail Act did not provide a process that would be fair and equitable to the estate, In re Penn Central Trans. Co., 382 F.Supp. 856 (E.D.Pa.1974). On appeal to the Special Court under § 207(b), that determination has been reversed, although the Special Court has not rendered its judgment, pending our decision of this case. 384 F.Supp., at 955. See n. 14, supra.
64
We agree with the parties that this change in circumstance has substantially altered the posture of the case as regards the maturity of the final-conveyance issues. Whatever may have been the case at the time of the District Court decision, there can be little doubt, for reasons to be detailed, that some of the 'conveyance taking' issues can and must be decided at this time. And, since ripeness is peculiarly a question of timing, it is the situation now rather than the situation at the time of the District Court's decision that must govern.25
65
First, the implementation of the Rail Act will now lead inexorably to the final conveyance, although the exact date of that conveyance cannot be presently determined. It is true that Congress can reject the first plan presented to it by the USRA, § 208(a), and that the Rail Act, while prescribing with precision the timing of the presentation of that plan, §§ 207(c) and (d), does not mandate the presentation of successive plans at any particular time. The Rail Act does, however, contemplate that USRA will continue to present plans, § 208(b), until one becomes 'effective,' § 209(a). Thus, we must assume there will be compliance with the Rail Act's mandatory terms in this respect and that a Final System Plan will at some time be certified to the Special Court. § 209(c).26
66
Second, the Special Court is mandated to order the conveyance of rail properties included in the Final System Plan and is granted no discretion not to order the transfer.27 While mandatory language does not necessarily deny a court of equity flexibility, Hecht Co. v. Bowles, 321 U.S. 321, 329, 64 S.Ct. 587, 591, 88 L.Ed. 754 (1944), the central scheme of the Rail Act defers decision of any controversies over the terms of the transfer of rail properties until after the transfer has occurred. H.Rep. 55; S.Rep. No. 93 601, p. 34 (1973) (hereinafter S.Rep.).28 The Special Court's opinion suggests that the mandatory order to convey probably could not prevent the Special Court from refusing to order the conveyance, indirectly if not by a direct injunction, if it were convinced that appellees' constitutional rights were certain to be violated. 384 F.Supp., at 931; Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803). But the possibility that a court may later decline to enforce the Rail Act as written because of its unconstitutionality cannot constitute a contingency itself pretermitting earlier consideration of the constitutionality of the Act. Cf. Albertson v. SACB, 382 U.S. 70, 76—77, 86 S.Ct. 194, 197—198, 15 L.Ed.2d 165 (1965).
67
It appears, then, that the conveyance of Penn Central's rail properties to Conrail cannot be prevented by the debtor or its creditors or stockholder; and, while the exact terms of the conveyance remain to be decided, an order of the Special Court directing the conveyance is virtually a certainty. The Rail Act empowers no court, including this Court, to prevent it.
68
Thus, occurrence of the conveyance allegedly violative of Fifth Amendment rights is in no way hypothetical or speculative. Where the inevitability of the operation of a statute against certain individuals is patent, it is irrelevant to the existence of a justiciable controversy that there will be a time delay before the disputed provisions will come into effect. Pennsylvania v. West Virginia, 262 U.S. 553, 592—593, 43 S.Ct. 658, 663—664, 67 L.Ed. 1117 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 536, 45 S.Ct. 571, 574, 69 L.Ed. 1070 (1925); Carter v. Carter Coal Co., 298 U.S. 238, 287, 56 S.Ct. 855, 862, 80 L.Ed. 1160 (1936). 'One does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending, that is enough.' Pennsylvania v. West Virginia, supra, 262 U.S., at 593, 43 S.Ct., at 663.29
69
True, there are situations where, even though an allegedly injurious event is certain to occur, the Court may delay resolution of constitutional questions until a time closer to the actual occurrence of the disputed event, when a better factual record might be available. Cf. Public Affairs Press v. Rickover, 369 U.S. 111, 82 S.Ct. 580, 7 L.Ed.2d 604 (1962). Several factors militate, however, against that course in this case.
70
First, decisions to be made now or in the short future may be affected by whether or not the 'conveyance taking' issues are now decided. The constitutionality of the final conveyance may be interwoven with the validity of the abandonment provisions. See n. 24, supra. The Penn Central Trustees may delay expending funds for maintenance in the interval before the final conveyance if constitutional doubts linger about ultimate reorganization under the Rail Act. See Reply Brief for Penn Central Trustees 12.
71
Second, the Act is a carefully structured method for planning and implementing a reorganization scheme. It necessitates the present denial to the railroads in reorganization of options otherwise available. For example, the New Haven Trustee filed in the District Court a motion to dismiss the § 77 proceeding, and to set up an equity receivership to liquidate Penn Central's assets. So long as reorganization under the Rail Act remains possible, an equity receivership is not available.
72
Third, and particularly significant, because of the structure of the Act there is no better time to decide the constitutionality of the Act's mandatory conveyance scheme to minimize or prevent irreparable injury. The precise contours of the Final System Plan will not be known until shortly before its certification to the Special Court.30 Until that Plan has been finally developed, the courts will not have any more settled facts concerning the rail properties to be conveyed, the valuation of those properties, or the value of Conrail stock and other securities to be transferred to the Penn Central estate than they do now.
73
After the Final System Plan is effective, the Rail Act prohibits initial judicial review of its terms except by the Special Court. §§ 209(a), 303(b) (2). And this review is to occur after conveyance, not before.31 Further, as all parties agree, the conveyance, because of its complexity and because of the long time lapse probable before valuation review is completed, in practical effect will be irreversible once it is made.
74
Thus, we will be in no better position later than we are now to confront the validity of the final-conveyance provisions. Rather, delay in decision will create the serious risk that consideration of the validity of those provisions may either be too hasty to afford protection of rights or too late to prevent the conveyance or assure compensation if the Rail Act were found unconstitutional.32
75
We hold, therefore, that the basic 'conveyance taking' issues are now ripe for adjudication. This does not mean however that we need decide now all of the contentions pressed upon us. 'Even where some of the provisions of a comprehensive legislative enactment are ripe for adjudication, portions of the enactment not immediately involved are not thereby thrown open for a judicial determination of constitutionality.' Communist Party v. SACB, 367 U.S. 1, 71, 81 S.Ct. 1357, 1397, 6 L.Ed.2d 625 (1961).
76
For example, the controversy over the proper valuation theory to be applied to both the rail properties and the stock of Conrail provided as compensation depends upon contingencies that argue forcefully for postponement of its resolution. The parties have stipulated that it will be impossible to ascertain until the Final System Plan is effective which rail properties will be transferred to Conrail, or their value on any valuation theory, or the value of the consideration to be exchanged for the rail properties. App. 205, 319, 371. Thus, it cannot be determined now what impact any particular theory of valuation may have when applied to either side of the equation, nor can we know where the interests of the various parties lie—that is, which methods of valuation would result in higher compensation to the estate or lower cost to Conrail. Rulings on these questions would plainly be rulings upon 'hypothetical situations that may or may not (arise).' International Longshoremen's, etc., Union v. Boyd, 347 U.S. 222, 224, 74 S.Ct. 447, 448, 98 L.Ed. 650 (1954).
77
Moreover, valuation issues peculiarly require a much more developed record than has been prepared. Without evidence of actual figures supporting various valuation theories, a court is not able to discern 'what legal issues it is deciding, what effect its decision will have on the adversaries, (or) some useful purpose to be achieved in deciding them.' Public Service Comm'n v. Wycoff Co., 344 U.S. 237, 244, 73 S.Ct. 236, 240, 97 L.Ed. 291 (1952). Clearly the record on these issues does not yet provide the 'confining circumstances of particular situations,' Communist Party v. SACB, supra, 367 U.S., at 72, 81 S.Ct., at 1397, which best inform constitutional adjudication.
78
Finally, there will be ample opportunity later to litigate valuation controversies after the factual record has matured. The Rail Act in terms vests the Special Court with the initial responsibility for valuation determinations,33 subject to review by this Court. In that circumstance, we should surely await the Special Court's determinations. Public Service Comm'n v. Wycoff Co., supra, 344 U.S., at 246, 73 S.Ct., at 241. Were we to attempt decisions of valuation questions before the Special Court's determinations, we would necessarily be forced to a speculative interpretation of a statute not clear on the subject of valuation before the court entrusted with its construction has given us the benefit of its views.34 Cf. Public Service Comm'n v. Wycoff Co., supra; Great Atlantic & Pacific Tea Co. v. Grosjean, 301 U.S. 412, 57 S.Ct. 772, 81 L.Ed. 1193 (1937).
79
In sum, of the 'conveyance taking' issues, we hold ripe for adjudication the questions (a) of the availability of the Tucker Act remedy if the consideration exchanged upon final conveyance of the rail properties is less than the constitutional minimum, (b) whether stocks, however valued, can be part of the consideration for the rail properties, and (c) whether procedural due process will be denied by the statutory process for conveyance. We hold further that decision of the questions concerning the method of valuation to be applied to either the rail properties or the consideration therefor is premature.
B
80
Availability of Tucker Act Remedy for Any 'Conveyance Taking'
81
Whether the Rail Act precludes the availability of the Tucker Act remedy for any amount by which the consideration exchanged for the rail properties finally conveyed falls short of the constitutional minimum need not detain us. The reasons that led to our conclusion that the Rail Act, insofar as it may work an unconstitutional taking due to interim erosion, does not render a Tucker Act remedy unavailable apply equally to the 'conveyance taking' issue. No party has suggested that a difference in result can be supported. The Rail Act authorizes inclusion in the Final System Plan of different kinds of consideration in exchange for the rail properties, subject to adjustment by the Special Court to assure fairness and equity. Congress fully expected that this consideration would provide the minimum compensation required by the Constitution; it wished to provide no more. If, however, that hopeful expectation should not be fulfilled, and the consideration exchanged for the rail properties should prove to be less than the constitutional minimum, the Tucker Act will be available as the jurisdictional basis for a suit in the Court of Claims for a cash award to cover any constitutional shortfall.
C
82
Adequacy of the Tucker Act Remedy for 'Conveyance Taking'
83
It is argued, however, that, even if a Tucker Act remedy remains open, the remedy is inadequate because it fails to cure basic deficiencies in the conveyance provisions of the Rail Act.35 We hold, to the contrary, that while the conveyance provisions of the Rail Act might raise serious constitutional questions if a Tucker Act suit were precluded, the availability of the Tucker Act guarantees an adequate remedy at law for any taking which might occur as a result of the final-conveyance provisions. Further, with the Tucker Act remedy, the payment of 'fair and equitable consideration' in compliance with the reorganization statutes is assured, and procedural due process is satisfied.
84
Primarily, it is contended that the Tucker Act remedy is inadequate because the 'conveyance taking' is an exercise of the eminent domain power and therefore requires full cash payment for the rail properties.36 Since our reasons supporting the availability of the Tucker Act remedy assume that the basic compensation scheme of the Act is valid but could result in payment of less than the constitutional minimum, it might indeed be inconsistent with the Rail Act to suppose that a Tucker Act suit would lie for the entire value, in cash, of the rail properties.
85
This argument fails, however, for two reasons. First, it is extremely questionable whether, even if the Rail Act were on its face an acquisition of private property for public use, the entire value of the property acquired would have to be paid in cash. More important, we believe that there is nothing in the Act fundamentally at odds with the expressed purpose of Congress to supplement the reorganization laws, see H. Rep. 29, and, with the Tucker Act, the Rail Act is valid as a reorganization statute.
86
No decision of this Court holds that compensation other than money is an inadequate form of compensation under eminent domain statutes. Statements can be found in opinions that the compensation 'must be a full and perfect equivalent for the property taken,' Monongahela Navigation Co. v. United States, 148 U.S. 312, 326, 13 S.Ct. 622, at 626, 37 L.Ed. 463 (1893); must reimburse, 'the full and perfect equivalent in money of the property taken,' United States v. Miller, 317 U.S. 369, 373, 63 S.Ct. 276, 279, 87 L.Ed. 336 (1943); and must be the 'full monetary equivalent of the property taken,' United States v. Reynolds, 397 U.S. 14, 16, 90 S.Ct. 803, 805, 25 L.Ed.2d 12 (1970); see also Almota Farmers Elevator & Warehouse Co. v. United States, 409 U.S. 470, 473, 93 S.Ct. 791, 794, 35 L.Ed.2d 1 (1973).37 Yet, in none of these cases was compensation in a form other than cash at issue. The clear implication of other decisions is that consideration other than cash—for example, any special benefits38 to a property owner's remaining properties—may be counted in the determination of just compensation. Bauman v. Ross, 167 U.S. 548, 584, 17 S.Ct. 966, 980, 42 L.Ed. 270 (1897); see 3 P. Nichols, Eminent Domain § 8.62 et seq. (rev. 3d ed. 1974).39
87
We need not, however, determine whether compensation in the form of securities would be constitutional if the Rail Act were merely an eminent domain statute; for the arguments in favor of this construction have no merit.
88
First, it is contended that despite the express provision of § 301(b) that Conrail 'shall not be an agency or instrumentality of the Federal Government,' 45 U.S.C. § 741(b) (1970 ed., Supp. III), federal participation through A 'cram-down' is permitted only if the board of directors constitutes Conrail a federal instrumentality.40 From that premise the contention proceeds that the conveyance is an exercise of eminent domain. But Conrail is not a federal instrumentality by reason of the federal representation on its board of directors. That representation was provided to protect the United States' important interest in assuring payment of the obligations L.Ed. 1400 (1946). A 'reasonable' objection Full voting control of Conrail will shift the original approval of the plan by the court. fall below 50% of Conrail's indebtedness. The responsibilities of the federal directors are not different from those of the other directors—to operate Conrail at a profit for the benefit of its shareholders. Thus, Conrail will be basically a private, not a governmental, enterprise.
89
Second, it is contended that the Rail Act's provisions for a compelled conveyance and for the continuation of rail services pending formulation of the Final System Plan constitute the Act a condemnation statute. We see significance in these features of the Act either. Congress, in enacting those provisions, clearly intended to legislate pursuant to the bankruptcy power. The Rail Act like § 77 of the Bankruptcy Act, which the Rail Act supplements, merely 'advances another step in the direction of liberalizing the law on the subject of bankruptcies,' Continental Illinois Nat. Bank & Trust Co. v. Chicago, R.I. & P.R. Co., 294 U.S. 648, 671, 55 S.Ct. 595, 604, 79 L.Ed. 1110 (1935), and 'far-reaching though (it) be, (it has) not gone beyond the limit of congressional power . . ..' Ibid. That is the teaching of RFC v. Denver & R.G. W.R. Co., 328 U.S. 495, 66 S.Ct. 1282, 90 L.Ed. 1400 (1946), where the Court sustained the 'cream-down' provision of § 77 authorizing a reorganization court to confirm a plan despite its rejection by creditors. The Court said: 'We think that the provisions for confirmation by the courts over the creditors' objection are within the bankruptcy powers of Congress. Those powers are adequate to eliminate claims by administrative valuations with judicial review and they are adequate to require creditors to acquiesce in a fair adjustment of their claims, so long as the creditor gets all the value of his lien and his share of any free assets.' Id., at 533, 66 S.Ct., at 1302.41 Similarly, under the rail ACT, THE SPECIAL COURT HAS THE duty to provide the railroad estates with the 'fair and equitable' equivalent in Conrail securities for the rail properties conveyed.
90
Finally, it is argued that there are defects in the Rail Act's provisions for judicial review that identify the Act as an exercise of the eminent domain power. The argument is frivolous. Although the time has not yet arrived for the mandatory transfer to Conrail, the reorganization courts have had a full opportunity to assess the fairness of the Rail Act's scheme to the rail estates. § 207(b). The Special Court has reviewed those determinations and under § 303(c) will have an opportunity to review the terms of the transfer, although not the conveyance itself. In addition, neither the Rail Act itself nor the procedures thereunder finally determine the interests of the respective creditors. Those will be decided in the § 77 reorganization courts, which will distribute to creditors the consideration received for the rail properties. There are, therefore, ample adequate '(s)afeguards . . . to protect the rights of secured creditors . . . to the extent of the value of the property.' Wright v. Union Central Life Ins. Co., 311 U.S. 273, 278, 61 S.Ct. 196, 199, 85 L.Ed. 184 (1940); cf. North American Co. v. SEC, 327 U.S. 686, 66 S.Ct. 785, 90 L.Ed. 945 (1946).
91
We are not to be understood to intimate that the Rail Act proceeding could not result in a compensable taking. We hold only that, since the Rail Act does not on its face exceed the broad scope of congressional power under the Bankruptcy Clause, cf. Continental Illinois Nat. Bank & Trust Co. v. Chicago, R.I. & P.R. Co., supra, 294 U.S., at 670, 55 S.Ct., at 603.42 Congress has not formulated an unconstitutional reorganization plan in compelling a reorganization wherein the compensation to appellees consists of Conrail and USRA securities and other benefits 'so long as the creditor gets all the value of his lien and his share of any free assets.' RFC v. Denver & R.G.W.R. Co., supra, 328 U.S. at 533, 66 S.Ct., at 1302.
92
This Act does differ from other reorganization statutes such as § 77, however, in that it requires a conveyance before it is possible to ascertain whether this last condition will be met. Thus, the conveyance is mandated without any prior judicial finding that there will be adequate resources in the reorganized company of whatever kind to compensate the debtor estates and, eventually, their creditors. Because of this congressional insistence upon accomplishing the transfer whatever the ultimate equity of the compensation provisions, any deficiency of constitutional magnitude in the value of the limited compensation provided under the Act will indeed be a taking of private property for public use. Cf. North American Co. v. SEC, surpa, 327 U.S. at 710, 66 S.Ct., at 798.43 Since we have already determined, however, that there would then be recourse to a Tucker Act suit in the Court of Claims for a cash award to cover any constitutional shortfall, the Rail Act does provide adequate assurance that any taking will be compensated.
93
The remaining contentions regarding the validity of the final-conveyance provisions require little discussion in view of the availability of a Tucker Act suit.
94
The first contention is that, even if considered as a reorganization statute, the Rail Act fails to assure that creditors will receive the full value of their liens in stock or securities. However, we have already held that, because of the possibility that the Rail Act will work a taking, there must be assurance of consideration equal to any constitutional shortfall, and that a Tucker Act remedy is available to provide that assurance. Thus, the value of the stocks and securities provided under the act is backed up by what is essentially a guarantee of cash payment for any lack of fairness and equity of constitutional dimensions. The Tucker Act remedy fulfills perfectly, then, the function of the underwriting provision approved in the New Haven Inclusion Cases, 399 U.S. at 486—488, 90 S.Ct., at 2106—2108.
95
Similarly, the availability of the Tucker Act cures what might otherwise be a troublesome problem of procedural due process. The Tucker Act assures that the railroad estates and the creditors will eventually be made whole for the assets conveyed. Complainants evidence no interest in retaining their property for longer than the Rail Act requires. Indeed, their position is really that they want to be free to dispose of it sooner. Thus, there is no interest asserted in retaining the properties themselves; the only interest is in making sure that creditors receive fair compensation for those properties. On the other hand, the procedural sequence is vital to accomplishing the goals of the Act. If judicial review of the terms of the transfer was required before the conveyance could occur, the conveyance might well come too late to resolve the rail transportation crisis. As long as creditors are assured fair value, with interest, for their properties, the Constitution requires nothing more.
VI
96
Validity of the Rail Act Under Uniformity Requirement of Bankruptcy Clause
97
We consider finally the contention that, because the Rail Act's provisions apply only to railroads in reorganization in the 'region,' the statute lacks the uniformity required by Art. I, § 8, cl. 4, of the Constitution giving Congress power 'To establish . . . uniform Laws on the subject of Bankruptcies throughout the United States.'
98
The District Court held that 'recourse to the bankruptcy clause to justify Congressional action is necessary only if that action impairs the obligation of contracts.' 383 F.Supp., at 534 (opinion of Fullam, J.). In that respect, the court found that the Rail Act adds virtually nothing to the powers already granted to reorganization courts under the 'uniform and admittedly valid provisions of § 77 of the Bankruptcy Act. . . . Authority to order conveyances free and clear of liens, and to 'cream down' a plan of reorganization, already exists under § 77, and is not newly created or added by the (Rail) Act.' Ibid.
99
The court determined, however, that one provision of the Rail Act is 'newly created or added by the (Rail) Act.' Section 207(b) requires the reorganization court to dismiss the § 77 proceeding if it finds that the railroad is not reorganizable on an income basis within a reasonable time, and that the Rail Act does not provide a process which would be fair and equitable to the estate of the railroad in reorganization. The District Court noted that the New Haven Inclusion Cases, supra, held that inasmuch as the plan disposed of the New Haven's assets to the Penn Central for continued operations, § 77 could be used to reorganize the enterprise as an investment holding company, 'at least where the plan contemplates that the bulk of the rail properties will continue to be operated as a railroad by someone.' 383 F.Supp., at 534. The District Court held that § 207(b) of the Rail Act precludes a like reorganization under § 77 by requiring dismissal of the § 77 proceedings, and to that extent violates the uniformity clause since this dismissal relates only to debtors within the region covered by the Rail Act.
100
We need not decide whether the District Court was correct in this respect. Following the decision of the District Court, the Penn Central Reorganization Court issued its 180-day order finding that, although Penn Central is not reorganizable on an income basis under § 77, the Rail Act does not provide a process which would be fair and equitable to the debtor's estate. 382 F.Supp. 856, 870—871. Rather than dismiss the § 77 proceeding as required by § 207(b), however, the court stayed its order pending an appeal to the Special Court. The Special Court found that the processes prescribed in the Rail Act are fair and equitable if a remedy exists under the Tucker Act, and reversed. 384 F.Supp., at 910—911. The Rail Act expressly provides that this holding is nonreviewable. § 207(b). Although we need not address today the issue whether the judgment of the Special Court is subject to review, we do hold that the Tucker Act remedy is available for any uncompensated taking occurring under the Rail Act. That holding obviates the possibility that the Penn Central Reorganization Court will ever confront the provision for dismissal of a § 77 proceeding under § 207(b) of the Rail Act.
101
There remains, however, another aspect of the uniformity issue for decision. Appellees urge that the entire Rail Act violates the uniformity clause. The argument is that the uniformity required by the Constitution is geographic, Hanover National Bank v. Moyses, 186 U.S. 181, 188, 22 S.Ct. 857, 860, 46 L.Ed. 1113 (1902), and since the Rail Act operates only in a single statutorily defined region, the Act is geographically nonuniform.
102
The argument has a certain surface appeal but is without merit because it overlooks the flexibility inherent in the constitutional provision. Section 77 was upheld against a like challenge on the ground of the 'capacity of the bankruptcy clause to meet new conditions as they have been disclosed as a result of the tremendous growth of business and development of human activities from 1800 to the present day.' Continental Illinois Nat. Bank & Trust Co. v. Chicago, R.I. & P.R. Co., 294 U.S., at 671, 55 S.Ct., at 604. The Court therefore held that, though § 77 was a distinctive and far-reaching statute, treating railroad bankruptcies as a distinctive and special problem, it was not 'beyond the limit of congressional power.'44
103
The uniformity provision does not deny Congress power to take into account differences that exist between different parts of the country, and to fashion legislation to resolve geographically isolated problems. 'The problem dealt with (under the Bankruptcy Clause) may present significant variations in different parts of the country.' Wright v. Vinton Branch of Mountain Trust Bank, 300 U.S. 440, 463 n. 7, 57 S.Ct. 556, 562, 81 L.Ed. 736 (1937). We therefore agree with the Special Court that the uniformity clause was not intended 'to hobble Congress by forcing it into nationwide enactments to deal with conditions calling for remedy only in certain regions.' 384 F.Supp., at 915.
104
The national rail transportation crisis that produced the Rail Act centered in the problems of the rail carriers operating in the region defined by the Act, and these were the problems Congress addressed.45 No railroad reorganization proceeding, within the meaning of the Rail Act, was pending outside that defined region on the effective date of the Act or during the 180-day period following the statute's effective date. Thus the Rail Act in fact operates uniformly upon all bankrupt railroads then operating in the United States and uniformly with respect to all creditors of each of these railroads.
105
The uniformity clause requires that the Rail Act apply equally to all creditors and all debtors, and plainly this Act fulfills those requirements. Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 172, 67 S.Ct. 237, 244, 91 L.Ed. 162 (1946) (Frankfurter, J., concurring). 'No provision of the Act restricts the right of any creditor wheresoever located to obtain relief because of regionalism.' 383 F.Supp., at 519.
106
Our construction of the Bankruptcy Clause's uniformity provision comports with this Court's construction of other 'uniform' provisions of the Constitution. The Head Money Cases, 112 U.S. 580, 5 S.Ct. 247, 28 L.Ed. 798 (1884), involved the levy on ships' agents or owners of a 50-cent tax for any passenger not a United States citizen who entered an American port from a foreign port 'by steam or sail vessel.' Individuals engaged in transporting passengers from Holland to the United States challenged the levy as contrary to Art. I, § 8, cl. 1, under which Congress is empowered to lay and collect 'all Duties, Imposts and Excises (which) shall be uniform throughout the United States.' The argument was that the head tax violated the uniformity clause because it was not also levied on noncitizen passengers entering this country by rail or other inland mode of conveyance. The Court upheld the tax, stating:
107
'The tax is uniform when it operates with the same force and effect in every place where the subject of it is found. The tax in this case . . . is uniform and operates precisely alike in every port of the United States where such passengers can be landed.' 112 U.S., at 594, 5 S.Ct., at 252.
108
That the tax was not imposed on noncitizens entering the Nation across inland borders did not render the tax nonuniform since 'the evil to be remedied by this legislation has no existence on our inland borders, and immigration in that quarter needed no such regulation.' Id., at 595, 5 S.Ct., at 252. Similarly, the Rail Act is designed to solve 'the evil to be remedied,' and thus satisfies the uniformity requirement of the Bankruptcy Clause. The argument that the Rail Act differs from the head tax statute because by its own terms the Rail Act applies only to one designated region is without merit. The definition of the region does not obscure the reality that the legislation applies to all railroads under reorganization pursuant to § 77 during the time the Act applies.
109
Reversed.
110
Mr. Justice STEWART dissents from the opinion and judgment of the Court, substantially for the reasons set out in Part II of the dissenting opinion of Mr. Justice DOUGLAS.
111
Mr. Justice DOUGLAS, dissenting.
112
These cases have created, as did the Penn-Central Merger cases,1 that 'hydraulic pressure' which, Mr. Justice Holmes once said, 'makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.'2
113
If the rule of law under a moral order is the measure of our responsibility, as I have always assumed, we can only hold that the Rail Act of January 2, 1974, 87 Stat. 985, 45 U.S.C. § 701 et seq. (1970 ed., Supp. III), undertakes to sanction a fraudulent conveyance, as those words were used in 13 Eliz.,3 and in our Bankruptcy Act. I have been reluctant so to conclude, implicating as it does our legislative branch in a lawless maneuver of gigantic proportions. But, baldly put, the present law is a tour de force to that end.
114
Article I, § 10, of the Constitution bars the States from passing a law 'impairing the Obligation of Contracts.' Though the Federal Government is not so enjoined, it is restrained by the Fifth Amendment which provides that no person can be deprived of 'property' without 'due process of law.' I assume it is conceded that Congress, apart from the bankruptcy power in Art. I, § 8, may not impair the obligation of contracts without violating the Due Process Clause.4 But '(t)he bankruptcy power, like the other great substantive powers of Congress, is subject to the Fifth Amendment,' as Mr. Justice Brandeis, writing for the Court in Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 589, 55 S.Ct. 854, 863, 79 L.Ed. 1593 (1935), held.
115
This does not mean that so far as rail carriers are concerned the creditors can exact their pound of flesh, dismembering or liquidating the debtor. The public interest may not be subverted in that manner. As the Court said in Continental Illinois Nat. Bank & Trust Co. v. Chicago, R.I. & P.R. Co., 294 U.S. 648, 671, 55 S.Ct. 595, 604, 79 L.Ed. 1110 (1935), a case involving a rail reorganization under § 77 of the Bankruptcy Act, 11 U.S.C. § 205:
116
'A railway is a unit; it can not be divided up and disposed of piecemeal like a stock of goods. It must be sold, if sold at all, as a unit and as a going concern. Its activities can not be halted because its continuous, uninterrupted operation is necessary in the public interest . . ..'
117
Congress made such findings in these cases in § 101(a) of the Act, 45 U.S.C. § 701(a) (1970 ed., Supp. III). Hence the congressional objective in the Rail Act of preserving the assets of these six railroads5 as part of a continuing enterprise in the form of a new corporation (for convenience called Conrail6) is well within the Bankruptcy Clause. The question remains, however, whether by the means it has chosen Congress has transgressed constitutional boundaries.
118
* The property is 'taken for public use' within the meaning of the Fifth Amendment. First is the mandate of Congress. The Rail Act provides for an obligatory transfer of the assets of these companies to Conrail. The creditors, the trustees, the stockholders, the reorganization judge have no other option. The record makes abundantly clear what all the parties concede, that Conrail, though dubbed 'a for-profit corporation' by § 301 (b) Act, 45 U.S.C. § 741(b) (1970 ed., Supp. III), shows no prospect of being an enterprise operating on a profitable basis.7 Penn Central losses between June 21, 1970, and December 31, 1973, were $851 million, and the Reorganization Court,8 whose judgment we are not reviewing, found that reorganization on an income basis was not possible. The values that ride on today's decisions are therefore not based on the prospect of future profitable operations.9 The only consideration in the framework of the Act which provides 'just compensation' for the taking is in the form of 'securities' of Conrail, § 206(d)(1), 45 U.S.C. § 716(d)(1) (1970 ed., Supp. III). If those 'securities' are common stock, they will have value only insofar as Conrail will be a viable entity which generates income in excess of costs and fixed charges. If the trustees under § 77 cannot make ends meet, there is no reason to expect that Conrail can. Conrail, to be sure, is made eligible to receive obligations of the United States Railway Association (USRA), an incorporated nonprofit association created by the Act to issue obligations not exceeding $1,500,000,000, which are Treasury, § 210, 45 U.S.C. § 720 (1970 Treasury, § 210, 45 U.S.C. § 720 (1970) ed., Supp. III). But of this one billion and a half not more than one billion can be issued to Conrail; of that one billion 'not less than $500,000,000 shall be available solely for the rehabilitation and modernization' of the rail properties, § 210(b). Hence $500 million might be apportioned under a plan to creditors. But if the Special Court determines under § 303(c), 45 U.S.C. § 743(c) (1970 ed., Supp. III), that the value of the securities given creditors in exchange for the property pledged under prior law for payment of their claims is less than the fair value of the properties conveyed, the Special Court can under § 303(c)(2) do only three things:
119
1. Reallocate the securities issued;
120
2. Require Conrail to issue additional securities;
121
3. Enter a deficiency judgment against Conrail.
122
The common stock of Conrail is plainly only token payment. Issuance of new and different securities by Conrail would have to have interest or dividend rights to be marketable and that would bring back into play some of the forces that plague the present trustees under § 77. Any securities issued by Conrail must 'minimize any actual or potential debt burden' of Conrail, § 206(i), 45 U.S.C. § 716(i) (1970 ed., Supp. III). Moreover, § 301(d) of the Rail Act provides that so long as more than half the debt of Conrail is guaranteed by the Government, a majority of the 15 directors are designated from outside—the Secretary of Transportation, the Chairman and the President of USRA, and five others named by the President with the consent of the Senate. One cannot read the Rail Act and believe that Congress thought that federal money going into Conrail could be made subordinate to any debt created by Conrail. A contrary assumption would make the watch-dog purpose of § 301(d) quite superfluous. Yet, unless Conrail's new debt were serviced, it could not be marketed and even if it were, it could add no element of value to the compensation received by the creditors of these railroads under a reorganization plan. The upshot is that compensation for properties acquired by Conrail would be mostly paid for in Conrail stock with a sprinkling of the bonds of the Association issued to Conrail, assuming that they were not expended in the operations of Conrail between the time it started its operation and the date of the final plan of reorganization.
123
The value of the properties to be transferred has not yet been determined. We held in the New Haven Inclusion Cases, 399 U.S. 392, 489, 90 S.Ct. 2054, 2108, 26 L.Ed.2d 691 (1970), where the New Haven road was being shut down and its assets sold, that just compensation was to be measured by the 'highest and best value' of the assets sold. In that case that value was liquidation value. In light of the findings of the Reorganization Courts in the present cases, we cannot say that the $500 million of federally guaranteed bonds comes anywhere near any reasonably assured value.10 Value of any substantial amount cannot be attributed to the common stock of Conrail, because most of the problems of the existing roads will be inherited by Conrail and its prospects of generating income in excess of costs and fixed charges are, if not nil, remote. It would be irony to call entry of a deficiency judgment against Conrail adequate to make up any deficiency. For that judgment would only eat away at any value which the common stock of Conrail had.
124
The vicious character of these legislative decisions is emphasized by the cream-down provision of the Rail Act. In § 77 proceedings there is a cramdown provision to prevent one class from a holdup of a fair and equitable plan. Section 77, however, allows a cram-down only if the Court first finds the plan fair and equitable and after the security holders have had their hearing. Under the Rail Act the assets are first transferred to Conrail even before the Special Court has made its 'fair and equitable' finding. Moreover, the security holders never have a vote on the plan.
125
Congress has lowered all the procedural barriers and foisted on these rail carriers a conveyance of their assets which, if done by private parties in control of a bankrupt estate, would be a fraudulent conveyance. Here it is achieved by Congress' purporting to act in the 'public interest.' That is a taking for a public purpose; but by Fifth Amendment standards it is a taking of property without assurance of just compensation.
II
126
The Court relies, as do all parties who seek to sustain the statute, on the assumed availability of a suit in the Court of Claims under the Tucker Act, 28 U.S.C. § 1491, to recover any shortfall between fair liquidation value and the compensation the bankrupt roads receive under the Rail Act. The Solicitor General, while initially arguing that the judgment below could be reversed without reaching the Tucker Act question, now pitches his argument in support of the statute chiefly upon the availability of a Tucker Act suit.
127
The Tucker Act confers jurisdiction on the Court of Claims
128
'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.'
129
The Rail Act neither expressly permits nor expressly excludes a suit under § 1491. USRA says that '(o)ne searches the Rail Act in vain for a sentence such as 'The Court of Claims shall have no jurisdiction over any action alleging that the property of any person has been taken pursuant to this Act without just compensation." But this observation is only the beginning of analysis. It is not enough merely to note that the Rail Act carves out no exception to § 1491 in express words. 'Statutory interpretation requires more than concentration upon isolated words; rather, consideration must be given to the total corpus of pertinent law and the policies that inspired ostensibly inconsistent provisions.' Boys' Markets, Inc. v. Retail Clerks, 398 U.S. 235, 250, 90 S.Ct. 1583, 1592, 26 L.Ed.2d 199 (1970). This precept requires us to inquire whether provisions that are not mutually exclusive by their terms are so divergent in approach that they cannot co-exist in a particular setting. Congress may provide a mechanism for dealing with a particular problem that by its structure and purpose is inconsistent with a traditional avenue of relief applicable to a broader class of cases. Under these circumstances, Congress may have supplanted the traditional remedy, albeit by implication. In my view, this is precisely what Congress has done in the Rail Act.
130
The Act provides a strict timetable for bringing Conrail into operation. USRA is expected to present the Final System Plan to Congress within 570 days of the enactment of the Rail Act.11 The Plan is deemed approved unless Congress specifically disapproves within a specified period. § 208(b). Once the plan is approved, USRA must certify it to the three-judge Special Court within 90 days, § 209(c). Within 10 days after certification, Conrail must deposit its stock and securities with the Special Court, § 303(a), and the court must direct the conveyance of properties to Conrail pursuant to the plan within 10 days thereafter, § 303(b).
131
Congress plainly sought expedition in the process of creating Conrail. This is apparently the reason for deferring until after the transfer of the properties the question of valuation and distribution of stock to the contributing railroads.12 The policy of expedition carries over into the provisions for judicial participation in this process. Appeals from decisions of the reorganization district courts concerning the inclusion of the debtor roads in the provisions of the Rail Act lie exclusively to the Special Court; its decision in these appeals must be made within 80 days, § 207(b), 45 U.S.C. § 717(b) (1970 ed., Supp. III). Once the Final System Plan is approved by Congress, § 209(b) of the Act, 45 U.S.C. § 719(b) (1970 ed., Supp. III), provides for consolidation in the Special Court of 'all judicial proceedings with respect to the final system plan.' The decision of the Special Court regarding the distribution of Conrail stock and securities pursuant to § 303(c) is appealable directly to this Court. We are directed to give the appeal 'the highest priority' and even to dismiss it within seven days if we conclude that its pendency 'would not be in the interest of an expeditious conclusion of the proceedings.' § 303(d).
132
A suit in the Court of Claims would be quite an odd appendage to the streamlined judicial procedures just described. The language of § 209(b) vesting in the Special Court 'all judicial proceedings with respect to the final system plan' immediately raises doubt that a Tucker Act remedy is compatible with the Act.13 The doubt is amplified when one looks at the entire scheme of judicial participation. I do not think that Congress, in setting up a Special Court, consolidating proceedings, limiting appeals, and demanding expeditious decisions, intended at the same time to permit yet another round of litigation on the compensation question to begin in the Court of Claims after all the procedures mandated by the Rail Act had been exhausted.
133
Despite the obvious frustration of the policy of expedition, the inference that a Tucker Act remedy is available might still be justified were it not for the special features of the compensation arrangement that limit the infusion of federal funds. As will be seen, these features were important to Congress, and they are circumvented if a suit in the Court of Claims is allowed.
134
The Special Court, after it has directed the transfer to Conrail of 'all right, title, and interest' in the properties of contributing roads designated in the Final System Plan, § 303(b), must determine whether the transfers of property from the bankrupt roads are 'fair and equitable to the estate.' But the Special Court has only limited tools for rectifying any unfairness or inequity it finds, and the limitations on its powers quite clearly indicate congressional intent to limit the commitment of federal funds. The preferred form of compensation to the debtor roads is stock of Conrail. § 303(c)(2)(A). If the stock is insufficient, the Special Court may next order distribution of Government-guaranteed obligations of Conrail, § 303(c)(2)(B), but these are limited in face value to $500 million,14 absent an authorization by joint resolution of Congress to exceed the limitation. If any shortfall remains after distribution of stock and Government-guaranteed obligations, the Special Court is directed to enter a deficiency judgment against Conrail, § 303 (c)(2) is against the corporation and not the United States, with the apparent purpose of protecting the Treasury from a liability of unanticipated magnitude. As Representative Adams, one of the principal architects of the Rail Act in the House, explained when specific assurances about the federal exposure were sought early in debate on the bill:
135
'Mr. ADAMS. There is a specific limitation in the final bill which says no more than $200 million (later raised to $500 million) of Government loan guarantees can be used for acquisition in any event, so if the court in 5 to 10 years should come in with a higher value, the only judgment would be against this new corporation that is there.
136
'Under the New Haven case the court was placed in this kind of position that if it loads up that new corporation with a debt structure by requiring it to issue additional bonds, it lowers the value of the common stock, which is what it is being paid for in terms of these assets.
137
'Mr. RUPPE. Does it not have to deliver more stock? It seems to me from reading the language that we have to cause the corporation securities issued in payment of the properties to have a value which is a fair and equitable value as determined by the court.
138
'Mr. ADAMS. That is correct, but that is this corporation's and not the taxpayers of the United States money.' 119 Cong.Rec. 36355 (1973).
139
The possibility that there might be a large deficiency judgment was not unnoticed. See id., at 36352 (remarks of Rep. Skubitz) and 36355 (remarks of Rep. Shoup). But those who adverted to this possibility noted that Congress would have an opportunity to consider later whether to deal with it by relaxing the limitations on the amount of Government loan guarantees available to Conrail, by means of a joint resolution as provided in § 210(b). Congress was thus to have a 'second look' at the debt structure of Conrail after the Special Court valuation proceedings had concluded; at that point Congress might improve the corporation's balance sheet by an additional commitment from public funds. What is clear, however, is that Congress intended to preserve a choice whether to allow Conrail to begin life with a large deficiency judgment unalleviated by further federal aid.15
140
To hold that a Tucker Act remedy is available is, first, to leave just compensation of security holders to wholly speculative chances that Congress might grant it and, second, to deprive Congress of that opportunity to choose, since the bankrupt estates would be permitted to obtain a deficiency judgment against the United States after proceedings under the Rail Act have been exhausted. Assurances against such an eventuality were given in the following colloquy between two of the managers for the House, during debate on the conference report:
141
'Mr. KUYKENDALL. Mr. Speaker, I would like to ask the gentleman from Washington to clarify one point, and that is the matter of the deficiency judgment. There was a lot of colloquy in the original debate which expressed fears that the Federal court had the key to the Treasury.
142
'Will the gentleman give us his interpretation of the guarantees we have to keep that from happening in the court proceedings?
143
'Mr. ADAMS. Mr. Speaker, there is a definite limitation on the total amount that can be authorized under this bill. Any amounts that go beyond that, or the shifting of the way in which it is spent, is to be approved by an act of Congress, to be signed by the President. It is defined as a joint resolution in the bill, and the statement of the managers, and it was the clear intent of the managers that any amount other than common stock was to be at the lowest possible limit to meet the constitutional guarantees.
144
'Mr. KUYKENDALL. Mr. Speaker, is it not true, I will ask the gentleman from Washington (Mr. Adams) that the creditors, of course, are given protection, and that the Board of Directors, under the control of Government officials, is the owner of the entire block of stock of 100 million shares, whatever it is?
145
'Mr. ADAMS. The gentleman is correct. It is controlled by the United States, so long as the Secretary determines that there is an amount of obligation funds which the United States might, in any way ever, have to have anything to do with.
146
'During that period of time, it is controlled by a board of directors which consists of Government officials.
147
'Mr. KUYKENDALL. There is no way the Federal Court may assess the taxpayers or this Congress on the judgments of the creditors; is that correct?
148
'Mr. ADAMS. The gentleman is correct.
149
'Mr. KUYKENDALL. There is no way they can assess the Congress for the money?
150
'Mr. ADAMS. The gentleman is correct.' 119 Cong.Rec. 42947 (1973).
151
None of these comments refer expressly to the Court of Claims or to the Tucker Act. But the implication of depriving the courts of a 'key to the federal Treasury' is powerful, and the reference to 'assess(ing) Congress for the money' equally so, since that is in practical terms what the Court of Claims does. For me, the import of the words is clear: there was to be no possibility that an aggrieved party was to have recourse against the United States in such a way as to circumvent the limitations on federal funds embodied in the Rail Act.16 On oral argument as amicus curiae, Representative Adams stated that Congress had not repealed the Tucker Act. The majority seizes upon this statement as a concession that suit might be brought in the Court of Claims to supplement compensation. But that interpretation of his words is overborne by the manifestations of a contrary congressional intent reviewed above. Mr. Adams' remarks, however, have a straightforward import that accords with the colloquy cited above and with the position taken in the brief he filed with this Court, which urged us to uphold the Rail Act without reference to a Tucker Act remedy. His remarks confirm that the Tucker Act remains available to enforce obligations against the United States (and not merely against Conrail) created by the Act. For example, should the Government fail to make good on its guarantee of bonds issued under § 210, holders thereof could obtain relief in the Court of Claims.
152
We are asked to infer a Tucker Act remedy by applying the canon that favors interpretations of statutes that avoid substantial constitutional questions. See, e.g., United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 407 408, 29 S.Ct. 527, 535—536, 53 L.Ed. 836 (1909); United States v. Jin Fuey Moy, 241 U.S. 394, 36 S.Ct. 658, 60 L.Ed. 1061 (1916); Richmond Screw Anchor Co. v. United States, 275 U.S. 331, 48 S.Ct. 194, 72 L.Ed. 303 (1928); Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932); Screws v. United States, 325 U.S. 91, 98, 65 S.Ct. 1031, 1033, 89 L.Ed. 1495 (1945). As originally stated, the proposition was that where a statute is 'reasonably susceptible of two interpretations,' the courts will choose the one that steers clear of collision with constitutional limitations. United States ex rel. Attorney General v. Delaware & Hudson Co., supra 213 U.S. at 407, 29 S.Ct. at 535; Texas v. Eastern Texas R. Co., 258 U.S. 204, 217, 42 S.Ct. 281, 283, 66 L.Ed. 566 (1922). The principle is applied so as to preserve substantially the legislative purpose, even where a statute must be tailored to avoid a question of constitutional infirmity. See Screws v. United States, supra; Crowell v. Benson, supra; FTC v. American Tobacco Co., 264 U.S. 298, 44 S.Ct. 336, 68 L.Ed. 696 (1924). In more recent applications, however, the Court has on occasion abandoned any fidelity to congressional intent in order to avoid a constitutional question. See United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770 (1953); United States v. CIO, 335 U.S. 106, 130, 68 S.Ct. 1349, 1361, 92 L.Ed. 1849 (1948) (Rutledge, J., concurring). In those cases, I believe, the Court engaged in a judicial rewriting of the relevant congressional Acts, and I concurred in the result only after reaching the constitutional questions the Court avoided. Today's decision, however, goes well beyond what was done in Rumely and CIO. In those cases, as in most that have applied the canon of construction, the Court has narrowed the congressional regulatory scheme in order to avoid confronting the possibility of overreaching. See United States ex rel. Attorney General v. Delaware & Hudson Co., supra; United States v. Jin Fuey Moy, supra; Texas v. Eastern Texas R. Co., supra; FTC v. American Tobacco Co., supra; Blodgett v. Holden, 275 U.S. 142, 148, 48 S.Ct. 105. 107, 72 L.Ed.2d 306 (1927) (Holmes, J., concurring); Missouri Pacific R. Co. v. Boone, 270 U.S. 466, 46 S.Ct. 341, 70 L.Ed. 688 (1926). Today, however, the Court expands the opportunities for correcting unfairness in the congressional program, foisting upon Congress a device it never chose and indeed thought it had rejected. Today's holding thus represents a sheer tour de force. Cf. United States v. Seeger, 380 U.S. 163, 188, 85 S.Ct. 850, 865, 13 L.Ed.2d 733 (1965) (Douglas, J., concurring). This judicial legislation transgresses the bounds of our responsibility to avoid unnecessary constitutional questions. What Mr. Justice Cardozo said in Moore Ice Cream Co. v. Rose, 289 U.S. 373, 53 S.Ct. 620, 77 L.Ed. 1265 (1933), bears repeating:
153
"A statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score.' (Citation omitted.) But avoidance of a difficulty will not be pressed to the point of disingenuous evasion. Here the intention of the Congress is revealed too distinctly to permit us to ignore it . . .. The problem must be faced and answered.' Id., at 379, 53 S.Ct., at 622.
154
See also Aptheker v. Secretary of State, 378 U.S. 500, 515, 84 S.Ct. 1659, 1668, 12 L.Ed.2d 992 (1964); United States v. CIO, supra, 335 U.S., at 129—130, 68 S.Ct., at 1360—1361 (Rutledge, J., concurring).
155
The drafters of the Rail Act wrote against a background of reorganization law, in which the Tucker Act has never before been regarded as a device for escaping constitutional questions. Challenges to bankruptcy legislation as permitting unconstitutional deprivations of property have occurred before. Our cases until today have faced these challenges without adverting to any Tucker Act remedy. See Continental Illinois Nat. Bank & Trust Co. v. Chicago, R.I. & P.R. Corp., 294 U.S. 648, 55 S.Ct. 595, 79 L.Ed. 1110 (1935); Louisville Joint Stock Land Bank & Radford, 295 U.S. 555, 55 S.Ct. 854, 79 L.Ed. 1593 (1935); Wright v. Vinton Branch, 300 U.S. 440, 57 S.Ct. 556, 81 L.Ed. 736 (1937); Ecker v. Western Pacific R. Co., 318 U.S. 448, 63 S.Ct. 692, 87 L.Ed. 892 (1943).17 In construing the Rail Act to embrace a Tucker Act remedy, the Court disregards this tradition, and in this case opens up the possibility which Congress sought diligently to avoid—the imposition of a large financial burden upon the Treasury for the Conrail acquisition.
156
The Court of Claims is without power to enforce its judgments. While those amounting to less than $100,000 are paid from a general appropriation, the payment of judgments exceeding this sum require special action by Congress. Ordinarily, of course, Congress pays these judgments as a matter of routine. See Glidden Co. v. Zdanok, 370 U.S. 530, 570—571, 82 S.Ct. 1459, 1483—1484, 8 L.Ed.2d 671 (1962). But this is an exceptional case, involving the possibility of judgments in the billions of dollars.
157
The construction the Court gives the Rail Act today will amaze the legislators who drafted and voted for this statute. I cannot believe that Congress would have enacted this law had it been told that in the end it might have to dig into taxpayers' pockets not for the one billion appropriated but for unknown billions—perhaps 10 or 12 billion—for 'just compensation' for property it authorized to be 'taken.'
III
158
Article I, § 8, cl. 4, of the Constitution empowers Congress to establish 'uniform Laws on the subject of Bankruptcies throughout the United States.' This Court held many years back that that requirement required 'geographical' uniformity. Its main purpose was to treat claimants against debtors the same in one area as in another. As stated by Mr. Justice Frankfurter, concurring in Vanston Bondholders-Protective Committee v. Green, 329 U.S. 156, 172—173, 67 S.Ct. 237, 244, 91 L.Ed. 162 (1946):18
159
'The Constitutional requirement of uniformity is a requirement of geographic uniformity. It is wholly satisfied when existing obligations of a debtor are treated alike by the bankruptcy administration throughout the country regardless of the State in which the bankruptcy court sits. See Hanover National Bank v. Moyses, 186 U.S. 181, 190, 22 S.Ct. 857, 861, 46 L.Ed. 1113. To establish uniform laws of bankruptcy does not mean wiping out the differences among the forty-eight States in their laws governing commercial transactions. The Constitution did not intend that transactions that have different legal consequences because they took place in different States shall come out with the same result because they passed through a bankruptcy court. In the absence of bankruptcy such differences are the familiar results of a federal system having forty-eight diverse codes of local law. These differences inherent in our federal scheme the day before a bankruptcy are not wiped out or transmuted the day after.'
160
The Solicitor General makes the curious argument that the Commerce Clause power which supports the continuance of this rail system requires no uniformity. But it is the bankruptcy power that gives Congress power to cut down on the obligation of contracts. Recourse to the Bankruptcy Clause is necessary to sustain this statute, for, as noted below, it authorizes significant impairment beyond that permitted under § 77.
161
The Act applies not across the Nation but only in the midwest and northeast region of the United States. Section 102(13), 45 U.S.C. § 702(13) (1970 ed., Supp. III), indeed so defines 'region.' It is to that 'region' that USRA is confined by § 202(b), 45 U.S.C. § 712(b) (1970 ed., Supp. III), in the performance of its various duties. Reporting features of the Act reach only railroads in this 'region.' § 203(a), 45 U.S.C. § 713(a) (1970 ed., Supp. III). The Secretary of Transportation is likewise so confined. § 204(a), 45 U.S.C. § 714(a) (1970 ed., Supp. III). So is the new office—Rail Services Planning Office—in the Interstate Commerce Commission. §§ 205(a), (d), 45 U.S.C. §§ 715(a), (d) (1970 ed., Supp. III). The 'final system plan' covers only rail service in this 'region.' §§ 206(a), (c), (d), 45 U.S.C. §§ 716(a), (c), (d) (1970 ed., Supp. III). In short, the Act would have to be amended to make its procedure applicable to rail carriers not in the midwest and northeast region. The Solicitor General is therefore quite wrong when he says that the Rail Act applies with the same force and effect wherever railroad reorganizations are found.
162
The Special Court is a bankruptcy court, for Congress has given it 'such powers' as 'a reorganization court' has. § 209(b), 45 U.S.C. § 719(b) (1970 ed., Supp. III). And, 'a railroad in reorganization' as defined in § 102(12) includes those in § 77 of the Bankruptcy Act. That means that a railroad in § 77 proceedings but not located in the midwest and northeast region has more benign treatment than the six rail carriers before us in these cases. The importance of that difference is felt among the ranks of security holders: security holders of rail carriers who now or in the future are in a § 77 reorganization in the South or West will receive more considerate treatment than plaintiffs below in these cases. The differences are not minor but exceedingly substantial.
163
(1) Under § 77, as we held in the New Haven Inclusion Cases, supra, a plan was approved whereby the rail assets were disposed of with a view to reorganizing the remaining enterprise as an investment company. Under the Rail Act, § 207(b) mandates a dismissal if 'this chapter does not provide a process which would be fair and equitable to the estate of the railroad.' 45 U.S.C. § 717(b) (1970 ed., Supp. III). As the Reorganization Court held, the plan approved in the New Haven Inclusion Cases would not be permissible under the Rail Act, as the Rail Act nowhere envisages a bifurcated reorganization, one for nonrail assets and another for rail assets. The only choice is between an overall reorganization on the one hand and a dismissal whereupon all the diversities of the old equity receivership can be explored. Thus, security holders of companies reorganized under the Act are deprived of advantages which security holders of other rail carriers in § 77 proceedings enjoy.
164
(2) In a sale or conveyance of assets pursuant to a plan under § 77, any lien on those assets is transferred to the proceeds. § 77(o). But by reason of § 303(b)(2) of the Rail Act the transfer is 'free and clear of any liens or encumbrances.'
165
(3) Under § 77(d) before a plan can be consummated, the judge (as well as the Interstate Commerce Commission) must find it to be 'fair and equitable.' Under the Rail Act, § 303(c), that finding is made only ex post facto. Thus the pressures are on to consummate the plan with no alternatives open to the Special Court except dismissal. The choice under § 77, which the New Haven Inclusion Cases, illustrate, is barred; and the security holders here lack the benefit of the expertise of the Interstate Commerce Commission to which the courts give very great deference. See Ecker v. Western Pacific R. Corp., 318 U.S. 448, 472—475, 63 S.Ct. 692, 706—708, 87 L.Ed. 892 (1943). The ex post facto finding on the 'fair and equitable' prerequisite of this plan robs these security holders of protective measures that security holders enjoy in reorganizations of rail carriers in other geographical areas.
166
(4) While the Rail Services Planning Office is directed to hold public hearings on the 'preliminary system plan,' § 207(a)(2), it is USRA that prepares the final system plan, §§ 207(c), (d), and submits it to the Congress. § 208. That submission to Congress is, however, perfunctory in the sense that the plan clears that hurdle unless Congress disapproves it. Under § 77(e) the security holders ('all parties in interest') have a right to be heard before the court approves a plan. Under the Rail Act no like hearing is granted. The denial of the right to be heard may at times amount to a denial of due process. I intimate no opinion on whether such a right could be constitutionally eliminated from all § 77 rail reorganizations.19 But where the security holders of some rail carriers under § 77 are given that right and those who are claimants against plaintiffs below are denied it, that provision of this Rail Act obviously lacks that 'uniformity' which the Constitution mandates.
167
While we have heretofore recognized that local variations by reason of state law governing the rights of creditors and debtors may be honored in bankruptcy without violating the uniformity clause,20 we have never sanctioned a harsher bankruptcy procedure for the same class of debtors in one region than is applied to the same class in a different region. The bankruptcy court may, of course, be empowered to make its orders turn on the availability of credit which may be existent in one area but not in another.21 But down to this day we have never dreamed of allowing debtors in the same class and their creditors to be treated more leniently in one region than in another.22
168
My conclusion that his Rail Act does not have that 'uniformity' required by Art. I, § 8, cl. 4, of the Constitution does not mean that it is unconstitutional in its entirety. It does mean, however, that the four ways in which 'uniformity' is lacking must be remedied before the present group of security holders can be made to suffer both from § 207(b) of the Act and from the cramdown provisions in § 303, including the absence of any meaningful right of the security holders to be heard on the fair-brances.'
169
We are urged to bow to the pressure of events and expedite in the public interest the reorganization of these six rail carriers. An emergency often gives Congress the occasion to act. But I know of no emergency that permits it to disregard the Just Compensation Clause of the Fifth Amendment or the uniformity requirement of the Bankruptcy Clause of the Constitution.
170
I fear that the 'hydraulic pressure' generated by this case will have a serious impact on a historic area of the law, jealously protected over the centuries by courts of equity in the interests of justice.
*
(U.S. Reports Title: Regional Rail Reorganization Act Cases)
1
The judgment was entered in three consolidated cases. One action was brought in the District Court for the Eastern District of Pennsylvania by Connecticut General Insurance Corp. and others against the United States, the United States Railway Association (USRA), and the Secretaries of Treasury and Transportation and the Chairman of the Interstate Commerce Commission in their capacities as incorporators and directors of USRA. A second action was brought in the District Court for the District of Columbia by Penn Central Co., a creditor and the sole stockholder of Penn Central Transportation Co. (Penn Central), now in reorganization under § 77 of the Bankruptcy Act, against the same defendants named in the first action. A third action was brought in the District Court for the District of Columbia by Richard J. Smith, Trustee of the property of the New York, New Haven & Hartford Railroad Co. (New Haven Trustee) against the United States, USRA, and the Secretary of Transportation. Three-judge courts were convened in each suit but, by consent of the parties, the second and third actions were transferred to the Eastern District and consolidated for disposition before the three-judge court convened in that action. The Trustees of Penn Central intervened.
Three direct appeals and one cross-appeal from the District Court's judgment were consolidated for decision in this Court. No. 74—165 is the appeal of the Trustees of Penn Central; No. 76—167 is the appeal of USRA; No. 74—168 is the appeal of the United States; and No. 74—166 is the cross-appeal of the New Haven Trustee.
2
The Rail Act defines 'Region' as the 'States of Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, West Virginia, Ohio, Indiana, Michigan, and Illinois; the District of Columbia; and those portions of contiguous States in which are located rail properties owned or operated by railroads doing business primarily in the aforementioned jurisdictions (as determined by the (Interstate Commerce) Commission by order).' § 102(13), 45 U.S.C. § 702(13) (1970 ed., supp. III). ICC Order Ex parte No. 293, approved January 14, 1974, delineated areas near Louisville, Ky.; St. Louis, Mo.; and Kewaunee and Manitowoc, Wis., as included in the Region. 39 Fed.Reg. 3605 (1974).
3
In addition to Penn Central, the railroads are the Reading (In re Reading Co., Bky. No. 71—828, E.D.Pa.), Erie Lackawanna (In re Erie Lackawanna R. Co., No. B72—2838, N.D.Ohio), Central of New Jersey (In re Central R. Co. of New Jersey, No. B401—67, N.J.), Lehigh Valley (In re Lehigh Valley R. Co., Bky. No. 70—432, E.D.Pa.), Boston & Maine (In re Boston & Maine Corp., Bky. No. 70 250—M, Mass.), Ann Arbor (In re Ann Arbor R. Co., Bky. No. 74 90833, E.D.Mich.), and the Lehigh & Hudson River (In re Lehigh & Hudson River R. Co., No. 72—B—419, S.D.N.Y.).
The following lessors of leased lines of Penn Central also filed § 77 petitions in the District Court for the Eastern District of Pennsylvania in Bky. No. 70—347: United New Jersey Railroad & Canal Co.; Beech Creek Railroad Co.; Cleveland, Cincinnati, Chicago & St. Louis Railway Co.; Cleveland & Pittsburgh Railroad Co.; Connecting Railway Co.; Delaware Railroad Co.; Erie & Pittsburgh Railroad Co.; Michigan Central Railroad Co.; Northern Central Railway Co.; Penndel Co.; Philadelphia Baltimore & Washington Railroad Co.; Philadelphia & Trenton Railroad Co.; Pittsburgh, Youngstown & Ashtabula Railway Co.; Pittsburgh, Fort Wayne & Chicago Railway Co.; and Union Railroad Co. of Baltimore.
4
These included the Emergency Rail Services Act of 1970, 84 Stat. 1975, 45 U.S.C. § 661 et seq., which authorized the Secretary of Transportation to guarantee up to $125 million in certificates issued by trustees of railroads in reorganization if he found, inter alia, that there was a threat of imminent cessation of essential rail services and that the only practicable means of meeting expenses necessary to continue such services was the issuance of such guaranteed certificates.
5
The Erie Lackawanna and Boston & Maine reorganization courts each determined that its railroad is reorganizable on an income basis within a reasonable time; reorganization of those railroads will not proceed under the Rail Act. In Erie Lackawanna R. Co., No. B72—2838, Order No. 234 (N.D.Ohio, May 2, 1974); In re Boston & Maine Corp., 378 F.Supp. 68 (Mass.1974).
6
Three reorganization courts found that the Rail Act does not provide a process that is fair and equitable to the estates of the railroads under their jurisdiction. In re Penn Central Trans. Co., 382 F.Supp. 856 (E.D.Pa.1974); In re Lehigh Valley R. Co., 382 F.Supp. 854 (E.D.Pa.1974); In re Penn Central Trans. Co. (Secondary Debtors), 382 F.Supp. 821 (E.D.Pa.1974); In re Central R. Co. of New Jersey, Bky. No. 401—67 (N.J. June 28, 1974); In re Lehigh & Hudson River R. Co., 377 F.Supp. 475 (S.D.N.Y.1974). The Special Court established under § 209(b), see n. 7, infra, on September 30, 1974, reversed the orders in those cases and directed reorganization under the Rail Act, 384 F.Supp. 895.
Two other reorganization courts held that the Rail Act does provide a fair and equitable process and ordered that reorganization proceed under the Rail Act. In re Reading Co., 378 F.Supp. 481 (E.D.Pa.1974); In re Ann Arbor R. Co., No. 74—90833 (E.D.Mich. July 1, 1974).
7
Section 209(b) provides in pertinent part:
'Within 30 days after January 2, 1974, (USRA) shall make application to the judicial panel on multi-district litigation authorized by section 1407 of Title 28 for the consolidation in a single, three-judge district court of the United States of all judicial proceedings with respect to the final system plan. . . . Such proceedings shall be conducted by the special court which shall be composed of three Federal judges who shall be selected by the panel . . .. The special court is authorized to exercise the powers of a district judge in any judicial district with respect to such proceedings and such powers shall include those of a reorganization court. The special court shall have the power to order the conveyance of rail properties of railroads leased, operated, or controlled by a railroad in reorganization in the region. . . .'
The Judicial Panel on Multidistrict Litigation selected Circuit Judge Henry J. Friendly, Circuit Judge Carl McGowan, and District Judge Roszel C. Thomsen to compose the Special Court.
8
Section 206(c) provides as follows for the designation of rail properties for the Final System Plan:
'(c) Designations.
'The final system plan shall designate—
'(1) which rail properties of railroads in reorganization in the region or of railroads leased, operated, or controlled by any railroad in reorganization in the region—
'(A) shall be transferred to (Conrail);
'(B) shall be offered for sale to a profitable railroad operating in the region and, if such offer is accepted, operated by such railroad; the plan shall designate what additions shall be made to the designation under subparagraph (A) of this paragraph in the event such profitable railroad fails to accept such offer;
'(C) shall be purchased, leased, or otherwise acquired from (Conrail) by the National Railroad Passenger Corporation . . .;
'(D) may be purchased or leased from (Conrail) by a State or a local or regional transportation authority to meet the needs of commuter and intercity rail passenger service; and
'(E) if not otherwise required to be operated by (Conrail), a government entity, or a responsible person, are suitable for use for other public purposes, including highways, other forms of transportation, conservation, energy transmission, education or health care facilities, or recreation . . .; and
'(2) which rail properties of profitable railroads operating in the region may be offered for sale to (Conrail) or to other profitable railroads operating in the region subject to paragraphs (3) and (4) of subsection (d) of this section.'
Section 206(d) provides as follows respecting transfers to Conrail:
'(d) Transfers.
'All transfers or conveyances pursuant to the final system plan shall be made in accordance with, and subject to, the following principles:
'(1) All rail properties to be transferred to (Conrail) by a profitable railroad, by trustees of a railroad in reorganization, or by any railroad leased, operated, or controlled by a railroad in reorganization in the region, shall be transferred in exchange for stock and other securities of (Conrail) (including obligations of (USRA)) and the other benefits accruing to such railroad by reason of such transfer.'
Sections 210(b), 213, 214, and 215 provide as respects federal funds as follows:
Sections 210(b), 213, 214, and 215 provide
'(b) Maximum obligational authority.
'Except as otherwise provided in the last sentence of this subsections under this chapter such sums as are necessary, not to exceed $5,000,000, to remain available until expended. . . .
'(c) Association.
'There are authorized to be appropriated to (USRA) for purposes of carrying out its administrative expenses under this chapter such sums as are necessary, not to exceed $26,000,000, to remain available until expended.' § 214, 45 U.S.C. § 724 (1970 ed., Supp. III).
'Prior to the date upon which rail properties are conveyed to (Conrail) under this chapter, the Secretary, with the approval of (USRA), is authorized to enter into agreements with railroads in reorganization in the region (or railroads leased, operated, or controlled by railroads in reorganization) for the acquisition, maintenance, or improvement of railroad facilities and equipment necessary to improve property that will be in the final system plan. Agreements entered into pursuant to this section shall specifically identify the type and quality of improvements to be made pursuant to such agreements. Notwithstanding section 720(b) of this title, (USRA) shall issue obligations under section 720(a) of this title in an amount sufficient to finance such agreements and shall require (Conrail) to assume any such obligations. However, (USRA) may not issue obligations under this section in an aggregate amount in excess of $150,000,000. . . .' § 215, 45 U.S.C. § 725 (1970 ed., Supp. III).
tion, the aggregate amount of obligations of (USRA) issued under this section which may be outstanding at any one time shall not exceed $1,500,000,000 of which the aggregate amount issued to (Conrail) shall not exceed $1,000,000,000. Of the aggregate amount of obligations issued to (Conrail) by (USRA), not less than $500,000,000 shall be available solely for the rehabilitation and modernization of rail properties acquired by (Conrail) under this chapter and not disposed of by (Conrail) pursuant to section 716(c)(1)(C) of this title. Any modification to the limitations set forth in this subsection shall be made by joint resolution adopted by the Congress.' § 210, 45 U.S.C. § 720 (1970 ed., Supp. III).
'(a) Emergency assistance.
'The Secretary is authorized, pending the implementation of the final system plan, to pay to the trustees of railroads in reorganization such sums as are necessary for the continued provision of essential transportation services by such railroads. Such payments shall be made by the Secretary upon such reasonable terms and conditions as the Secretary establishes, except that recipients must agree to maintain and provide service at a level no less than that in effect on January 2, 1974.
'(b) Authorization for appropriations.
'There are authorized to be appropriated to the Secretary for carrying out this section such sums as are necessary, not to exceed $85,000,000, to remain available until expended.' § 213, 45 U.S.C. § 723 (1970 ed., Supp. III).
'(a) Secretary (of Transportation).
'There are authorized to be appropriated to the Secretary for purposes of preparing the reports and exercising other functions to be performed by him under this chapter such sums as are necessary, not to exceed $12,500,000, to remain available until expended.
'(b) Office.
'There are authorized to be appropriated to the (Interstate Commerce) Commission for the use of the Office in carrying out its func-
9
The period of 450 days provided by § 207(c) was extended 120 days by Pub.L. 93—488, 88 Stat. 1465, effective Oct. 26, 1974.
10
Concerning congressional review of the Final System Plan, § 208 provides:
'(a) General.
'The Board of Directors of (USRA) shall deliver the final system plan adopted by (USRA) to both Houses of Congress and to the Committee on Interstate and Foreign Commerce of the House of Representatives and the Committee on Commerce of the Senate. The final system plan shall be deemed approved at the end of the first period of 60 calendar days of continuous session of Congress after such date of transmittal unless either the House of Representatives or the Senate passes a resolution during such period stating that it does not favor the final system plan.
'(b) Revised plan.
'If either the House or the Senate passes a resolution of disapproval under subsection (a) of this section, (USRA), with the cooperation and assistance of the Secretary and the Office, shall prepare, determine, and adopt a revised final system plan. Each such revised plan shall be submitted to Congress for review pursuant to subsection (a) of this section.
'(c) Computation.
'For purposes of this section—
'(1) continuity of session of Congress is broken only by an adjournment sine die; and
'(2) the days on which either House is not in session because of an adjournment of more than 3 days to a day certain are excluded in the computation of the 60-day period.' § 208, 45 U.S.C. § 718 (1970 ed., Supp. III).
11
Section 303(d) provides:
'(d) Appeal.
'A finding or determination entered pursuant to subsection (c) of this section may be appealed directly to the Supreme Court of the United States in the same manner that an injunction order may be appealed under section 1253 of Title 28: Provided, That such appeal is exclusive and shall be filed in the Supreme Court not more than 5 days after such finding or determination is entered by the special court. The Supreme Court shall dismiss any such appeal within 7 days after the entry of such an appeal if it determines that such an appeal would not be in the interest of an expeditious conclusion of the proceedings and shall grant the highest priority to the determination of any such appeals which it determines not to dismiss.'
We are not required to consider in this case the validity of this attempted congressional regulation of the Court's disposition of any appeal from a judgment entered by the Special Court pursuant to subsection (c).
12
The suits here were brought by the major creditors and sole shareholder of Penn Central. Penn Central was the product of the merger of the Pennsylvania Railroad with the New York Central Railroad. Penn-Central Merger Cases, 389 U.S. 486, 88 S.Ct. 602, 19 L.Ed.2d 723 (1968). A condition of that merger was Penn Central's promise to take in the New York, New Haven & Hartford Railroad Co. as an operating entity, and that promise was fulfilled. New Haven Inclusion Cases, 399 U.S. 392, 90 S.Ct. 2054, 26 L.Ed.2d 691 (1970).
The Penn Central operation dominates the northeast-midwest region. It serves 55% of the Nation's manufacturing plants employing 60% of the country's industrial employees. More than 20% of all freight cars loaded in the United States pass over Penn Central's 20,000 miles of track, and over 70% of Penn Central traffic involves other railroads. Rail Service in the Midwest and Northeast Region, 39 Fed.Reg. 5392, 5401 (1974); H.R.Rep.No.93 620, p. 26 (1973) (hereinafter H.Rep.). Since 1973 Penn Central (including its leased lines) accounted for 94% of the operating mileage and 87% of the operating revenues of the six bankrupt railroads involved under the Rail Act. The merger failed to realize anticipated savings and Penn Central entered reorganization proceedings in 1970, two years after the merger was approved. Huge operating losses made reorganization inevitable and have continued. The Financial Collapse of the Penn Central Company, SEC Staff Report 86 (1972). The Penn Central Trustees in a Report of February 10, 1971, Concerning Premises for A Reorganization, Joint Documentary Submission No. 1, concluded that the 'overriding problem of Penn Central . . . is found in an obligation to perform as a public service company in certain areas and under certain conditions which simply do not lend themselves to profitable operations, no matter who the operator is, or how efficient. The only possible remedy here is for public authority to lend its hand to a speedy elimination of the conditions which produce the losses, or respond with adequate compensation if it insists upon a continuance of the conditions.'
13
For reasons stated in Part VI of this opinion, infra, we have no occasion to pass upon the correctness of this conclusion.
14
Part VIII B of the Special Court opinion considers the arguments of investors of several of the smaller lines. But those investors are not parties to the cases before us.
Part VIII C of the Special Court's opinion discusses the question whether the Court of Claims is free to deny the existence of the Tucker Act remedy if its existence should be challenged before the Court of Claims. The fact that the District Court below concluded, contrary to the Special Court, that the Tucker Act remedy was not available was viewed as making the question a 'puzzlement.' 384 F.Supp., at 954. In consequence, the Special Court stayed its order remanding the Penn Central and four other cases for the entry of orders in the reorganization courts and affirming the orders directing that the Reading and Ann Arbor reorganizations proceed under the Rail Act until 'after final determination by the Supreme Court' of the instant appeals. Id., at 955.
15
The severely limited funds available pursuant to §§ 213 and 215 for emergency assistance and plant maintenance pending implementation of the Final System Plan do not assure that adequate compensation will be available for any 'erosion taking.' Section 213 provides $85 million in emergency grants for continued essential transportation services while § 215 provides $150 million in USRA obligations for maintenance and improvement of plant.
Nor is adequate assurance provided by the possibility that Conrail securities and other benefits can be provided for unconstitutional erosion when the Special Court determines the proper consideration for the rail properties conveyed to Conrail. As the Special Court itself found:
'The Government parties (contend) that . . . this court could compensate for any unconstitutional erosion in the final system plan, either by fixing a valuation date prior to the date of conveyance or by a specific award, § 303(c) (2)(B), or a deficiency judgment against Conrail under § 303(c)(2)(C). The earlier valuation date method would hardly be satisfactory even if permissible,[*] since this would not cure erosion with respect to rail properties that were not conveyed. It would be permissible for the final system plan to provide or for us to direct that compensation for erosion should be made in the case of any railroad some of whose properties are conveyed. However, if, as the opponents urge, the consideration now authorized is inadequate as compensation for the properties themselves, enlarging the amount of claims that may be made against it would be of no avail.' 384 F.Supp., at 925—926.
[
*]'The House version of the Act, as explained by the report accompanying it, provided that '(t)he value of consideration must equal the fair and equitable value of the rail properties as of the date of the conveyance.' House Report at 53. However, the Act contains no such limitation and the Conference Report H.R.Rep.No. 93—774, 93d Cong., 1st Sess. (1973), makes no mention of the deletion.'
16
As this passage from Yearsley indicates, the Government action must be authorized. 'The taking of private property by an officer of the United States for public use, without being authorized, expressly or by necessary implication, to do so by some act of Congress, is not the act of the government,' and hence recovery is not available in the Court of Claims. Hooe v. United States, 218 U.S. 322, 336, 31 S.Ct. 85, 89, 54 L.Ed. 1055 (1910). See also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 485, 72 S.Ct. 863, 865, 96 L.Ed. 1153 (1952). These cases are inapposite since the Government actions at issue here are authorized by the Rail Act.
17
'Mr. HARTKE. We are providing that the creditors of this corporation would be required to take common stock in the new quasi-government operation. In other words, they are exchanging their present security interest in the rail properties for common stock in the new corporation.
'The railroad properties then become the properties of the new corporation free and clear of liens and encumbrances. In other words, the assets are being transferred and the rights are being changed. The nonrailroad property will remain in the bankruptcy court to be dealt with by them. One can talk about what is available if the railroad is liquidated and put through the wringer, but even then the chances of these creditors getting their money is (sic) relatively slim, and this country cannot afford cessation of rail service while the railroads are put through the wringer. So what, in effect, is called the 'cram down' theory forces them to accept this kind of settlement and judges have ruled that this is fair. If we did nothing while continuing to mandate rail service, there is the distinct possibility in view of the prior action of Congress that a number of these people could make a claim against the Government which could be sustained in the Court of Claims.'
18
'Mr. KUYKENDALL. Mr. Speaker, I would like to ask the gentleman from Washington to clarify one point, and that is the matter of the deficiency judgment. There was a lot of colloquy in the original debate which expressed fears that the Federal court had the key to the Treasury.
'Will the gentleman give us his interpretation of the guarantees we have to keep that from happening in the court proceedings?
'Mr. ADAMS. Mr. Speaker, there is a definite limitation on the total amount that can be authorized under this bill. Any amounts that go beyond that, or the shifting of the way in which it is spent, is to be approved by an act of Congress, to be signed by the President. It is defined as a joint resolution in the bill, and the statement of the managers, and it was the clear intent of the managers that any amount other than common stock was to be at the lowest possible limit to meet the constitutional guarantees.
'Mr. KUYKENDALL. Mr. Speaker, is it not true, I will ask the gentleman from Washington (Mr. Adams) that the creditors, of course, are given protection, and that the Board of Directors, under the control of Government officials is the owner of the entire block of stock of 100 million shares, whatever it is?
'Mr. ADAMS. The gentleman is correct. It is controlled by the United States, so long as the Secretary determines that there is an amount of obligation funds which the United States might, in any way ever, have to have anything to do with.
'During that period of time, it is controlled by a board of directors which consists of Government officials.
'Mr. KUYKENDALL. There is no way the Federal court may assess the taxpayers or this Congress on the judgments of the creditors; is that correct?
'Mr. ADAMS. The gentleman is correct.
'Mr. KUYKENDALL. There is no way they can assess the Congress for the money?
'Mr. ADAMS. The gentleman is correct.'
19
Tr. of Oral Arg. 50—51.
At three other times during oral argument Representative Adams implied that the Tucker Act was available for takings resulting from the Rail Act. See id., at 48 ('As Justice White was asking in his question, is there a right to sue for some failure maybe we hold a party too long, then they could'); id., at 49 ('Now, as far as the Causby case is concerned, Hurley v. Kincaid and the other Tucker Act cases, we did not try to repeal the Fifth Amendment or certainly repeal the Tucker Act jurisdictional statements'); id., at 50 ('If you decide, however, that there may be, some place along the line, in the lawful process, a mistake, then you reach and say the Tucker Act case will have to be decided when and if some party can decide that they have created a case on the merits').
20
The conveyance provisions are the heart of the Rail Act. Thus, if it were clear that they were unconstitutional, a strong argument might be made that they are inseverable from the remainder of the Act and that the Act as a whole is void.
21
The New Haven Trustee in his Reply Brief 45—46, seems to concede that valuation at market value of any Conrail stock may be sufficient. He then suggests, however, that it might be impossible, for legal and practical reasons, to offer Conrail stock publicly for many years. Thus, he claims, there will be no way to ascertain market value, and he implies that the market value will effectively be zero.
22
Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240—242, 57 S.Ct. 461, 463—465, 81 L.Ed. 617 (1937); Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 140—141, 71 S.Ct. 624, 632—633, 95 L.Ed. 817 (1951); id., at 154—155, 71 S.Ct., at 639—640 (Frankfurter, J., concurring).
23
Ashwander v. TVA, 297 U.S. 288, 346—347, 56 S.Ct. 466, 482—483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring); Poe v. Ullman, 367 U.S. 497, 502—503, 81 S.Ct. 1752, 1755—1756, 6 L.Ed.2d 989 (1961).
24
Judge Fullam disagreed with the majority below on the ripeness of some of the final-conveyance issues, 383 F.Supp., at 530—533. Among other things, he observed that the validity of the final conveyance provisions was inextricably interwoven with the issues concerning interim erosion which the three-judge court did address. As suggested, supra, at 122—124, the constitutionality of requiring deficit railroad operations by a railroad in reorganization may depend in part upon the likelihood of a successful reorganization; if the provisions for the final conveyance were facially unconstitutional, there would be little likelihood of such reorganization, and it might be necessary to permit immediate abandonment for that reason alone. 383 F.Supp., at 530—533. We believe, unlike Judge Fullam, that the Tucker Act is available to compensate any unconstitutional taking which might arise from interim erosion. See supra, at 125—136. However, his observation about the inter-relationship of the 'erosion taking' and the 'conveyance taking' issues is still pertinent. If it were entirely clear that no reorganization could take place under the Act because its conveyance provisions were unconstitutional, it might be pointless to permit continuing erosion of the estate and the inevitable buildup of a huge Tucker Act claim. Thus, we would have to decide whether those portions of the Act severely limiting abandonments are severable from the conveyance provisions. Because we find that some of the final-conveyance issues require resolution at this injuncture for independent reasons, we need not determine whether we would have to confront any of them anyway in order completely to determine the validity of the abandonment provisions.
25
It might be appropriate under different circumstances only to decide that the issues are ripe, and to remand to the District Court for their determination on the merits. However, such a remand here would be both undesirable and unnecessary. The Rail Act provides a strict timetable for its implementation. Any delay occasioned by remanding to the District Court could seriously impede that timetable and frustrate the accomplishment of the Rail Act's objectives. Further, these issues have been fully ventilated by these same parties in the Special Court, which proceeded to decide them.
26
The parties have stipulated that '(i)t is likely' that some of the rail properties of Penn Central will be designated for transfer, sale, or other conveyance in any Final System Plan executed under the Rail Act. App. 205, 318—319, 370—371. Since the Penn Central system holds an overwhelming percentage of the trackage, see n. 12, supra, to be reorganized under the Act, it is inconceivable that all of the Penn Central rail properties could be eliminated from the Final System Plan without destroying the possibility of achieving the goals of the Act. See §§ 101, 206(a), 45 U.S.C. §§ 701, 716 (1970 ed., Supp. III). While the Act does contemplate that, under the Final System Plan, some of the rail properties may be designated for transfer to existing profitable railroads, §§ 206(c)(1)(B), 206(d)(2), 209(c)(2), 303(a)(2), 303(b), 45 U.S.C. §§ 701(c)(1)(B), 716(d)(2), 719(c)(2), 743(a)(2), 743(b) (1970 ed., Supp. III), no such transfer can occur unless the purchaser railroad agrees to the purchase. § 206(d)(4). If any substantial portion of the Penn Central rail properties were an attractive investment for an existing railroad, the reorganization of the Penn Central presumably could have been accomplished under § 77, without recourse to the novel plan envisioned by the Act. Thus, we can properly assume that some Penn Central properties will be transferred to Conrail.
27
Section 209(a) provides: 'Notwithstanding any other provision of law, the final system plan . . . is not subject to review by any court except in accordance with this section. After the final system plan becomes effective under section 718 of this title, it may be reviewed with respect to matters concerning the value of the rail properties to be conveyed under the plan and the value of the consideration to be received for such properties.'
Section 303(b)(1) commands that within 10 days after the compensation provided in the Final System Plan has been deposited with the Special Court pursuant to § 303(a), the Special Court 'shall' order the conveyance. Section 303(b)(2) provides that the conveyance 'shall not be restrained or enjoined by any court.'
Finally, § 303(c)(1) provides: 'After the rail properties have been conveyed . . . the special court . . . shall decide . . . whether the transfers or conveyances . . . are in the public interest and are fair and equitable . . ..' (Emphasis added.) Thus, the statutory command is that once the Final System Plan has been presented to Congress and not disapproved, the Special Court can review it only after it has ordered the conveyance.
28
The Senate bill contained a provision that might be read as authorizing the Special Court to refuse to order the conveyance if it found it not fair and equitable. S. 2767, § 303(c)(2). See S.Rep. 35. However, this provision was deleted. It seems fundamentally at odds with §§ 303(b) and (c)(1) of the Senate bill, and with the intent expressed by the Senate Committee Report, as cited in the text. We infer, therefore, that the provision was eliminated at conference precisely to make clear that the order of conveyance is mandatory, and that any litigation concerning valuation is to occur after the transfer. See H.R.Conf.Rep.No. 93—744, pp. 57, 58, U.S.Code Cong. & Admin.News, p. 3322 (1973), which states that, except for certain provisions and pertinent here, the final bill follows the Senate version of the implementation scheme, 'subject to technical and clarifying changes.' (Emphasis added.)
29
For this reason, decisions concerning justiciability of cases of apprehended criminal prosecution are not pertinent. Because the decision to instigate a criminal prosecution is usually discretionary with the prosecuting authorities, even a person with a settled intention to disobey the law can never be sure that the sanctions of the law will be invoked against him. Further, whether or not the injury will occur is to some extent within the control of the complaining party himself, since he can decide to abandon his intention to disobey the law. For these reasons, the maturity of such disputes for resolution before a prosecution begins is decided on a case-by-case basis, by considering the likelihood that the complainant will disobey the law, the certainty that such disobedience will take a particular form, any present injury occasioned by the threat of prosecution, and the likelihood that a prosecution will actually ensue. Compare Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969), with Albertson v. SACB, 382 U.S. 70, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965); Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1215, 39 L.Ed.2d 505 (1974).
30
The Final System Plan will become 'effective' if it is not disapproved by either house of Congress within 60 calendar days of continuous session from the time it is transmitted to Congress. §§ 102(4), 208(a), 209(a). After that, it may still have to be changed if USRA is unable to execute agreements with profitable railroads for purchases from the reorganized railroads (within 30 days of the effective date) or for sales to Conrail or to other profitable railroads (within 60 days of the effective date). § 206(d)(4). Thus, it is possible that the Final System Plan to be certified to the Special Court will not be known until 60 days after the effective date of the Plan. The Plan must be certified within 90 days of the effective date; however, it can be certified earlier. § 209(c).
31
The Special Court may have jurisdiction derived from the Constitution itself to refuse to convey if the terms of the transfer are clearly unconstitutional. See supra, at 142. But, as the Special Court noted, any such review would be hasty and made without adequate information. 384 F.Supp., at 931. Thus, while review at this stage is a theoretical possibility, it would not afford a better opportunity than the present one for an informed decision in light of well-developed facts.
32
See also n. 36, infra.
33
The House bill attempted to define the valuation theory to be applied to the rail properties conveyed. H.R. 9142, § 102(5); see H.Rep. 31. However, the definition of 'fair and equitable value' is not in the Rail Act as adopted.
34
The New Haven Trustee's contention that the conveyance provisions will constitute a taking because they mandate continuation of rail services indefinitely is similarly premature, because it is premised upon a hypothetical relationship between the railroad's liquidation value for 'highest and best use' and its value as a going concern. Both of these values are by stipulation unknown, and the proper method of valuating the railroad properties is itself not justiciable now.
35
It is also contended that the Tucker Act is inadequate since Congress may not appropriate the money awarded by the Court of Claims. But, as Mr. Justice Harlan wrote, 'there seems to be no sound reason why the Court of Claims may not rely on the good faith of the United States.' Glidden Co. v. Zdanok, 370 U.S. 530, 571, 82 S.Ct. 1459, 1484, 8 L.Ed.2d 671 (1962). See also Albert Hanson Lumber Co. v. United States, 261 U.S. 581, 587, 43 S.Ct. 442, 444, 67 L.Ed. 809 (1923); Silesian-American Corp. v. Clark, 332 U.S. 469, 480, 68 S.Ct. 179, 184, 92 L.Ed. 81 (1947).
We reject as well the suggestion that a Tucker Act remedy comes too late. See Hurley v. Kincaid, 285 U.S. 95, 52 S.Ct. 267, 76 L.Ed. 637 (1932). Interest on a just-compensation award runs from the date of the taking. See, e.g., United States v. Thayer-West Point Hotel Co., 329 U.S. 585, 588, 67 S.Ct. 398, 399, 91 L.Ed. 521 (1947). Finally, contrary to the suggestion of some of the plaintiffs below, we see no reason why a Tucker Act remedy is inadequate because the valuations involved may be complex. Cf. Phillips v. Commissioner, 283 U.S. 589, 596—601, 51 S.Ct. 608, 611 613, 75 L.Ed. 1289 (1931).
All of the arguments concerning inadequacy of the Tucker Act remedy are pressed with regard to both the alleged 'erosion taking' and the alleged 'conveyance taking.' As with the availability of the Tucker Act remedy, see supra, at 148, there is no distinction between these arguments or their resolutions in the two contexts.
36
To delay until any Court of Claims adjudication with respect to the form of consideration provided by the Act would be exceedingly irresponsible: while the fact that Congress did not contemplate a taking does not pretermit a Tucker Act remedy, it does suggest that Congress might wish to consider whether to abandon the whole Act if it turned out that the entire value of the rail properties must be paid in cash.
37
At least two of the complaining parties agree that, to the extent compensation to the rail estates is paid in obligations of USRA backed by federal guarantees, the securities can be figured at face value as the perfect equivalent of money. Reply Brief for Cross-Appellant New Haven Trustee 45; Brief for Appellee Penn Central Co. 56. See §§ 206(h), 210, 303(c)(2).
38
The special-benefits rule of compensation may later have direct relevance to the Penn Central reorganization. The Act provides that determination of the fairness and equity of the terms of the transfer should take into account 'securities and other benefits' (emphasis added) provided to the railroad estate. § 303(c)(2). See also § 206(d)(1). The parties here disagree about what 'other benefits' may be under the Act, and the extent to which any such may be counted as constitutional consideration. In particular, there is a dispute over whether the sums up to $250,000,000 in benefits to be paid Conrail as reimbursement for certain labor expenses are 'other benefits' to be counted in evaluating the exchange. See § 509, 45 U.S.C. § 779 (1970 ed., Supp. III). For the reasons given supra, at 146—147, with respect to other valuation problems, this issue is presently premature.
39
The claim is also made that, whatever the form of compensation proper under the Fifth Amendment, the legislature cannot specify the form of compensation but must leave the decision to the judiciary. This argument is based upon an erroneous reading of Monongahela Navigation Co. v. United States, 148 U.S. 312, 327, 13 S.Ct. 622, 626, 37 L.Ed. 463 (1893). Monongahela held only that the legislature could not, by setting either a fixed amount to be paid for property condemned or a principle for arriving at the amount, settle the constitutional right to just compensation. Thus, Monongahela did no more than restate the general principle that the courts, not the legislature, are ultimately entrusted with assuring compliance with constitutional commands. It said nothing about whether Congress can dictate the mode of compensation rather than the amount.
40
Section 301(d) provides:
'(d) Board of Directors.
'The Board of Directors of (Conrail) shall consist of 15 individuals selected in accordance with the articles and bylaws of (Conrail): Provided, That so long as 50 per centum or more, as determined by the Secretary of the Treasury, of the outstanding indebtedness of (Conrail) consists of obligations of (USRA) or other debts owing to or guaranteed by the United States, three of the members of such board shall be the Secretary (of Transportation), the Chairman and the president of (USRA) and five of the members of such board shall be individuals appointed as such by the President, by and with the advice and consent of the Senate.'
41
An attempt is made to distinguish the 'cram-down' provisions of § 77(e) because § 77(e) provides for a vote of all classes of creditors after the reorganization court has determined that a plan is fair and equitable. A 'cream-down' is permitted only if the reorganization court finds any objection by a class of creditors 'not reasonably justified.' But the creditors' right to object to a plan approved by the court has a severely limited scope. 'If a plan gives fair and equitable treatment to dissenters, the elements which make the plan fair and equitable cannot be the basis for a reasonably justified rejection.' RFC v. Denver & R.G.W.R. Co., 328 U.S. 495, 535, 66 S.Ct. 1282, 1303, 90 L.eD. 1400 (1946). A 'reasonable' objection must be based upon facts arising after the original approval of the plan by the Court. Ibid. The omission in the Rail Act of this very limited right of objection cannot constitute the Act an eminent domain statute.
42
Continental Bank expressly notes that § 77 does not represent the limits of the bankruptcy power 294 U.S., at 671, 55 S.Ct., at 604.
43
None of the parties question that any 'taking' effected by the Rail Act will be for 'public use.' Cf. Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954).
44
The Court observed that it is not unusual for railroads to receive disparate treatment under the bankruptcy laws:
'Railway corporations had been definitely excluded from the operation of the law in 1910 (c. 412, § 4, 36 Stat. 838, 839), probably because such corporations could not be liquidated in the ordinary way or by a distribution of assets. A railway is a unit; it can not be divided up and disposed of piecemeal like a stock of goods. It must be sold, if sold at all, as a unit and as a going concern. Its activities can not be halted because its continuous, uninterrupted operation is necessary in the public interest; and, for the preservation of that interest, as well as for the protection of the various private interests involved, reorganization was evidently regarded as the most feasible solution whenever the corporation had become 'insolvent or unable to meet its debts as they mature." 294 U.S., at 671—672, 55 S.Ct., at 604.
45
H.Rep. 25—29; S.Rep. 6—14.
1
See Baltimore & O.R. Co. v. United States, 386 U.S. 372, 87 S.Ct. 1100, 18 L.Ed.2d 159 (1967); Penn-Central Merger Cases, 389 U.S. 486, 88 S.Ct. 602, 19 L.Ed.2d 723 (1968); New Haven Inclusion Cases, 399 U.S. 392, 90 S.Ct. 2054, 26 L.Ed.2d 691 (1970). In Baltimore & O.R. Co. v. United States, supra, I summarize in my dissent, 386 U.S., at 452—459, 87 S.Ct., at 1142 1146, some of the financial chicanery behind the creation of the 'new Frankensteins' with which we now deal, id., at 455, 87 S.Ct., at 1144.
2
Northern Securities Co. v. United States, 193 U.S. 197, 401, 24 S.Ct. 436, 468, 48 L.Ed. 679 (1904) (dissenting opinion).
3
13 Eliz., c. 5 (1570); G. Glenn, Fraudulent Conveyances & Preferences (rev. ed. 1940).
4
The Gold Clause cases are on a different footing, for as Mr. Chief Justice Hughes wrote in Norman v. Baltimore & O.R. Co., 294 U.S. 240, 55 S.Ct. 407, 79 L.Ed. 885 (1935), the power of Congress to regulate the currency and establish the monetary system was involved.
5
Penn Central Transportation Co. and its subsidiaries; Lehigh Valley Railroad Co.; Central Railroad Co. of New Jersey; Lehigh & Hudson River Railway Co.; Reading Co.; Ann Arbor Railroad Co.
6
Consolidated Rail Corp. created by § 301 of the Act, 45 U.S.C. § 741 (1970 ed., Supp. III).
7
The Reorganization Court found that Penn-Central (the debtor) was 'not reorganizable on an income basis within a reasonable time'; and that ruling has not been appealed. In re Penn-Central Trans. Co., 382 F.Supp. 831, 842 (E.D.Pa.1974).
8
Section 209(b), 45 U.S.C. § 719(b) (1970 ed., Supp. III), designates a Special Court of three federal judges which, inter alia, is to pass on the question whether the plan is 'fair and equitable.' § 303(c)(2), 45 U.S.C. § 743(c)(2) (1970 ed., Supp. III). A preliminary decision by the Special Court which in certain important aspects conflicts with that of the Reorganization Court was rendered September 30, 1974. In re Penn Central Trans. Co., 384 F.Supp. 895 (D.C.1974).
9
A study commissioned by the Penn Central Trustees, on file with the ICC, estimates for Penn-Central assets as of December 31, 1970, a 'continued railroad use' value of $13,585,493,000 and a 'liquidation for nonrail uses' at $3,532,110,000. PCTC Physical Asset Valuation Study (Apr. 1973, revised May 30, 1973), ICC Fin. Docket No. 26241. (Joint Documentary Submission No. 40).
10
See n. 9, supra. In the case of Penn Central alone, the Reorganization Court said that 'there is every reason to suppose that the included properties would be worth considerably more than $500 million.' 382 F.Supp. 856, 864 (E.D.Pa.1974) (Fullam, J.).
Judge Fullam's concurring opinion in the District Court noted:
'As a matter of simple maximization of values, if there is no 'going concern' value in the usual sense, there is no justification for continuing a reorganization proceeding, unless either or both of the following conditions are established: 1) a reasonable prospect that, because of streamlining, consolidations, and other changes in circumstances, earning power and profitability can be restored; or (2) a reasonable prospect that the public need for preserving the debtor's railroad is such that it will be appropriated for public use, and that the values inherent in its assemblage as an operating railroad will be recognized and paid for. Cf. Port Authority Trans. Hudson Corp. v. Hudson Rapid Tubes, 20 N.Y.2d 457, 285 N.Y.S.2d 24, 231 N.E.2d 734, cert. denied 390 U.S. 1002, 88 S.Ct. 1244, 20 L.Ed.2d 103 (1967).' 383 F.Supp. 510, 537 (E.D.Pa.1974). (Footnote omitted.)
11
Section 207(c), 45 U.S.C. § 717(c) (1970 ed., Supp. III), required the executive committee of USRA to present the final system plan to USRA's board of directors for approval within 420 days after enactment of the Act, later extended to 540 days by Pub.L. 93—488. Within 30 days after presentation by the executive committee, the Board shall 'approve a final system plan which meets all of the requirements of section 716 (prescribing contents of the plan and the general goals).' The plan is then submitted to Congress, § 208(a), 45 U.S.C. § 718(a) (1970 ed., Supp. III).
12
See H.R.Rep.No. 93—620, pp. 54—55 (1973) (hereinafter cited as H.Rep.).
13
This language originated in the Senate bill. The House bill had provided for consolidation in the Special Court of 'all proceedings of any kind which arise or may arise concerning the final system plan or implementation thereof.' (§ 501(a)). The House Report explains that 'Title V . . . guarantees the creditors their day in court and preserves their Constitutional right to a judicial determination of just compensation for their property.' H.Rep. 47. The Senate language was incorporated in the final bill, and apparently no significance was attached to the disparity between the two versions. See H.R.Conf.Rep.No. 93—744, pp. 56—59 (1973).
14
Under § 210(b), 45 U.S.C. § 720(b) (1970 ed., Supp. III), is authorized to issue Government-guaranteed obligations not exceeding $1.5 billion. Only $1 billion, however, may be issued to Conrail, and of this amount $500 million must be made available solely for rehabilitation and modernization of properties acquired from contributing roads. This leaves $500 million of obligations available to the Special Court for distribution to the estates under § 303(c)(2)(B).
15
Were Congress so to choose, the creditors of the bankrupt roads, armed with a large deficiency judgment, might cause a levy to be made upon Conrail's assets. Since the value of Conrail stock held would presumably reflect the value of the assets, a levy would not give the estates any additional value but would merely change its form. Liquidation would, at most, terminate further erosion of asset value due to continued unprofitable operations.
An amicus brief submitted by Representative Adams for himself and 36 other Representatives suggests that liquidation would allow the creditors to get back what they relinquished, involuntarily, to Conrail (p. 7). But, as the Special Court noted, this position ignores the probable erosion of asset value during the pendency of valuation proceedings, the possibility of new senior debt, and the difficulty of unscrambling the assets. In re Penn Central Trans. Co., 384 F.Supp., at 930.
Appearing as amicus curiae at oral argument, Representative Adams made statements that the majority now reads as indicating a conclusion that a Tucker Act suit would be available to remedy an uncompensated 'erosion taking.' Ante, at 132—133. Yet this position is contrary to that taken in the brief Mr. Adams submitted, which urges us to decide the case without reaching the Tucker Act question and specifically cites the colloquy printed, infra, at 174—175. The Court properly notes that these post-enactment expressions should be treated with caution, a warning that applies as much to the 'relatively spontaneous responses of counsel to equally spontaneous questioning from the Court,' Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 170, 92 S.Ct. 1965, 1970, 32 L.Ed.2d 627 (1972), as to the more considered statements that appear in written submissions. Viewed in their entirety, the post-enactment expressions are ambiguous and add little to the statute and legislative history. Moreover, Mr. Adams' remarks bear an interpretation fully consistent with the nonavailability of the Tucker Act. See infra, at 177.
16
The House Report in its cost estimate specifically notes those cost elements as to which the ceiling is not fixed, such as the open-
ended authorization for a federal contribution to operating subsidies paid for rail service. This authorization, originally contained in § 701 of the House bill, appears in § 402 of the Rail Act, 45 U.S.C. § 762 (1970 ed., Supp. III), subject to an annual limitation of $90 million. Significantly, there is no mention of a possible Court of Claims judgment of uncertain but potentially astronomical proportions. See H.Rep. 30. The Senate Report is similar. In a section entitled 'Minimizing Taxpayer Expense' it explains:
'Although the amounts of money required to implement the rationalization and restructuring of the bankrupt railroads in the Northeast authorized by this legislation may seem substantial to the uninitiated, every effort has been made to design a bill which minimizes the direct cost to the U.S. taxpayer. Indeed, the very process by which the bill would create a new healthy railroad out of the bankrupt ones arose from this strong desire to limit the use of Federal money. The bill is thus written to permit the transfer of the required rail properties of the bankrupt estates in exchange for securities of the new corporation via a reorganization plan under the umbrella of a Section 77 proceeding under the Bankruptcy Act. In addition, the bill calls for the use of Federal loan guarantees rather than direct grants wherever possible. This procedure allows for the necessary funds to come from the private sector in exchange for loans which are to be repaid by the new Corporation or other recipients. The use of loan guarantees in this instance was felt to be particularly appropriate since they will support a new railroad with excellent earnings prospects.' S.Rep.No.93—601, p. 18, U.S.Code Cong. & Admin.News, p. 3259 (1973).
In the section on cost estimates it is noted: 'The obligational authority of the Association is limited to $150,000,000 to finance the Secretary's agreements with railroads in reorganization for the acquisition, maintenance and improvement of rail facilities prior to the completion of the final system plan. Under the bill any additional obligation authority necessary for the implementation of the final system plan must be designated in the final system plan and affirmatively approved by a joint resolution of Congress.' Id., at 125—126. Had Congress intended to allow a Tucker Act remedy in addition to all that was created by the Rail Act, all of the foregoing assurances would have been worthless.
17
Louisville Joint Stock Land Bank & Radford, supra, held that the first Frazier-Lemke Act, which provided special relief to farm mortgagors in bankruptcy, was an unconstitutional taking of the mortgagee's security. Had the theory offered here by the Government been applied there, the Court could have avoided the issue by inferring a Tucker Act remedy. The possibility of such a course could not have escaped the Court's attention; Hurley v. Kincaid, 285 U.S. 95, 52 S.Ct. 267, 76 L.Ed. 637 (1932), had been decided just three years earlier, and Mr. Justice Brandeis, author of the Radford opinion, had written Lynch v. United States, 292 U.S. 571, 54 S.Ct. 840, 78 L.Ed. 1434 (1934), only the previous Term.
18
The requirement of 'uniformity' does not preclude local variations that make rights of creditors or debtors depend on peculiarities of state law relating, e.g., to dower exemptions, validity of mortgages, and the right to enforce through bankruptcy state remedies against fraudulent conveyances. Stellwagen v. Clum, 245 U.S. 605, 613—615, 38 S.Ct. 215, 217—218, 62 L.Ed. 507 (1918); Wright v. Vinton Branch, 300 U.S. 440, 463 n. 7, 57 S.Ct. 556, 562, 81 L.Ed. 736 (1937).
19
Under § 77(e) a two-thirds vote of each class of security holders affected by the plan is normally required. The bankruptcy court, however, may nevertheless approve the plan even though the two-thirds vote is lacking if it finds that the plan is fair and equitable and the rejection of it by a class of security holders 'is not reasonably justified in the light of the respective rights and interests of those rejecting it and all the relevant facts.' For an instance where we sustained a bankruptcy court in approving a plan that a class of security holders had rejected, see RFC v. Denver & R.G.W.R. Co., 328 U.S. 495, 531—535, 66 S.Ct. 1282, 1301 1303, 90 L.Ed. 1400 (1946).
20
N. 18, supra.
21
Wright v. Vinton Branch, 300 U.S. 440, 57 S.Ct. 556, 81 L.Ed. 736 (1937).
22
Continental Illinois Nat. Bank & Trust Co. v. Chicago, R.I. & P.R. Co., 294 U.S. 648, 55 S.Ct. 595, 79 L.Ed. 1110 (1935), cited by the majority, ante, at 158—159, involved no question of geographical nonuniformity; § 77, upheld in that case, adopted special procedures for all railroad bankruptcies. Similarly inapposite are the Head Money Cases, 112 U.S. 580, 5 S.Ct. 247, 28 L. 798 (1884), which involved the uniformity requirement of Art. I, § 8, cl. 1. Although the head tax classified persons by citizenship and mode of entry, it applied 'alike in every port of the United States where such passengers can be landed.' Id., at 594, 5 S.Ct., at 252.
| 34
|
419 U.S. 215
95 S.Ct. 409
42 L.Ed.2d 399
AMERICAN RADIO ASSOCIATION, AFL-CIO, et al., Petitioners,v.MOBILE STEAMSHIP ASSOCIATION, INC., et al.
No. 73-748.
Argued Oct. 21, 1974.
Decided Dec. 17, 1974.
Syllabus
Respondents, an association representing stevedoring companies, and a shipper, sought injunctive relief in an Alabama state court against picketing of a foreign-flag ship by petitioner maritime unions which were protesting as substandard the wages paid the foreign crewmen who manned the ship. The trial court issued a temporary injunction, and the Alabama Supreme Court affirmed. Petitioners contend that the state courts were without jurisdiction to grant relief, and that the issuance of an injunction interfered with their free speech rights. Held:
1. The jurisdiction of the Alabama courts was not pre-empted by the National Labor Relations Act (NLRA). Windward Shipping v. American Radio Assn., 415 U.S. 104, 94 S.Ct. 959, 39 L.Ed.2d 195. Pp. 219-228.
(a) Even if there is a dispute between petitioners and respondents independent of petitioners' dispute with foreign-flag ships, it is subject to state-court disposition unless it satisfies the jurisdictional requirements of the NLRA. P. 221.
(b) The fact that the state court's jurisdiction is invoked by stevedores and shippers, rather than by the foreign-ship owners as in Windward, supra, does not convent into 'commerce' within the meaning of the NLRA's jurisdictional requirements, activities that plainly were not such in Windward. Pp. 221-225.
(c) Neither the shipper seeking to ship his products, the stevedores who contracted to unload the foreign-flag vessel's cargo, nor the longshoremen employed to do the unloading, were, for the purposes of jurisdiction of the National Labor Relations Board over a dispute directly affecting the maritime operations of foreign-flag vessels, 'engaged in or affecting commerce' within the purview of the NLRA, and therefore petitioners' picketing did not even 'arguably' constitute an unfair labor practice under § 8(b)(4) of the Act, the secondary boycott provision. Pp. 225-228.
2. The Alabama courts' action in enjoining the picketing violated no right conferred upon petitioners by the First and Fourteenth Amendments, because that action is well within that 'broad field in which a State, in enforcing some public policy, whether of its criminal or its civil law, and whether announced by its legislature or its courts, could constitutionally enjoin peaceful picketing aimed at preventing effectuation of that policy,' International Brotherhood of Teamsters, Local 695, A.F.L. v. Vogt, Inc., 354 U.S. 284, 293, 77 S.Ct. 1166, 1170, 1 L.Ed.2d 1347. Pp. 228-232.
(a) Since the picketing here was for a prohibited purpose, it is not entitled to protection on the ground that the place where it occurred constituted a public forum for presentation of lawful communications. Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603, distinguished. P. 230.
(b) The injunction is supported by a 'valid public policy.' In the context in which the Alabama Supreme Court stated the public policy to be the prevention of 'wrongful interference' with respondents' businesses, that term obviously refers to third parties' efforts to induce employees to cease performing services essential to the conduct of their employer's business, third-party participation being critical to picketing being categorized as 'wrongful interference.' Pp. 230-231.
(c) Petitioners' contention that the record fails to support the conclusion that there was a substantial question whether the picketing constituted 'wrongful interference,' is without merit, since the question whether evidence is sufficient to make out a cause of action created by state law and tried in the state courts is a matter for decision by those courts. Pp. 231-232.
291 Ala. 201, 279 So.2d 467, affirmed.
Howard Schulman, New York City, for petitioners.
Frank McRight, Mobile, Ala., for respondent Mobile Steamship Association, Inc.
Alex F. Lankford, III, Mobile, Ala., for respondent Robert E. Malone.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Petitioners are the six maritime unions which appeared before this Court as respondents in Windward Shipping (London) Ltd. v. American Radio Assn., AFL-CIO, 415 U.S. 104, 94 S.Ct. 959, 39 L.Ed.2d 195 (1974). We granted their petition for certiorari to the Supreme Court of Alabama, 415 U.S. 947, 94 S.Ct. 1468, 39 L.Ed.2d 562, in order to review their contentions that this case was distinguishable from Windward on the pre-emption issue, and that the temporary injunction upheld by that court had infringed rights guaranteed to them under the First and Fourteenth Amendments to the United States Constitution.1
2
As in Windward, this case arises from picketing designated to publicize the adverse impact on American seamen of the operations of foreign-flag carriers which employ foreign crewmen at wages substantially below those paid to American seamen. As in Windward, the picketing occurred during 1971, but in this case it took place in Mobile, Ala., and was directed against the Aqua Glory, a ship of Liberian registry. The pickets displayed the same signs and distributed the same literature as they did in Windward,2 and they were subject to the same instructions.
3
The picketing in each case also had similar results. In Windward, we observed: 'The picketing, although neither obstructive nor violent, was not without effect. Longshoremen and other port workers refused to cross the picket lines to load and unload petitioners' vessels.' 415 U.S., at 108, 94 S.Ct., at 962. Here, the Supreme Court of Alabama, in affirming a temporary injunction issued by the Alabama Circuit Court, said of petitioners' activities in Mobile:
4
'Posting the pickets, as was done on the dock adjacent to the Aqua Glory, brought about an immediate refusal by the stevedore workers of the locals of International Longshoremen's Association to cross the picket line of the appellant unions. About eighty percent of the cargo ships that enter the Port of Mobile, said under a foreign-flag and are manned by alien crews.'3
5
* It is apparent from the facts already stated that the Houston picketing in Windward and the Mobile picketing here were for all practical purposes identical. Petitioners refer to Windward as 'involving the union petitioners in the identical national picketing dispute as part of the Committee's program . . ..' Brief for Petitioners 7 n. 1. But petitioners contend that since the state-court plaintiffs in this case are not the foreign owners of a picketed ship, as they were in Windward, but are instead stevedoring companies which seek to service the ship4 and a shipper who wishes to have his crops loaded on it, the question of preemption of state-court jurisdiction by the National Labor Relations Act should be answered differently than it was in Windward.5 Petitioners reason that respondents could have charged them with an unfair labor practice under the secondary boycott provision of the National Labor Relations Act, § 8(b)(4), 49 Stat. 452, as amended, 29 U.S.C. § 158(b)(4), and that since petitioners' activities were arguably prohibited under that section, the respondents' exclusive remedy was to seek relief from the National Labor Relations Board. Cf. San Diego Building Trades Council, Millmen's Union, Local 2020 v. Garmon 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959).
6
Petitioners' position in this respect contrasts markedly with their posture in the Windward litigation. There petitioners, as respondents in this Court, urged that 'peaceful and truthful primary picketing, non obstructive and without trespass upon private property, by American workers protesting substandard wages and benefits paid,' are activities 'actually protected by the Act.' Brief for Respondents in No. 72-1061, O.T.1973, p. 15. They also urged that 'the American seamen's activities at bar constitutes [sic] typical lawful primary picketing, sanctioned and protected by the Act, Garner [v. Teamsters Union, 346 U.S. 485 [74 S.Ct. 161, 98 L.Ed. 228 (1953), and Longshoremen v. Ariadne Co., 397 U.S. 195, 202 90 S.Ct. 872, 25 L.Ed.2d 218 (1970).' Brief for Respondents in No. 72-1061, O.T.1973, p. 16. Petitioners apparently urged the same arguments in the Texas Court of Civil Appeals, whose judgment we reviewed in Windward, because that court stated:
7
'[A]ppellees' picketing carefully remained within the guidelines for permissible picketing on the premises of a secondary employer promulgated in Sailor's Union of the Pacific, 92 N.L.R.B. 547 and adopted in Local 761, Inter. Union of Elec., Radio and Mach. Wkrs. v. NLRB, 366 U.S. 667, 81 S.Ct. 1285, 6 L.Ed.2d 592 (1961)'6
8
Petitioners, having failed to persuade this Court in Windward that their Houston picketing was protected under § 7 of the National Labor Relations Act, 29 U.S.C. § 157, now contend that their Mobile picketing was at least arguably a secondary boycott prohibited by § 8(b)(4)(B) of the Act, 29 U.S.C. § 158(b)(4)(B). They would have us hold not only that there is an independent controversy between petitioner unions, representing American seamen, and the contracting stevedores represented by respondent, but also that this independent dispute is subject to the jurisdiction of the Board.
9
Acceptance of petitioners' argument would result in a rule whereby a state court had jurisdiction over a complaint for injunction filed by a foreign-ship owner claiming that picketing activities of a union were interfering with his business relationships with a contract stevedore, but the same court would have no jurisdiction where the contract stevedore sought an injunction on precisely the same grounds. The anomaly of such a result is reason enough to question it, but we believe that there is a more fundamental flaw in petitioners' claim.
10
Even if there is a dispute between petitioners and respondents which is, in some semantic sense, independent of petitioners' dispute with foreign-flag ships, that dispute is subject to state-court disposition unless it satisfies the jurisdictional requirements of the NLRA. In this regard, we note that a necessary predicate for a finding by the Board of an unfair labor practice under § 8(b)(4)(i) is that the individual induced or encouraged must be employed by a 'person engaged in commerce or in an industry affecting commerce.' Similarly, a necessary predicate for finding an unfair labor practice under § 8(b)(4)(ii) is that the person threatened, coerced, or restrained must have been engaged in 'commerce or in an industry affecting commerce,' and a necessary predicate for Board jurisdiction of unfair labor practices under § 10(a) of the Act, 29 U.S.C. § 160(a) is that they be practice 'affecting commerce.'
11
Petitioners interpret Windward as having done nothing more than establish that the maritime operations of foreign ships are not 'in commerce.' They assume that Windward said nothing about either the business activities of persons seeking to deal with such ships, or about whether, for these purposes, those activities are 'in commerce' or 'affecting commerce.' Petitioners therefore are able to state that the requirements of §§ 8(b)(4) and 10 are satisfied because:
12
'Unquestionably, the Association, constituting stevedoring companies employing longshoremen to load and discharge vessels at the port of Mobile, Alabama, is an 'employer' engaged in 'commerce' under the Act, and equally unquestionably, respondent Malone, delivering his soybeans to the dock elevator, is a 'person' engaged in 'commerce,' under the Act.' Brief for Petitioners 15-16.
13
We do not believe, however, that the line of cases7 commencing with Benz and culminating in Windward permit such a bifurcated view of the effects of a single group of pickets at a single site.
14
In Windward we stated that our task was to determine 'whether the activities . . . complained of were activities 'affecting commerce' within the meaning of . . . the National Labor Relations Act,'8 and we concluded that they were not. 415 U.S., at 105-106, 94 S.Ct., at 961, 39 L.Ed.2d 195. We recognized that the picketing activities did not involve the inescapable intrusion into the affairs of foreign ships that was present in Benz and Incres, but we went on to say that the latter cases 'do not purport to fully delineate the threshold of interference with the maritime operations of foreign vessels which makes the LMRA inapplicable.' 415 U.S., at 114, 94 S.Ct., at 965. We further observed:
15
'At the very least, the pickets must have hoped to exert sufficient pressure so that foreign vessels would be forced to raise their operating costs to levels comparable to those of American shippers, either because of lost cargo resulting from the longshoremen's refusal to load or unload the vessels, or because of wage increases awarded as a virtual self-imposed tariff to regain entry to American ports. Such a large scale increase in operating costs would have more than a negligible impact on the 'maritime operations' of these foreign ships, and the effect would be by no means limited to costs incurred while in American ports. Unlike Ariadne, the protest here could not be accommodated by a wage decision on the part of the shipowners which would affect only wages paid within this country.'9 Ibid. (Emphasis supplied.) While we thus spoke in Windward of the effect of the Houston pickets on the maritime operations of foreign ships, the quoted passage shows that we fully recognized that this effect would not be produced solely by the pickets and the messages carried by their signs. It would be produced in large part by the refusal of American workmen employed by domestic stevedoring companies to cross the picket line in order to load and unload cargo coming to or from the foreign ships. Since Windward held that the Houston picketing was not in or affecting commerce, it would be wholly inconsistent to now hold, insofar as concerns Board jurisdiction over a complaint by respondents, that the employer of the longshoremen who honored the picket line, or the shipper whose goods they did not handle, was in or affecting commerce.
16
That we found it unnecessary to expressly state this conclusion in Windward suggests not the point is an undecided one, but that such a conclusion inevitably flows from the fact that the response of the employees of the American stevedores was a crucial part of the mechanism by which the maritime operations of the foreign ships were to be affected. The exaction of the 'selfimposed tariff to regain entry to American ports' does not depend upon American shippers heeding the message on the picket signs and declining to ship their cargoes in foreign bottoms. The same pressure upon the foreign-flag owners will result if longshoremen refuse to load or unload their ships. The effect of the picketing on the operations of the stevedores and shippers, and thence on these maritime operations, is precisely the same whether it be complained of by the foreign-ship owners or by persons seeking to service and deal with the ships. The fact that the jurisdiction of the state courts in this case is invoked by stevedores and shippers does not convert into 'commerce' activities which plainly were not such in Windward.10
17
Our dissenting Brethren contend that our disposition is inconsistent with the Court's decision in Hattiesburg Building and Trades Council v. Broome, 377 U.S. 126, 84 S.Ct. 1156, 12 L.Ed.2d 172 (1964), and with the Board's decision in Sailors' Union of the Pacific (Moore Dry Dock), 92 N.L.R.B. 547 (1950).Hattiesburg dealt with the quite different question of applying the Board's own limitation of its statutory jurisdiction to those case which have 'asubstantial effect on commerce.' 23 N.L.R.B.Ann.Rep. 7 (1958) (emphasis added). The Board had promulgated a series of administratively established standards, in effect ceding to state courts and agencies disputes involving entities which admittedly 'affected commerce,' but whose volume of interstate business was not 'sufficiently substantial to warrant the exercise of [Board] jurisdiction.' 29 U.S.C. § 164(c). The standards provided that they could be 'satisfied by reference to the business operations of either the primary or the secondary employer.' Hattiesburg, supra, 377 U.S., at 126, 84 S.Ct., at 1157. Because of this provision, the Board had not in fact ceded its jurisdiction over the particular dispute that had been presented to the Mississippi courts. InHattiesburg this Court did no more than enforce the natural consequence of this fact by holding that Garmon deprived the state courts of jurisdiction. We find nothing in that holding inconsistent with what we say or hold here. CertainlyHattiesburg does not, as Mr. Justice STEWART's dissent would have it, stand for the proposition that a secondary employer's domestic business activities may be the basis for Board jurisdiction where the primary dispute is beyond itsstatutory authority over unfair labor practices 'affecting commerce.' 29 U.S.C. § 160(a).
18
That dissent's treatment of Moore Dry Dock, supra, reads a great deal more into the 1950 Board decision than its language and analysis can support. The decision itself contains no reference whatever to the jurisdiction of the Board over the primary employer, the foreign-flag vessel Phopho, and neither the decision nor the Trial Examiner's report considered the jurisdictional challenge presently confronting this Court. The Trial Examiner's report, from which that dissenting opinion quotes, did state that the Board, in an apparently unreported determination, had previously dismissed a petition for election aboard the Phopho, 92 N.L.R.B. 547, 560-561. The report later acknowledged that the Board had 'left somewhat obscure the precise legal basis' of its jurisdictional ruling, a comment which was evoked by the contention that because the primary employer was 'clearly engaged in commerce,' the ruling must have been based on a different jurisdictional defect. Id., at 568. This Court in Benz v. Compania Naviera Hidalgo, 353 U.S. 138, 77 S.Ct. 699, 1 L.Ed.2d 709 (1957), not only noted that Moore Dry Dock involved a different situation, but also rather pointedly stated: 'We need only say that these cases are inapposite, without, of course, intimating any view as to their result.' 353 U.S., at 143 n. 5, 77 S.Ct., at 702. A 1950 Board precedent such as this can scarcely be regarded as controlling when it is clearly contrary to the thrust of this Court's Benz-Windward line of cases.
19
Petitioner rely on Local Union No. 25 of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. N. Y., N. H. & H. R. Co., 350 U.S. 155, 76 S.Ct. 227, 100 L.Ed. 166 (1956), and Plumbers, Steamfitters, Refrigeration, Petroleum Fitters, and Apprentices of Local 298, A. F. of L. v. County of Door, 359 U.S. 354, 79 S.Ct. 844, 3 L.Ed.2d 872 (1959), for the proposition that even though the Board may not have jurisdiction over the primary labor relations of a party which is excluded from the Act's definition of 'employer,'11 it is nonetheless competent to consider secondary disputes involving such a party. In Teamsters Union, supra, a railroad was held to be barred from seeking relief in the state courts against a secondary boycott. The Court held that while the railroad was not a statutory 'employer,' it was nonetheless a 'person' protected by § 8(b)(4). A similar result was reached in Door County, supra, in which a non-'employer' county sought state court relief, not with respect to activities of its own employees, but with respect to a claimed secondary boycott arising from picketing against a nonunion subcontractor working on an addition to the county courthouse. While these cases establish the proposition that an entity which is not within the Act's definition of 'employer' may nonetheless be a 'person' for purposes of protection against secondary boycotts, neither they nor any other case decided by this Court suggests that the Board has jurisdiction of § 8(b)(4) complaints if the alleged unfair labor practice does not affect commerce. Indeed, in Door County, supra, the Court pointedly inquired whether the out-of-state origin of construction materials was sufficient to establish the jurisdictionally required effect on interstate commerce. 359 U.S., at 356, 79 S.Ct., at 845.
20
Here, neither the farmer seeking to ship his soybeans, the stevedores who contracted to unload the cargo of the foreign-flag vessel, nor the longshoremen whom the stevedores employed to carry out this undertaking, were for these purposes engaged in or affecting commerce within the purview of the National Labor Relations Act. Therefore the petitioners' picketing did not even 'arguably' violate § 8(b)(4)(B) of that Act. Since Congress did not intend to strain through the filament of the NLRA picketing activities which so directly affect the martime operations of foreign vessels, we hold that the Alabama courts were competent to apply their own law in resolving the dispute between petitioners and respondents unless, as petitioners claim, such a resolution violated petitioners' rights under the First and Fourteenth Amendments.
II
21
After concluding that the state courts had jurisdiction, the Supreme Court of Alabama considered whether the picketing was protected by the First and Fourteenth Amendments. Relying on International Brotherhood of Teamsters, Local 695, A.F.L. v. Vogt, Inc., 354 U.S. 284, 77 S.Ct. 1166, 1 L.Ed.2d 1347 (1957), it concluded that if the picketing compromised valid public policies, it was not protected by its putative purpose of conveying information. The court therefore thought that the matter narrowed to whether or not the picketing had a purpose or objective to 'wrongfully interfere' with respondents' businesses. Recognizing that the unions were appealing a temporary injunction, issued as a matter of equitable discretion to preserve the status quo pending final resolution of the dispute, the court inquired only whether there was evidence of a prohibited purpose sufficient to establish that the trial judge had not abused the 'wide discretion' he possesses in such matters. The court found such evidence in the testimony of a local union official charged with carrying out the picketing. He had expressed the hope that union men would not cross the lines, that the port would become cluttered with foreign ships unable to load or unload, and that the docks would be shut down. On this basis the court concluded that a substantial question was presented as to whether the picketing had a prohibited purpose, and that the trial judge had not abused his discretion.
22
Petitioners repeat their First and Fourteenth Amendment arguments before this Court. They contend that the picketing was expressive conduct informing the public of the injuries they suffer at the hands of foreign ships, and 'imploring the public' to "Buy American' or 'Ship American." Brief for Petitioners 21. This conduct, they contend, constitutes 'the lawful exercise of protected fundamental rights of free speech,' and is thus not subject to injunction.
23
We think this line of argument is foreclosed by our holding in Vogt, supra. There the Court, in an opinion by Mr. Justice Frankfurter, reviewed the cases in which we had dealt with disputes involving the interests of pickets in disseminating their message and of the State in protecting various competing economic and social interests. Vogt endorsed the view that picketing involves more than an expression of ideas, 354 U.S., at 289, 77 S.Ct., at 1168, and referred to our 'growing awareness that these cases involved not so much questions of free speech as review of the balance struck by a State between picketing that involved more than 'publicity' and competing interests of state policy.' Id., at 290, 77 S.Ct. at 1169. The Court concluded that our cases 'established a broad field in which a State, in enforcing some public policy, whether of its criminal or its civil law, and whether announced by its legislature or its courts, could constitutionally enjoin peaceful picketing aimed at preventing effectuation of that policy.' Id., at 293, 77 S.Ct., at 1171. We believe that in the case now before us Alabama's interference with petitioners' picketing is well within that 'broad field.'
24
Petitioners seek to escape from Vogt in three ways. First, they contend that this case is squarely controlled by 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). In that case, claim petitioners, picketing 'identical as at bar, [designed] to peacefully and truthfully publicize substandard wages and concomitantly request the public not to patronize the picketed entity,' was held to be protected. Brief for Petitioners 20. In rejecting this contention, we need only point out that Logan Valley concerned the location of picketing, not its purpose; indeed, it was on exactly this basis that the Logan Valley Court distinguished the line of cases culminating in Vogt. 391 U.S., at 314, 88 S.Ct., at 1606. Logan Valley established only that in some circumstances private business property can be so thoroughly clothed in the attributes of public property that it may not be completely closed as a public forum to those who wish to present otherwise lawful communications.
25
Petitioners' second argument is that the injunction here is not supported by a 'valid public policy,' as required by Vogt. They point out that while the Alabama Supreme Court stated the public policy to be the prevention of 'wrongful interference' with respondents' businesses, it did not expressly define that term. We, however, think it obvious that in this context 'wrongful interference' refers to efforts by third parties to induce employees to cease performing services essential to the conduct of their employer's business. That third-party participation is critical to picketing being categorized as 'wrongful interference' is clear from Pennington v. Birmingham Baseball Club, 277 Ala. 336, 170 So.2d 410 (1964), a case cited by the Alabam Supreme Court in its opinion in this case.
26
In Pennington the Supreme Court of Alabama indicated that the state policy against 'wrongful interference' is quite analogous to the federal policy of prohibiting secondary boycotts, and is based on similar considerations. The State's policy also appears to be based on the state interest in preserving its economy against the stagnation that could be produced by pickets' disruption of the businesses of employers with whom they have no primary dispute. At Mobile the picketing threatened to eliminate the 70% to 80% of the stevedores' business that depended on foreign shipping, and to cause serious losses for farmers whose agricultural crops required immediate harvesting and shipping.12 Under Vogt, supra, the State may prefer these interests over petitioners' interests in conveying their 'Ship American' message through the speech-plus device of dockside picketing.
27
Petitioners' final contention is that the record fails to support the conclusion that a substantial question existed as to whether the picketing constituted 'wrongful interference' under Alabama law. The question of whether evidence is sufficient to make out a cause of action created by state law and tried in the state courts is a matter for decision by those courts. Insofar as petitioners' argument on this score may be read to suggest that the evidence before the Alabama court would not support a finding that their activities were such as could be enjoined under Vogt, supra, we reject it. Petitioners seem to argue that the Alabama courts were bound by the statements of purpose appearing on the pickets' signs and literature, and that in any event one local official's statements of his hopes and expectations as to the picketing's effect could not override those stated purposes. This argument ignores the wide latitude open to triers of fact to make factual determinations on the basis of rational inferences which arise from the nature, location, and effect of picketing. See Vogt, supra, 354 U.S. at 286, 295, 77 S.Ct., at 1167, 1171; Local Union No. 10, United Association of Journeymen, Plumbers and Steamfitters of United States and Canada of A.F.L. v. Graham, 345 U.S. 192, 197-200, 73 S.Ct. 585, 587-589, 97 L.Ed. 946 (1953).
28
Concluding that the jurisdiction of the Alabama courts in this case was not pre-empted by the National Labor Relations Act, and that the action of those courts in enjoining the picketing at Mobile violated no right conferred upon petitioners by the First and Fourteenth Amendments, we affirm the judgment of the Supreme Court of Alabama.
29
Affirmed.
30
Mr. Justice DOUGLAS, dissenting.
31
I agree with my Brother STEWART that the dispute in the present case is within the jurisdiction of the National Labor Relations Board and that that jurisdiction is exclusive of state jurisdiction. The foreign-flag ship involved in the present controversy is Liberian. Hence I add a few observations generated by Noe l Mostert's Supership (1974) discussing the problems of the big new oil tankers and their vast pollution of the oceans of the world. He puts Liberian-flag ships in the following perspective:
32
'Liberia now has the world's largest merchant marine, followed by Japan and Britain, and her lead is rapidly increasing; flag of convenience fleets have regularly grown at rates more than twice those of world fleets as a whole. Liberia and Panama together now own, on paper, nearly a quarter of world shipping. Tankers dominate these expatriate fleets.
33
'Thirty-five to 40 percent of the Liberian tonnage is American-owned, and an additional 10 percent of it is American-financed, which helps explain where the American merchant fleet, in steady decline since the end of the war, has taken itself. According to law, American-flag ships must be built in the United States and must be three-quarters manned by Americans. American shipbuilding costs used to be double those elsewhere (inflation abroad has helped make them competitive again), and American seamen's wages are still higher than elsewhere. . . .
34
'Flag of convenience operators often say that their ships, especially many of those under the Liberian flag, are among the largest, best-equipped, and most modern in the world. This may be true. But ships are only as good as the men who run them, and the record is not impressive. Old ships traditionally have a higher casualty rate than new ones. Liberian losses between 1966 and 1970 not only averaged twice as high as those of the other major maritime nations, but, contrary to the rule, the ships they were losing were on the whole new ones, certainly newer than the ones lost by the other principal merchant marines: the average age of Liberian losses in that four-year period was 8.7 years, while that of the Japanese and Europeans averaged 12 years.
35
'To a disconcerting degree, oil cargoes have been delivered in recent years by improperly trained and uncertificated officers aboard ships navigating with defective equipment.' Id., at 58—59.
36
While the Liberian-flag vessel in the present case was not an oil tanker, the quoted passages demonstrate the scope of the public interest of our people in keeping marine traffic in more responsible hands than those which the 'flag of convenience' commonly uses. No public issue is today more important, at least to the life of the oceans of the world and the well-being of our own working force. Large national interests ride on today's decision. Congress, in this type of case, has appropriately made the National Labor Relations Board the exclusive arbiter of the present controversy, as my Brother STEWART convincingly demonstrates. I accordingly would reverse the judgment below.
37
Mr. Justice STEWART, with whom Mr. Justice DOUGLAS, Mr. Justice BRENNAN, and Mr. Justice MARSHALL join, dissenting.
38
The issue in the present case is quite different from the issue decided last Term in Windward Shipping (London) Ltd. v. American Radio Assn., 415 U.S. 104, 94 S.Ct. 959, 39 L.Ed.2d 195. Because the dispute in this case clearly 'affects commerce' and thus falls within the exclusive reglatory power of the National Labor Relations Board, I would reverse the judgment before us.
39
In Windward Shipping, the owners and managing agents of two foreign-flag vessels sought injunctive relief in state courts in Texas to bar picketing of their vessels by several American maritime unions. The unions were attempting to publicize the competitive advantage enjoyed by foreign-flag vessels because of the substantial disparity between foreign and domestic seamen's wages. The vessels' owners and managing agents asked the state courts to enjoin the picketing as tortious under Texas law. The primary basis for this claim was that the picketing sought to induce the foreign-flag vessel owners and their foreign crews to break pre-existing contracts. The Texas courts concluded that they lacked jurisdiction to consider the complaint of interference with contract because the dispute between the foreign-flag shipowners and the American unions was 'arguably' within the jurisdiction of the National Labor Relations Board.
40
In reversing the judgment of the Texas Court of Civil Appeals, this Court reaffirmed earlier cases that had recognized that 'Congress, when it used the words 'in commerce' in the [Labor Management Relations Act], simply did not intend that Act to erase longstanding principles of comity and accommodation in international maritime trade.' 415 U.S. at 112-113, 94 S.Ct., at 964. In those earlier cases the Court had concluded that maritime operations of foreign-flag ships employing alien seamen are not in 'commerce' within the meaning of § 2(6) of the National Labor Relations Act, as amended by the LMRA, 29 U.S.C. § 152(6). Therefore, disputes affecting those operations do not 'affect commerce,' and are not within the jurisdiction of the Board. See Benz v. Compania Naviera Hidalgo, 353 U.S. 138, 77 S.Ct. 699, 1 L.Ed.2d 709; McCulloch v. Sociedad Nacional, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547; Incres S. S. Co. v. Maritime Workers, 372 U.S. 24, 83 S.Ct. 611, 9 L.Ed.2d 557.
41
Although the union activity sought to be enjoined by the foreign-flag shipowners in Windward Shipping did not involve the same degree of intrusion into the internal affairs of foreign vessels that was present in Benz, McCulloch, and Incres, the Court concluded that the economic impact upon foreign shipping from the unions' conduct might severely disrupt the maritime operations of the foreign vessels. 'Virtually none of the predictable responses of a foreign shipowner to picketing of this type,' the Court noted, 'would be limited to the sort of wage cost decision benefitting American workingmen which the LMRA was designed to regulate.' 415 U.S. at 115, 94 S.Ct., at 965. Cf. International Longshoremen's Local 1416, A.F.L.C.I.O. v. Ariadne Shipping Co., 397 U.S. 195, 90 S.Ct. 872, 25 L.Ed.2d 218. Accordingly, the Court held that the Texas courts had jurisdiction over the foreign shipowners' complaint that the union activity was interfering with pre-existing contracts between the owners and their crews.
42
The question presented by this case, however, is not whether state-court jurisdiction over a dispute between owners of foreign-flag vessels and American maritime unions is outside the scope of the Act, as it was in Windward Shipping. Rather, the question is whether state courts have jurisdiction over a complaint by an association of American stevedoring companies that secondary pressure caused by the picketing of American maritime unions constituted a wrongful interference with the American companies' right to carry on their lawful business. Neither the language of the Act nor the principles of comity underlying our decision in Windward Shipping support the Court's conclusion that this dispute between American employers and American unions is outside the jurisdiction of the Labor Board.
43
As in Windward Shipping, the labor dispute in this case began when six American maritime unions picketed a foreign vessel to publicize the adverse consequences to American seamen of the low wages paid by the foreign shipowner. As a result of the picketing, American longshoremen and other workers employed by the member companies of the Mobile Steamship Association refused to service the foreign-flag vessel. It was this allegedly unlawful secondary pressure generated by the maritime unions' picketing that the Mobile Steamship Association sought to enjoin in state court as a tortious interference with its right to contract and to carry on its lawful business.
44
The allegedly tortious secondary pressure that formed the basis for Mobile Steamship Association's state-court complaint is precisely the type of concerted activity made subject to Board regulation by § 8(b)(4)(i)(B) of the National Labor Relations Act, as amended, 73 Stat. 542, 29 U.S.C. § 158(b)(4)(i)(B). That section, designed to shield neutral third parties from the adverse impact of labor disputes in which they are not involved, makes it an unfair labor practice for a labor organization 'to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities . . . where . . . an object thereof is . . . forcing or requiring any person . . . to cease doing business with any other person . . ..'
45
I cannot agree with the Court's conclusion that the secondary dispute between the American maritime unions and the Mobile Steamship Association that is the basis for this lawsuit fails to satisfy all the jurisdictional requirements of § 8(b)(4)(B).1 Windward Shipping and the cases on which it relied have established that the maritime operations of foreign-flag ships employing alien seamen are not in 'commerce' within the meaning of the Act. Accordingly, we held in those cases that labor disputes affecting those operations do not 'affect commerce,' so far as the Act is concerned. But those decisions cannot be read to suggest that American stevedoring companies whose American employees load and unload both American-and foreign-flag vessels in American ports are not 'engaged in commerce or in an industry affecting commerce.' Indeed, in International Longshoremen's Local 1416, A.F.L.-C.I.O. v. Ariadne Shipping Co., 397 U.S., at 200, 90 S.Ct., at 874, we held that longshoremen servicing foreign-flag vessels in American ports are in 'commerce' within the meaning of § 2(6) of the Act, and thus subject to the regulatory power of the Board. Consequently, stevedoring companies employing such longshoremen must be 'engaged in commerce or in an industry affecting commerce' within the meaning of § 8(b)(4)(B), and a labor dispute affecting their operations necessarily 'affects commerce' within the meaning of the Act.
46
The Court's contrary conclusion appears to be based on the premise that it would be 'wholly inconsistent' to hold that the unions' picketing was not 'affecting commerce' so far as the primary dispute with the foreign-flag shipowner was concerned but was 'affecting commerce' in the secondary dispute here involved. Ante, at 224. The Court does not indicate that a secondary dispute between the maritime unions and the Mobile Steamship Association could never 'affect commerce' within the meaning of the Act, unlike the Windward Shipping dispute between the unions and the foreign shipowners which would never 'affect commerce.'
47
If the maritime unions had a primary dispute with American-flag shipowners, that dispute would clearly 'affect commerce' within the meaning of the Act, and would thus clearly fall within the Board's regulatory power. To avoid inconsistency the Court would presumably conclude that a secondary dispute between stevedoring companies and maritime unions in such a situation would also 'affect commerce.' The Court would thus make the determination whether an American stevedoring company was 'engaged in an industry affecting commerce,' the § 8(b)(4)(B) jurisdictional requirement, depend entirely on whether in a particular case a primary labor dispute to which the stevedoring company was not privy was between an American union and an American-flag shipowner or an American union and a foreign-flag shipowner. 'The anomaly of such a result is reason enough to question it . . ..' Ante, at 221.
48
More importantly, the Court's conclusion that this secondary dispute between an American employer and American unions does not affect commerce because the primary dispute between the unions and foreign-flag shipowners is not within the Board's jurisdiction squarely conflicts with our decision in Hattiesburg Building & Trades Council v. Broome, 377 U.S. 126, 84 S.Ct. 1156, 12 L.Ed.2d 172. In that case, an employer subjected to secondary pressure brought suit in state court to enjoin picketing at its premises. After finding that the primary employer was not in 'commerce' within the meaning of the Act, the state court ruled that the pre-emption doctrine of San Diego Building Trades Council, Millmen's Union, Local 2020 v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 was not applicable. The state court then enjoined the secondary picketing of the union. This Court unanimously reversed that judgment, holding that the record clearly showed that 'the secondary employer's operations met the [Board's] jurisdictional requirements. Since the union's activities in this case were arguably an unfair labor practice, the state court had no jurisdiction to issue the injunction.' 377 U.S., at 127, 84 S.Ct., at 1157 (emphasis added; citations omitted).
49
The unanimous holding in Broome that exclusive Board jurisdiction over a secondary dispute exists although the primary dispute did not 'affect commerce' within the meaning of the Act finds solid support in the language of § 8(b)(4)(B) itself. The section expressly requires that the neutral, secondary employer be 'engaged in commerce or in an industry affecting commerce.' However, it requires only that the primary object of the secondary pressure be a 'person.' As defined by § 2(1) of the Act, 29 U.S.C. § 152(1), there is no requirement that a 'person,' which includes 'individuals, labor organizations, partnerships, associations, [and] corporations,' either be 'engaged in commerce or in an industry, affecting commerce,' or otherwise be within the jurisdiction of the Act. See Plumbers, Steamfitters, Refrigeration, Petroleum Fitters, and Apprentices of Local 298 A.F. of L. v. County of Door, 359 U.S. 354, 79 S.Ct. 844, 3 L.Ed.2d 872 (governmental unit); Local Union No. 25. of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. New York, N.H. & H.R.R., 350 U.S. 155, 76 S.Ct. 227, 100 L.Ed. 166 (railroad). Thus, the fact that the foreign-flag vessel which was the primary object of the unions' picketing activity was not in 'commerce' cannot stand as a bar to the Board's exercise of jurisdiction over the secondary dispute in this case.
50
Neither considerations of comity nor a 'reluctance to intrude domestic labor law willy-nilly into the complex of considerations affecting foreign trade,' Windward Shipping (London) Ltd. v. American Radio Assn., 415 U.S., at 110, 94 S.Ct. at 963, 39 L.Ed.2d 195, justifies the Court's disregard of the clear language of § 8(b)(4)(B) or its failure to follow the Broome decision. The dispute before the Alabama courts did not involve the maritime operations of the foreign-flag vessel that was the primary target of the unions' activity. The ship-owners were not parties to the state-court lawsuit. The injunction approved by the Alabama Supreme Court is concerned solely with union interference with operations and contractual relations of the Mobile Steamship Association at the Port of Mobile. That one of the contractual relationships allegedly interfered with was between members of the Association and a foreign-flag vessel is not apparent from the face of the state-court injunction.2
51
In short, the dispute between American workingmen and unions and their American employers was well within the boundaries of the Act as we have defined those boundaries in Windward Shipping, Benz, McCulloch, and Incres. As such, it is indistinguishable from a number of secondary boycott cases over which the Board has exercised its exclusive jurisdiction. For example, in Sailors' Union of the Pacific (Moore Dry Dock), 92 N.L.R.B. 547, the Board considered charges by an American drydock owner that union picketing of a Panamanian ship tied up at the drydock constituted unlawful secondary activity. The union was picketing in an attempt to be recognized as the bargaining representative of the Panamanian shipowner's crew. Prior to the Board's consideration of the secondary dispute, the union had filed a petition for certification with the Regional Director of the NLRB. The petition was dismissed "inasmuch as the internal economy of a vessel of foreign registry and ownership is involved." Upon appeal, the Board sustained the Regional Director's action on the ground that "upon the facts presently existing in this case, it does not appear that the Board has jurisdiction over the [e]mployer." Id., at 560-561. Notwithstanding the Board's refusal to exercise jurisdiction over the primary dispute because it involved a foreign-flag vessel, the Board assumed jurisdiction over the secondary dispute between the union and the drydock owner. This Court in Benz observed that the Board's assumption of jurisdiction over the secondary dispute in Moore Dry Dock was very different from an attempt to assert jurisdiction over the primary dispute involving the foreign-flag shipowner, Benz v. Compania Naviera Hidalgo, 353 U.S., at 143 n. 5, 77 S.Ct., at 702, 1 L.Ed.2d 709.3
52
Because the secondary dispute in this case implicates only American employers and their American employees, following the literal language of § 8(b)(4)(B) and recognizing the Board's exclusive jurisdiction over the dispute would not in any way undermine the principles of comity emphasized in our decision in Windward Shipping. The Board will only decide whether the secondary effects of the dispute are prohibited by § 8(b)(4)(B). Exercise of this jurisdiction will not 'thrust the National Labor Relations Board into 'a delicate field of international relations." International Longshoremen's Assn. Local 1416 v. Ariadne Shipping Co., 397 U.S., at 199, 90 S.Ct., at 874, 25 L.Ed.2d 218. Certainly a Board decision that secondary pressure violated § 8(b)(4)(B) would not risk interference with international maritime trade. Nor would a decision that the secondary pressure did not violate § 8(b)(4)(B) endanger the foreign-flag shipowners' interests in preserving the integrity of their maritime operations from the impact of the unions' picketing. These interests are fully protected under Windward Shipping by permitting the foreign shipowner to seek an injunction in state court.
53
Where activities by parties subject to the regulatory power of the National Labor Relations Board are 'arguably' prohibited by § 8 of the National Labor Relations Act, the general rule is that the jurisdiction of the Board is exclusive, pre-empting both federal-and state-court jurisdiction. San Diego Building Trades Council v. Garmon, 359 U.S., at 245, 79 S.Ct., at 779-780; see International Longshoremen's Local 1416 v. Ariadne Co., supra, 397 U.S., at 201-202, 90 S.Ct., at 875-876 (White J., concurring). Despite this rule the Solicitor General has suggested as amicus curiae that we recognize concurrent jurisdiction in state courts and the Board to enjoin secondary conduct when the primary dispute involves a foreign-flag vessel. Congress adopted such a proposal for concurrent state-court jurisdiction to award damages for conduct that violates § 8(b)(4). § 303, Labor Management Relations Act, as amended, 29 U.S.C. § 187; see Local 20, Teamsters, Chauffeurs & Helpers Union v. Morton, 377 U.S. 252, 84 S.Ct. 1253, 12 L.Ed.2d 280. But Congress expressly rejected a proposal for a comparable exception to the general rule of exclusive jurisdiction for complaints seeking injunctive relief against secondary conduct arguably prohibited by § 8(b)(4).4 The only distinction between the amendment providing for general concurrent jurisdiction over secondary conduct rejected by Congress and the scheme suggested by the Government is that the Solicitor General would limit concurrent state-court jurisdiction to secondary disputes in which the primary employer was a foreign-flag shipowner.Windward Shipping fully protects the interests of these shipowners in maintaining the integrity of the maritime operations of their vessels by permitting them to seek state-court injunctions. Consequently, this distinction cannot justify overruling the congressional determination that American employers who enjoy the protection of § 8(b)(4) should be limited to securing injunctive relief through the Board.
54
The Solicitor General also argues that there is no justification for the pre-emption doctrine in cases involving secondary disputes where the primary dispute is outside the jurisdiction of the Board. That position, of course, directly conflicts with Hattiesburg Building & Trades Council v. Broome, 377 U.S. 126, 84 S.Ct. 1156, 12 L.Ed.2d 172, where this Court, as previously noted, reversed a state-court injunction directed against secondary conduct, holding the pre-emption doctrine applicable even though the Board had no jurisdiction over the primary dispute.
55
Moreover, even though the primary dispute is outside the Board's jurisdiction, there is a continuing need to avoid development of conflicting rules of substantive law governing concerted secondary conduct. Through initial passage and subsequent amendment of § 8(b)(4)(B), Congress has clearly stated that certain types of secondary activity are illegal without regard to the identity of the primary employer. But just as deliberately, Congress has chosen not to prohibit resort to certain types of secondary pressure. If the Alabama law of secondary boycotts can be applied to proscribe conduct that Congress decided not to prohibit when it enacted § 8(b)(4)(B), 'the inevitable result would be to frustrate the congressional determination to leave this weapon of self-help available, and to upset the balance of power between labor and management expressed in our national labor policy. 'For a state to impinge on the area of labor combat designed to be free is quite as much an obstruction of federal policy as if the state were to declare picketing free for purposes or by methods which the federal Act prohibits." Local 20, Teamsters, Chauffeurs & Helpers Union v. Morton, 377 U.S., at 260, 84 S.Ct., at 1258; quoting Garner v. Teamsters, Chauffeurs and Helpers Local Union, No. 776, 346 U.S. 485, 500, 74 S.Ct. 161, 171, 98 L.Ed. 228.
56
The need to avoid conflicting rules of substantive law in the labor relations area and the desirability of leaving the development of such rules to the National Labor Relations Board, the agency created by Congress for that purpose, is a 'primary justification for the preemption doctrine.' Vaca v. Sipes, 386 U.S. 171, 180, 87 S.Ct. 903, 912, 17 L.Ed.2d 842. Because the secondary activity of the maritime unions challenged by the Mobile Steamship Association 'arguably' violates § 8(b)(4)(B) of the Act, that need is fully present in the instant case.
57
In sum, the dispute between the American unions and the American stevedoring companies in this case clearly 'affects commerce' within the meaning of the Act and thus falls within the exclusive regulatory power of the National Labor Relations Board. The judgment of the Alabama Supreme Court should, therefore, be reversed.
1
The decision of the Supreme Court of Alabama is reported at 291 Ala. 201, 279 So.2d 467 (1973). Because that court validated only a temporary injunction, and remanded for trial on the merits, an issue has been raised as to our jurisdiction to consider this case. We think that Local No. 438, Construction and General Laborers Union v. Curry, 371 U.S. 542, 83 S.Ct. 531, 9 L.Ed.2d 514 (1963), is conclusive of the finality of the judgment below for the purposes of 28 U.S.C. § 1257.
2
The pickets carried signs which read:
'ATTENTION TO THE PUBLIC THE WAGES AND BENEFITS PAID ABOARD THE VESSEL §§ [name of vessel] ARE SUB-
STANDARD TO THOSE OF THE AMERICAN SEAMEN.
THIS RESULTS IN EXTREME DAMAGE TO OUR WAGE STANDARD AND THE LOSS OF OUR JOBS.
PLEASE DO NOT PATRONIZE [THIS VESSEL].
HELP THE AMERICAN SEAMEN.
WE HAVE NO DISPUTE WITH OTHER VESSELS AT THIS SITE.'
[Printed names of the six unions.] App. 6a. They distributed literature which stated:
'To the Public—American Seamen have lost approximately 50% of their jobs in the past few years to foreign flag ships employing seamen at a fraction of the wages of American Seamen.
'American dollars flowing to these foreign shipowners operating ships at wages and benefits substandard to American Seamen, are hurting our balance of payments in addition to hurting our economy by the loss of jobs.
'A strong American Merchant Marine is essential to our national defense. The fewer American flag ships there are, the weaker our position will be in a period of national emergency.
'PLEASE PATRONIZE AMERICAN FLAG VESSELS, SAVE OUR JOBS, HELP OUR ECONOMY AND SUPPORT OUR NATIONAL DEFENSE BY HELPING TO CREATE A STRONG AMERICAN MERCHANT MARINE.
'Our dispute here is limited to the vessel picketed at this site, the S. S. _____' Id., at 7a.
[Printed names of the six unions.]
3
291 Ala., at 205, 279 So.2d, at 470.
4
The stevedoring companies appear here through their bargaining representative, Mobile Steamship Association, Inc.
5
Petitioners also suggest that the result should be different because Windward did not involve vessels which, while flying foreign flags, were American owned. Petitioners do not, however, direct our attention to any evidence in the record as to the ownership of the Agua Glory. In any event, we think this factor irrelevant, in light of McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 19, 83 S.Ct. 671, 676, 9 L.Ed.2d 547 (1963).
6
Windward Shipping (London) Ltd. v. American Radio Assn., 482 S.W.2d 675, 678 (1972).
7
Benz v. Compania Naviera Hidalgo, 353 U.S. 138, 77 S.Ct. 699, 1 L.Ed.2d 709 (1957); McCulloch v. Sociedad Nacional, etc., 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963); Incres S.S. Co. v. International Maritime Workers Union, 372 U.S. 24, 83 S.Ct. 611, 9 L.Ed.2d 557 (1963).
8
The relevant definitions appear in 29 U.S.C. §§ 152(6) and (7):
'(6) The term 'commerce' means trade, traffic, commerce, transportation, or communication among the several States, or between the District of Columbia or any Territory of the United States and any State or other Territory, or between any foreign country and any State, Territory, or the District of Columbia, or within the District of Columbia or any Territory, or between points in the same State but through any other State or any Territory or the District of Columbia or any foreign country.
'(7) The term 'affecting commerce' means in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce.'
9
Our Brother STEWART suggests in dissent that International Longshoremen's Ass'n Local 1416 v. Ariadne Shipping Co., 397 U.S. 195, 90 S.Ct. 872, 25 L.Ed.2d 218 (1970), requires reversal here, because in that case it was held that longshoremen servicing foreign-flag vessels in American ports are in 'commerce' within the meaning of the Act. But the Ariadne court, in distinguishing Benz, supra, and McCulloch, supra, stated that '[t]he considerations and informed the Court's construction of the statutue' in those cases 'are clearly inapplicable to the situation presented here. The participation of some crew members in the longshore work does not obscure the fact that this dispute centered on the wages to be paid American residents, who were employed by each foreign ship not to serve as members of its crew but rather to do casual longshore work.' 397 U.S., at 199, 90 S.Ct., at 874. The Court in Windward reiterated that distinction:
'The picketers in Ariadne, unlike the picketers in Benz or Incres, were primarily engaged in a dispute as to whether an employer should hire unionized or nonunionized American workers to perform longshoremen's work, and the substandard wages which they were protesting were being paid to fellow American workers.' 415 U.S., at 112, 94 S.Ct., at 964.
Here the picketing which triggered the dispute was not directed toward any wages or conditions of employment of the longshoremen. It was instead directed to substandard wages being paid to the crews of foreign-flag vessels throughout those vessels' worldwide maritime operations. In Ariadne, on the contrary, the picketing was directed toward requiring a foreign-flag vessel to hire unionized American workers, rather than nonunionized American workers, to service vessels berthed in American ports. That the latter effect does not surpass 'the threshold of interference with the maritime operations of foreign vessels which makes the LMRA inapplicable,' Windward, supra, at 114, 94 S.Ct., at 965, certainly provides no support for the proposition that the former effect also does not surpass that threshold.
10
In so holding, we need cast no doubt on those cases which hold that the Board has jurisdiction under § 8(b)(4) of domestic secondary activities which are in commerce, even though the primary employer is located outside the United States. See Madden v. Grain Elevator, Flour and Feed Mill Workers, International Longshoremen Assn., Local 418, 334 F.2d 1014 (CA7 1964), cert. denied, 379 U.S. 967, 85 S.Ct. 661, 13 L.Ed.2d 560 (1965); Grain Elevator, Flour and Feed Mill Workers, International Longshoremen Assn., Local 418, A.F.L.-C.I.O. v. NLRB, 126 U.S.App.D.C. 219, 376 F.2d 774, cert. denied, 389 U.S. 932, 88 S.Ct. 296, 19 L.Ed.2d 285 (1967).
11
The definition appears in 29 U.S.C. § 152(2):
'(2) The term 'employer' includes any person acting as an agent of an employer, directly or indirectly, but shall not include the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof, or any corporation or association operating a hospital, if no part of the net earnings inures to the benefit of any private shareholder or individual, or any person subject to the Railway Labor Act, as amended from time to time, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization.'
12
The record indicates that all grain storage facilities in the Mobile area were full. Additional soybeans could be harvested only as those already stored were transferred to waiting vessels. App. 77a-80a.
1
Nobody has suggested that the maritime unions engaged in the secondary picketing are not 'labor organizations' within the meaning of § 2(5) of the Act, 29 U.S.C. § 152(5), or that the longshoremen and other workers who refused to cross the picket lines and service the foreign-flag vessel are not 'employees' within the meaning of § 2(3), 29 U.S.C. § 152(3).
2
The Alabama courts enjoined the six maritime unions, their officers, members, and employees, from:
'1. Loitering, congregating, or picketing, by standing, walking, marching, sitting, or otherwise, at or near any part of the premises owned, occupied, or used by members of Complainant Mobile Steamship Association, Inc.
'2. In any manner interfering with or obstructing, by words or actions, any person or persons working for or desiring to work for members of Complainant Mobile Steamship Association, Inc.
'3. Interfering with the operations of any member of Complainant Mobile Steamship Association, Inc. in any manner whatsoever.
'4. Picketing or interfering at or near Complainant Mobile Steamship Association, Inc. and its members' premises or premises used by Complainant Mobile Steamship Association's members in a manner calculated to intimidate Complainant Mobile Steamship Association's members' employees or anyone working in association with the Complainant Mobile Steamship Association's members, or any other person entering or leaving or attempting to enter or leave Mobile Steamship Association's members' premises, or calculated to induce any such persons not to report or apply for work at Mobile Steamship Association's members' premises, or any facility used by Mobile Steamship Association's members.
'5. Picketing directed at vessels with whom members of the Mobile Steamship Association, Inc. have contractual relations.
'6. Interfering with the contractual relations existing or to exist between the members of the Mobile Steamship Association, Inc. and companies owning and/or operating vessels calling at the Port of Mobile.'
3
The only two Courts of Appeals that appear to have addressed the question have also sustained Board jurisdiction over secondary disputes involving American employers and unions despite the fact that the primary dispute involved foreign-flag vessels. Madden v. Grain Elevator, Flour and Feed Mill Workers, International Longshoremen Assn., Local 418, 334 F.2d 1014 (CA7); Grain Elevator, Flour and Feed Mill Workers, International Longshoremen Assn., Local 418, A.F.L.-C.I.O. v. NLRB, 126 U.S.App.D.C. 219, 376 F.2d 774.
4
When Congress was considering the Taft-Hartley bill in 1947, an amendment was proposed in the Senate which would have given an injured party suffering from a secondary boycott the right to go directly into a district court and seek injunctive relief. 93 Cong.Rec. 4835. Senator Taft opposed the amendment, arguing that resistance to providing a private injunctive remedy in cases of secondary boycotts was so strong that the language of the committee bill authorizing the Board alone to obtain injunctive relief should be retained. Senator Taft proposed that private parties be given only the right to sue for damages. Id., at 4843-4844. The amendment was thereafter defeated, id., at 4847; and Senator Taft's proposal for a private-damages remedy, presently LMRA § 303, 29 U.S.C. § 187, was adopted. 93 Cong.Rec. 4874-4875.
| 910
|
419 U.S. 245
95 S.Ct. 465
42 L.Ed.2d 419
Margaret Mae CANTRELL et al., Petitioners,v.FOREST CITY PUBLISHING CO. et al.
No. 73—5520.
Argued Nov. 13, 1974.
Decided Dec. 18, 1974.
Syllabus
Petitioners, a mother and her son, brought a diversity action against respondents, a newspaper publisher and a reporter, for invasion of privacy based on a feature story in the newspaper discussing the impact upon petitioners' family of the death of the father in a bridge collapse. The story concededly contained a number of inaccuracies and false statements about the family. The District Judge struck the claims for punitive damages for lack of evidence of malice 'within the legal definition of that term,' but allowed the case to go to the jury on the 'false light' theory of invasion of privacy, after instructing the jurors that liability could be imposed only if they found that the false statements were published with knowledge of their falsity or in reckless disregard of the truth, and the jury returned a verdict for compensatory damages. The Court of Appeals reversed, holding that the District Judge should have directed a verdict for respondents, since his finding of no malice in striking the punitive damages claims was based on the definition of 'actual malice' established in New York Times Co. v. Sullivan, 376 U.S. 254, and thus was a determination that there was no evidence of the knowing falsity or reckless disregard of the truth required for liability. Held: The Court of Appeals erred in setting aside the jury's verdict. Pp. 251—254.
(a) The record discloses that the District Judge when he dismissed the punitive damages claims was not referring to the New York Times 'actual malice' standard but to the common-law standard of malice that is generally required under state tort law to support an award of punitive damages and that in a 'false light' case would focus on the defendant's attitude toward the plaintiff's privacy and not on the truth or falsity of the material published, and thus was not determining that petitioners had failed to introduce evidence of knowing falsity or reckless disregard of the truth. Pp. 251—252.
(b) Moreover, the evidence was sufficient to support jury findings that respondents had published knowing or reckless falsehoods about petitioners, particularly with respect to 'calculated falsehoods' about petitioner mother's being present when the story was being prepared, and that respondent reporter's writing of the story was within the scope of his employment at the newspaper so as to render respondent publisher vicariously liable under respondeat superior for the knowing falsehoods in the story. Pp. 252—254.
484 F.2d 150, reversed and remanded.
Harry Alan Sherman, Pittsburgh, Pa., for petitioners.
Smith Warder, Cleveland, Ohio, for respondents.
Mr. Justice STEWART delivered the opinion of the Court.
1
Margaret Cantrell and four of her minor children brought this diversity action in a Federal District Court for invasion of privacy against the Forest City Publishing Co., publisher of a Cleveland newspaper, the Plain Dealer, and against Joseph Eszterhas, a reporter formerly employed by the Plain Dealer, and Richard Conway, a Plain Dealer photographer. The Cantrells alleged that an article published in the Plain Dealer Sunday Magazine unreasonably placed their family in a false light before the public through its many inaccuracies and untruths. The District Judge struck the claims relating to punitive damages as to all the plaintiffs and dismissed the actions of three of the Cantrell children in their entirety, but allowed the case to go to the jury as to Mrs. Cantrell and her oldest son, William. The jury returned a verdict against all three of the respondents for compensatory money damages in favor of these two plaintiffs.
2
The Court of Appeals for the Sixth Circuit reversed, holding that, in the light of the First and Fourteenth Amendments, the District Judge should have granted the respondents' motion for a directed verdict as to all the Cantrells' claims. 484 F.2d 150. We granted certiorari, 418 U.S. 909, 94 S.Ct. 3202, 41 L.Ed.2d 1156.
3
* In December 1967, Margaret Cantrell's husband Melvin was killed along with 43 other people when the Silver Bridge across the Ohio River at Point Pleasant, W.Va., collapsed. The respondent Eszterhas was assigned by the Plain Dealer to cover the story of the disaster. He wrote a 'news feature' story focusing on the funeral of Melvin Cantrell and the impact of his death on the Cantrell family.
4
Five months later, after conferring with the Sunday Magazine editor of the Plain Dealer, Eszterhas and photographer Conway returned to the Point Pleasant area to write a follow-up feature. The two men went to the Cantrell residence, where Eszterhas talked with the children and Conway took 50 pictures. Mrs. Cantrell was not at home at any time during the 60 to 90 minutes that the men were at the Cantrell residence.
5
Eszterhas' story appeared as the lead feature in the August 4, 1968, edition of the Plain Dealer Sunday Magazine. The article stressed the family's abject poverty; the children's old, ill-fitting clothes and the deteriorating condition of their home were detailed in both the text and accompanying photographs. As he had done in his original, prize-winning article on the Silver Bridge disaster, Eszterhas used the Cantrell family to illustrate the impact of the bridge collapse on the lives of the people in the Point Pleasant area.
6
It is conceded that the story contained a number of inaccuracies and false statements. Most conspicuously, although Mrs. Cantrell was not present at any time during the reporter's visit to her home, Eszterhas wrote, 'Margaret Cantrell will talk neither about what happened nor about how they are doing. She wears the same mask of non-expression she wore at the funeral. She is a proud woman. Her world has changed. She says that after it happened, the people in town offered to help them out with money and they refused to take it.'1 Other significant misrepresentations were contained in details of Eszterhas' descriptions of the poverty in which the Cantrells were living and the dirty and dilapidated conditions of the Cantrell home.
7
The case went to the jury on a so-called 'false light' theory of invasion of privacy. In essence, the theory of the case was that by publishing the false feature story about the Cantrells and thereby making them the objects of pity and ridicule, the respondents damaged Mrs. Cantrell and her son William by causing them to suffer outrage, mental distress, shame, and humiliation.2
II
8
In Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456, the Court considered a similar false-light, invasion-of-privacy action. The New York Court of Appeals had interpreted New York Civil Rights Law, McKinney's Consol.Laws, c. 6, §§ 50—51 to give a 'newsworthy person' a right of action when his or her name, picture or portrait was the subject of a 'fictitious' report or article. Material and substantial falsification was the test for recovery. 385 U.S., at 384—386, 87 S.Ct. at 540—541. Under this doctrine the New York courts awarded the plaintiff James Hill compensatory damages based on his complaint that Life Magazine had falsely reported that a new Broadway play portrayed the Hill family's experience in being held hostage by three escaped convicts. This Court, guided by its decision in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, which recognized constitutional limits on a State's power to award damages for libel in actions brought by public officials, held that the constitutional protections for speech and press precluded the application of the New York statute to allow recovery for 'false reports of matters of public interest in the absence of proof that the defendant published the report with knowledge of its falsity or in reckless disregard of the truth.' 385 U.S., at 388, 87 S.Ct., at 542. Although the jury could have reasonably concluded from the evidence in the Hill case that Life had engaged in knowing falsehood or had recklessly disregarded the truth in stating in the article that 'the story re-enacted' the Hill family's experience, the Court concluded that the trial judge's instructions had not confined the jury to such a finding as a predicate for liability as required by the Constitution. Id., at 394, 87 S.Ct., at 545.
9
The District Judge in the case before us, in contrast to the trial judge in Time, Inc. v. Hill, did instruct the jury that liability could be imposed only if it concluded that the false statements in the Sunday Magazine feature article on the Cantrells had been made with knowledge of their falsity or in reckless disregard of the truth.3 No objection was made by any of the parties to this knowing-or-reckless-falsehood instruction. Consequently, this case presents no occasion to consider whether a State may constitutionally apply a more relaxed standard of liability for a publisher or broadcaster of false statements injurious to a private individual under a false-light theory of invasion of privacy, or whether the constitutional standard announced in Time, Inc. v. Hill applies to all false-light cases. Cf. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789. Rather, the sole question that we need decide is whether the Court of Appeals erred in setting aside the jury's verdict.
III
10
At the close of the petitioners' case-in-chief, the District Judge struck the demand for punitive damages. He found that Mrs. Cantrell had failed to present any evidence to support the charges that the invasion of privacy 'was done maliciously within the legal definition of that term.' The Court of Appeals interpreted this finding to be a determination by the District Judge that there was no evidence of knowing falsity or reckless disregard of the truth introduced at the trial. Having made such a determination, the Court of Appeals held that the District Judge should have granted the motion for a directed verdict for respondents as to all the Cantrells' claims. 484 F.2d, at 155.
11
The Court of Appeals appears to have assumed that the District Judge's finding of no malice 'within the legal definition of that term' was a finding based on the definition of 'actual malice' established by this Court in New York Times Co. v. Sullivan, 376 U.S., at 280, 84 S.Ct., at 726: 'with knowledge that (a defamatory statement) was false or with reckless disregard of whether it was false or not.' As so defined, of course, 'actual malice' is a term of art, created to provide a convenient shorthand expression for the standard of liability that must be established before a State may constitutionally permit public officials to recover for libel in actions brought against publishers.4 As such, it is quite different from the common-law standard of 'malice' generally required under state tort law to support an award of punitive damages. In a false-light case, common-law malice—frequently expressed in terms of either personal ill will toward the plaintiff or reckless or wanton disregard of the plaintiff's rights—would focus on the defendant's attitude toward the plaintiff's privacy, not toward the truth or falsity of the material published. See Time, Inc. v. Hill, 385 U.S., at 396 n. 12, 87 S.Ct., at 546 n. 12. See generally W. Prosser, Law of Torts 9—10 (4th ed.).
12
Although the verbal record of the District Court proceedings is not entirely unambiguous, the conclusion is inescapable that the District Judge was referring to the common-law standard of malice rather than to the New York Times 'actual malice' standard when he dismissed the punitive damages claims. For at the same time that he dismissed the demands for punitive damages, the District Judge refused to grant the respondents' motion for directed verdicts as to Mrs. Cantrell's and William's claims for compensatory damages. And, as his instructions to the jury made clear, the District Judge was fully aware that the Time, Inc. v. Hill meaning of the New York Times 'actual malice' standard had to be satisfied for the Cantrells to recover actual damages. Thus, the only way to harmonize these two virtually simultaneous rulings by the District Judge is to conclude, contrary to the decision of the Court of Appeals, that in dismissing the punitive damages claims he was not determining that Mrs. Cantrell had failed to introduce any evidence of knowing falsity or reckless disregard of the truth. This conclusion is further fortified by the District Judge's subsequent denial of the respondents' motion for judgment n.o.v. and alternative motion for a new trial.
13
Moreover, the District Judge was clearly correct in believing that the evidence introduced at trial was sufficient to support a jury finding that the respondents Joseph Eszterhas and Forest City Publishing Co. had published knowing or reckless falsehoods about the Cantrells.5 There was no dispute during the trial that Eszterhas, who did not testify, must have known that a number of the statements in the feature story were untrue. In particular, his article plainly implied that Mrs. Cantrell had been present during his visit to her home and that Eszterhas had observed her 'wear(ing) the same mask of nonexpression she wore (at her husband's) funeral.' These were 'calculated falsehoods,' and the jury was plainly justified in finding that Eszterhas had portrayed the Cantrells in a false light through knowing or reckless untruth.
14
The Court of Appeals concluded that there was no evidence that Forest City Publishing Co. had knowledge of any of the inaccuracies contained in Eszterhas' article. However, these was sufficient evidence for the jury to find that Eszterhas' writing of the feature was within the scope of his employment at the Plain Dealer and that Forest City Publishing Co. was therefore liable under traditional doctrines of respondeat superior.6 Although Eszterhas was not regularly assigned by the Plain Dealer to write for the Sunday Magazine, the editor of the magazine testified that as a staff writer for the Plain Dealer, Eszterhas frequently suggested stories he would like to write for the magazine. When Eszterhas suggested the follow-up article on the Silver Bridge disaster, the editor approved the idea and told Eszterhas the magazine would publish the feature if it was good. From this evidence, the jury could reasonably conclude that Forest City Publishing Co., publisher of the Plain Dealer, should be held vicariously liable for the damage caused by the knowing falsehoods contained in Eszterhas' story.
15
For the foregoing reasons, the judgment of the Court of Appeals is reversed and the case is remanded to that court with directions to enter a judgment affirming the judgment of the District Court as to the respondents Forest City Publishing Co. and Joseph Eszterhas.
16
It is so ordered.
17
Reversed and remanded.
18
Mr. Justice DOUGLAS, dissenting.
19
I adhere to the views which I expressed in Time, Inc. v. Hill, 385 U.S. 374, 401—402, 87 S.Ct. 534, 549, 17 L.Ed.2d 456 (1967), and to those of Mr. Justice Black in which I concurred, id., at 398—401, 87 S.Ct., at 547—549. Freedom of the press is 'abridged' in violation of the First and Fourteenth Amendments by what we do today. This line of cases, which of course includes New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), seems to me to place First Amendment rights of the press at a midway point similar to what our ill-fated Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), did to the right to counsel. The press will be 'free' in the First Amendment sense when the judge-made qualifications of that freedom are withdrawn and the substance of the First Amendment restored to what I believe was the purpose of its enactment.
20
A bridge accident catapulted the Cantrells into the public eye and their disaster became newsworthy. To make the First Amendment freedom to report the news turn on subtle differences between common-law malice and actual malice is to stand the Amendment on its head. Those who write the current news seldom have the objective, dispassionate point of view—or the time—of scientific analysts. They deal in fast-moving events and the need for 'spot' reporting. The jury under today's formula sits as a censor with broad powers—not to impose a prior restraint, but to lay heavy damages on the press. The press is 'free' only if the jury is sufficiently disenchanted with the Cantrells to let the press be free of this damages claim. That regime is thought by some to be a way of supervising the press which is better than not supervising it at all. But the installation of the Court's regime would require a constitutional amendment. Whatever might be the ultimate reach of the doctrine Mr. Justice Black and I have embraced, it seems clear that in matters of public import such as the present news reporting, there must be freedom from damages lest the press be frightened into playing a more ignoble role than the Framers visualized.
21
I would affirm the judgment of the Court of Appeals.
1
Eszterhas, legacy of the Silver Bridge, the Plain Dealer Sunday Magazine, Aug. 4, 1968, p. 32, col. 1.
2
Although this is a diversity action based on state tort law, there is remarkably little discussion of the relevant Ohio or West Virginia law by the District Court, the Court of Appeals, and counsel for the parties. It is clear, however, that both Ohio and West Virginia recognize a legally protected interest in privacy. E.g., Housh v. Peth, 165 Ohio St. 35, 133 N.E.2d 340; Roach v. Harper, 143 W.Va. 869, 105 S.E.2d 564; Sutherland v. Kroger Co., 144 W.Va. 673, 110 S.E.2d 716. Publicity that places the plaintiff in a false light in the public eye is generally recognized as one of the several distinct kinds of invasions actionable under the privacy rubric. See Prosser, Privacy, 48 Calif.L.Rev. 383, 398 401; Restatement (Second) of Torts § 652E (Tent.Draft No. 13).
3
The District Judge instructed the jury in part:
'(T)he constitutional protection for speech and press preclude(s) redress for false reports of matters of public interest in the absence of proof that the defendants published the report with knowledge of its falsity or in reckless disregard of the truth.
'Thus, in this case the burden of proof is upon the plaintiffs to prove by a preponderance of the evidence their assertions of an invasion of privacy, the elements of which are:
'(1) An unwarranted and/or wrongful intrusion by the defendants into their private or personal affairs with which the public had no legitimate concern.
'(2) Publishing a report or article about plaintiff with knowledge of its falsity or in reckless disregard of the truth.
'(3) Defendants' acts of publishing a report or article about plaintiffs with knowledge of its falsity or in reckless disregard of the truth caused plaintiffs injury as individuals of ordinary sensibilities and damage in the form of outrage or mental suffering, shame or humiliation.
'Thus, if it be your conclusion and determination that plaintiffs have failed to prove by a preponderance of the evidence that defendants invaded the (plaintiffs') privacy by publishing a report or article about them with knowledge of its falsity or in reckless disregard of the truth, you need not deliberate further and you will return a verdict in favor of the defendants.'
The District Judge also charged the jury:
'An act is knowingly done if done voluntarily and intentionally and not because of mistake or accident or other innocent reason.
'Recklessness implies a higher degree of culpability than negligence. Recklessly means wantonly, with indifference to consequence.'
4
In Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456, the Court did not employ this term of art. Instead, the Court repeated the actual standard of knowing or reckless falsehood at every relevant point. See, e.g., id., at 388, 390, 394, 87 S.Ct. at 542, 543, 545.
5
Although we conclude that the jury verdicts should have been sustained as to Eszterhas and Forest City Publishing Co., we agree with the Court of Appeals' conclusion that there was insufficient evidence to support the jury's verdict against the photographer Conway. Conway testified that the photographs he took were fair and accurate depictions of the people and scenes he found at the Cantrell residence. This testimony was not contradicted by any other evidence introduced at the trial. Nor was there any evidence that Conway was in any way responsible for the inaccuracies and misstatements contained in the text of the article written by Eszterhas. In short, Conway simply was not shown to have participated in portraying the Cantrells in a false light.
6
The District Judge instructed the jury:
'Any act of an employee or agent, to become the act of the corporation, must be performed by the employee while acting within the scope of his employment.
'The Court charges you as a matter of law that before any acts or knowledge of Joseph Eszterhas or Richard T. Conway may be imputed to the defendant, Forest City Publishing Company, the plaintiffs must prove by a preponderance of the evidence that defendant, Forest City Publishing Company, had actual knowledge of those acts and information or that Conway and Eszterhas were acting within the scope of their employment when they performed the acts or acquired the information.'
None of the parties objected to this instruction.
| 23
|
419 U.S. 375
95 S.Ct. 674
42 L.Ed.2d 679
State of MISSISSIPPI, plaintiff,v.State of ARKANSAS.
No. 48, Orig.
Supreme Court of the United States
December 23, 1974
1
On Bill of Complaint.
Amended Decree
2
It is ordered, adjudged, and decreed as follows:
3
1. Luna Bar, depicted in Mississippi's Exhibits 1 and 2, constituting, respectively, Appendix A and part of Appendix B to the Special Master's report, and appended hereto and hereby made a part of this decree, came into existence by accretion to Carter Point and is, and was, a part of the State of Mississippi.
4
2. The boundary line between the State of Mississippi and the State of Arkansas in the areas between the upstream and the downstream ends of Tarpley Cut-off is as follows:
5
'That part of the abandoned bed of that Mississippi River between the upstream end of the Tarpley Cut-off and the downstream end of Tarpley Cut-off as defined and identified in Mississippi's said Exhibit 2, being a plat prepared by Austin B. Smith. The above described State boundary line being more particularly described as follows, to-wit:
6
'Beginning at the head of Tarpley Cut-off Channel at Point P-36 as shown on said Smith's Mississippi Exhibit P-2 at Latitude 33x26'24" and Longitude 91x06'46";
7
'thence west to Point P-1, Lat. 33x26'25" and Long. 91x07'33"; 'thence southwesterly to Point P-2, Lat. 33x26'0.0" and Long. 91x07'56";
8
'thence southwesterly to Point P-3, Lat. 33x25'47" and Long. 91x08'17";
9
'thence southwesterly to Point P-4, Lat. 33x25'40" and Long. 91x08'42";
10
'thence southwesterly to Point P-5, Lat. 33x25'36" and Long. 91x09'0.0";
11
'thence southwesterly to Point P-6, Lat. 33x25'30" and Long. 91x09'29";
12
'thence southwesterly to Point P-7, Lat. 33x25'25" and Long. 91x10'0.0";
13
'thence southwesterly to Point P-8, Lat. 33x25'21" and Long. 91x10'28";
14
'thence southwesterly to Point P-9, Lat. 33x25'16" and Long. 91x11'0.0";
15
'thence southwesterly to Point P-10, Lat. 33x25'10" and Long. 91x11'29";
16
'thence southwesterly to Point P-11, Lat. 33x25'06" and Long. 91x11'46";
17
'thence southwesterly to Point P-12, Lat. 33x25'00" and Long. 91x12'04";
18
'thence southwesterly to Point P-13, Lat. 33x24'52" and Long. 91x12'17";
19
'thence southwesterly to Point P-14, Lat. 33x24'46" and Long. 91x12'23";
20
'thence southward to Point P-15, Lat. 33x24'37" and Long. 91x12'28";
21
'thence southward to Point P-16, Lat. 33x24'23" and Long. 91x12'32";
22
'thence southward to Point P-17, Lat. 33x24'11.5" and Long. 91x12'30";
23
'thence southeasterly to Point P-18, Lat. 33x24'0.0" and Long. 91x12'21";
24
'thence southeasterly to Point P-19, Lat. 33x23'44.5" and Long. 91x12'0.0"; 'thence southeasterly to Point P-20, Lat. 33x23'37" and Long. 91x11'49.5";
25
'thence southeasterly to Point P-21, Lat. 33x23'06" and Long. 91x11'0.0";
26
'thence southeasterly to Point P-22, Lat. 33x23'0.0" and Long. 91x10'48";
27
'thence southeasterly to Point P-23, Lat. 33x22'54" and Long. 91x10'34";
28
'thence southeasterly to Point P-24, lat. 33x22'49" and Long. 91x10'18";
29
'thence eastward to Point P-25, Lat. 33x22'48" and Long. 91x10'10";
30
'thence eastward to Point P-26, Lat. 33x22'47" and Long. 91x10'0.0";
31
'thence eastward to Point P-27, Lat. 33x22'43.5" and Long. 91x09'14.5";
32
'thence eastward to Point P-28, Lat. 33x22'44" and Long. 91x09'0.0";
33
'thence northeasterly to Point P-29, Lat. 33x22'46.5" and Long. 91x08'45";
34
'thence northeasterly to Point P-30, Lat. 33x22'53" and Long. 91x08'24";
35
'thence northeasterly to Point P-31, Lat. 33x23'0.0" and Long. 91x08'04.5";
36
'thence northeasterly to Point P-32, Lat. 33x23'01.5" and Long. 91x08'0.0";
37
'thence northeasterly to Point P-33, Lat. 33x23'09.5" and Long.
38
91x07'40";
39
'thence northeasterly to Point P-34, Lat. 33x23'13" and Long. 91x07'31";
40
'thence northeasterly to Point P-35, Lat. 33x23'25" and Long. 91x06'39" at the foot of Tarpley Cut-off Channel';
41
3. The costs of this suit, including the expenses of the Special Master and the printing of his report, have been paid out of the fund made up of equal contributions by the State of Mississippi and the State of Arkansas and said fund has been sufficient to defray all said expenses to the date of the issuance of the report. Any costs and expenses that may be incurred beyond the amount so contributed by the respective litigants shall be borne by the State of Arkansas.
| 1011
|
419 U.S. 281
95 S.Ct. 438
42 L.Ed.2d 447
BOWMAN TRANSPORTATION, INC., Appellant,v.ARKANSAS-BEST FREIGHT SYSTEM, INC., et al. JOHNSON MOTOR LINES, INC., Appellant, v. ARKANSAS-BEST FREIGHT SYSTEM, INC., et al. RED BALL MOTOR FREIGHT, INC., Appellant, v. ARKANSAS-BEST FREIGHT SYSTEM, INC., et al. LORCH-WESTWAY CORPORATION et al., Appellants, v. ARKANSAS-BEST FREIGHT SYSTEM, INC., et al. UNITED STATES and Interstate Commerce Commission, Appellants, v. ARKANSAS-BEST FREIGHT SYSTEM, INC., et al.
Nos. 73—1055, 73—1069 and 73—1070 to 73—1072.
Argued Nov. 20, 1974.
Decided Dec. 23, 1974.
Rehearing Denied Feb. 24, 1975.
See 420 U.S. 956, 95 S.Ct. 1340, 1341.
Syllabus
In 1969 hearing examiners for the Interstate Commerce Commission (ICC), following hearings in 1966 and 1967 and the subsequent filing of extensive briefs, rejected appellant motor carriers' applications for certificates of public convenience and necessity to transport general commodities between specified points in the Southwest and Southeast. In 1971 the ICC, over the opposition of appellee competing motor carriers, authorized the issuance of the certificates. Appellees then brought action in the District Court to set aside the ICC's order. The District Court refused to enforce the order on the ground that the ICC had acted arbitrarily in refusing to credit certain evidence introduced by appellees. Held:
1. The District Court erred in refusing to enforce the ICC's order. Pp. 284—294.
(a) Under the 'arbitrary and capricious' standard the scope of review is a narrow one whereby a reviewing court must 'consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.' Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136. Pp. 285—286.
(b) The ICC's observation that appellees' exhibits as to the acceptability of their existing service covered periods subsequent to the ICC's notice of hearing supported its refusal to credit this evidence. The ICC was entitled to regard such exhibits as nonrepresentative of the usual service, to reason that the shortcomings were greater than the exhibits showed, and to conclude that service would be improved by granting the applications. Pp. 286 289.
(c) There was a rational basis for the ICC's attributing little significance to appellees' exhibits showing appellants' transit times over other routes. The question was whether service on the routes at issue would be enhanced by new entry and, as to this, performance by prospective entrants on other routes was of limited relevance. The ICC erred in not attributing the same qualification to appellants' transit time exhibits, but its finding that service would be improved by new entry was supported by other evidence. Pp. 289—292.
(d) The ICC's conclusion that consumer benefits of new entry outweighed any adverse impact upon the existing carriers reflects the kind of judgment that is entrusted to it, namely, the power to weigh the competing interests and arrive at a balance that is deemed 'the public convenience and necessity.' Pp. 292—294.
2. The lapse of time between the conclusion of evidentiary hearings and the ultimate agency decision in this case does not justify a reviewing court's requiring that the record be reopened. Pp. 294—296.
3. The ICC was entitled to take an approach, divergent from that of its examiners, favoring added competition among carriers. Pp. 297—299.
4. Whether or not the certificate granted appellant Bowman Transportation Co. conformed to the authority set forth in its application, an issue not briefed or argued in this Court, should be considered by the District Court on remand. Pp. 299—300.
364 F.Supp. 1239, reversed and remanded.
William L. Patton, Jr., Little Rock, Ark, for appellants in No. 73—1072.
Charles S. Rhyne, Washington, D.C., for appellants in Nos. 73 1055, 73—1069, 73—1070, and 73—1071.
Phineas Stevens, Jackson, Miss., for appellees in all cases.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
This is a direct appeal from a final judgment of a three-judge District Court, 28 U.S.C. §§ 1253, 2101, invalidating an order of the Interstate Commerce Commission. Ten applications of motor carriers to conduct general commodities operations between points in the Southwest and Southeast were consolidated in one proceeding. Three additional applicants were allowed to intervene. The hearing examiners, after extensive hearings, rejected each application. The Commission granted three of the applications of appellant carriers. Appellees, competing carriers, brought an action in the District Court, 28 U.S.C. § 1336, to suspend, enjoin, and annul that portion of the order of the Commission that authorizes issuance of certificates of public convenience and necessity to Red Ball, Bowman, and Johnson. The District Court refused to enforce the Commission's order because its findings and conclusions were arbitrary, capricious, and without rational basis within the meaning of the Administrative Procedure Act, 5 U.S.C. § 706, and likewise refused to remand the case believing that no useful purpose would be served, 364 F.Supp. 1239, 1264.1
2
The Administrative Procedure Act in 5 U.S.C. § 706 provides that:
3
'The reviewing court shall . . . (2) hold unlawful and set aside agency action, findings, and conclusions found to be—
4
'(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law (or) . . .
5
'(E) unsupported by substantial evidence . . ..'
6
These two provisions of 5 U.S.C. § 706(2) (2) are part of six which are 'separate standards.' See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 413, 91 S.Ct. 814, 822, 28 L.Ed.2d 136, 151 (1971). The District Court properly concluded that, though an agency's finding may be supported by substantial evidence, based on the definition in Universal Camera Corp. v. NLRB. 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951),2 it may nonetheless reflect arbitrary and capricious action. There seems, however, to be agreement that the findings and conclusions of the Commission are supported by substantial evidence. The question remains whether, as the District Court held, the Commission's action was 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law' as provided in 5 U.S.C. § 706(2)(A). We disagree with the District Court and accordingly reverse its judgment and remand the cases for consideration of one issue not reached by the District Court or by this Court.
7
* The Motor Carrier provisions of the Interstate Commerce Act, 49 Stat. 551, 49 U.S.C. § 307, empower the Commission to grant an application for a certificate if it finds (1) that the applicant is 'fit, willing, and able properly to perform the service proposed'; and (2) that the service proposed 'is or will be required by the present or future public convenience and necessity.' The Commission made both findings, relying upon the applicants' general service record in support of a finding of fitness, and upon expressions of customer dissatisfaction with the existing service in support of its conclusion that the service proposed was consistent with the public convenience and necessity. The competing appellee carriers made presentations designed to show that their existing service was satisfactory and that the applicants would not offer measurably superior performance. The District Court concluded that the Commission had acted arbitrarily in its treatment of the presentations made by the protesting carriers. While the Commission had acknowledged the appellees' evidence, its reasons for refusing to credit it would not, in the District Court's view, withstand scrutiny, making its action tantamount to an arbitrary refusal to consider matters in the record.
8
Under the 'arbitrary and capricious' standard the scope of review is a narrow one. A reviewing court must 'consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. . . . Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.' Citizens to Preserve Overton Park v. Volpe, supra, 401 U.S. at 416, 91 S.Ct. at 824. The agency must articulate a 'rational connection between the facts found and the choice made.' Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 246, 9 L.Ed.2d 207 (1962). While we may not supply a reasoned basis for the agency's action that the agency itself has not given, SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947), we will uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned. Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 595, 65 S.Ct. 829, 836, 89 L.Ed. 1206 (1945). Having summarized the appropriate scope of review, we proceed to consider the District Court's objections seriatim.
A. Evidence as to Existing Service
9
The applicant carriers presented exhibits showing the time in transit of selected shipments that had been consigned to appellee carriers by particular shippers during a designated study period. As the Commission acknowledged, the selection of particular shipments from those occurring during the study period had been made with an eye toward demonstrating service inadequacies.3 These 'worst case' studies figured in the Commission's finding that service would be improved by the entry of new carriers to the routes at issue.
10
The appellee carriers offered studies of their own. These covered the same period and the same shippers as the applicants' presentations, but whereas the applicants had selected particular shipments to emphasize inadequacies, the appellee carriers included in their presentations all of the shipments consigned during the study period. These exhibits, argued the protesting carriers, placed the incidents cited by the applicants in perspective and demonstrated that the existing service was generally acceptable. The Commission acknowledged the appellees' presentations but concluded that they offered an inadequate rebuttal to the applicants' exhibits because (1) they 'relate to short periods of time or cover traffic handled for specified shippers'; and (2) the studies represented service provided by appellees after the Commission had designated the applications for hearing. Herrin Transportation Co., 114 M.C.C. 571, 599 (1971). The District Court ruled that the Commission had applied inconsistent standards in reviewing the evidence of the parties, since the appellees' exhibits were based upon the same study periods and the same shippers as the applicants' exhibits. 364 F.Supp., at 1259—1260.
11
We agree with the District Court that the first reason assigned by the Commission—that the appellees' exhibits were based only upon short periods and particular shippers—failed to distinguish the presentations of applicants and opponents. To counter the applicants' presentations, the protesting carriers chose the identical study periods and shippers but expanded the presentation to show all the shipments consigned. Since the protesters confined themselves to the periods and shippers the applicants had selected, there was no basis for an inference that the former had chosen so as to make the exhibits unrepresentative in their favor.
12
The Commission's second reason, however—that the appellees' studies covered periods subsequent to a notice of hearing—provides support for the Commission's assessment of the evidence. The Commission recognized that protesting carriers might have been spurred to improve their service by the threat of competition raised by the designation of applicants for hearing. Therefore, reasoned the Commission, the protesting carriers' performance subsequent to the notice of hearing might be superior to the service they normally offered, and their exhibits, covering those periods, had to be read in light of that possibility. But the Commission was not precluded from relying upon the demonstrated shortcomings of the protesters' service during that period, for the incentive effect the Commission indentified would have, if anything, distorted the performance studies in the protesters' favor.
13
The issue before the Commission was not whether the appellees' service met some absolute standard of performance but whether the 'public convenience and necessity' would be served by the entry of new carriers into the markets served by appellees. United States v. Dixie Highway Express, 389 U.S. 409, 411—412, 88 S.Ct. 539, 540—541, 19 L.Ed.2d 639 (1967). Even if the Commission had accepted appellees' exhibits at face value, it could still have concluded that the deficiencies were sufficient to justify the admission of additional carriers. Certainly the Commission was entitled to regard the appellees' studies as possibly nonrepresentative of the usual service afforded,4 to reason that the short-comings were probably greater than these studies showed, and to conclude that service would be improved by granting the applications.
14
The applicants supported their service proposals with exhibits showing transit times over comparable distances on other routes. The appellees once again pointed out that the applicants had been selective and offered transit times on different routes served by the applicants that were substantially longer than those applicants proposed to provide on the routes at issue. Appellees thus argued that the applicants could not reasonably be expected to live up to their service proposals. In addition, the appellees cited service restrictions that the applicants practiced on other routes—refusal to make scheduled pickup of merchandise, refusal to handle shipments less than a certain weight, refusal to transport goods to certain destinations, and the like.
15
The Commission attributed little significance to the appellees' rebuttal. With respect to transit times, the Commission noted that different highway conditions might make transit times over identical distances totally incomparable. 114 M.C.C., at 611. The District Court held that the Commission had acted arbitrarily in so treating the evidence, for it had apparently relied on the applicants' transit-time evidence (id., at 586, 600) to support its finding of fitness. 364 F.Supp., at 1260—1261. Similarly, the District Court viewed as arbitrary the Commission's failure to mention in its opinion the service restrictions by applicants that appellees' had cited, since the Commission had relied upon identical restrictions practiced by appellees to support its finding that existing service was not satisfactory. 114 M.C.C., at 600.
16
The Commission's treatment of the evidence of the applicants' performance on other routes is not a paragon of clarity. Had the Commission responded in a more considered manner to the evidence appellees presented, review would have been greatly facilitated, and further review by this Court perhaps avoided entirely. But we can discern in the Commission's opinion a rational basis for its treatment of the evidence, and the 'arbitrary and capricious' test does not require more. The question before the Commission was whether service on the routes at issue would be enhanced by permitting new entry, and as to this the performance by prospective entrants on new routes was of limited relevance. The Commission noted with respect to transit times that different highway conditions might make experience there a poor indication of the times applicants could provide on the routes they sought to enter. More generally, the applicants' performance on other routes might, because of market conditions peculiar to that route (e.g., the nature of demand for service, or the number of competing carriers), offer an inaccurate basis for predicting what the applicants would do if admitted to the routes they sought in competition with the carriers already there. A carrier performing lethargically on a route where it was the sole provider of motor transportation, for example, could ill afford to continue the same practice where the situation was more competitive.5
17
The particular features of the applicants' performance elsewhere that the appellees cited were not shown by the Commission to be explainable by special market conditions on the routes where they occurred. It is said that the Commission could conclude that the evidence of performance elsewhere would be unlikely to prove dispositive, and that accordingly, absent some compelling demonstration by a proponent of a 'performance elsewhere' study that it offered important predictive value, the Commission should disregard such evidence.6 Of course, evidence of especially egregious performance elsewhere might have been viewed as an exception; a general assumption that competition would force new entrants to exceed the pre-existing quality of service in an effort to attract business might have to yield in the face of an applicant whose shortcomings elsewhere were many and flagrant. But no such evidence was offered here, and none of the applicants was so characterized. Indeed the examiners found that 'in the main the carriers participating in these proceedings are substantial and responsible carriers' disputed this finding. We do not find disputed this finding. We do not find the Commission's treatment of the evidence arbitrary.
II
18
Having found that the admission of the applicant carriers to the routes they sought would produce benefits to the consumers served, the Commission proceeded to consider the effect of new entry upon the appellees. While the Commission acknowledged that competition from new entrants might cause at least short-run business losses for existing carriers, it found that, with the exception of one carrier, none would be 'seriously adversely affected.' Further, the Commission concluded that in any event, 'the gains to be derived by the shipping public in general far outweigh any adverse effect this carrier or any other protestant may experience.' 114 M.C.C., at 611.
19
The District Court thought the Commission's treatment unsupportable, in view of the findings by the hearing examiners as to adverse impacts if the applications were granted. 364 F.Supp., at 1262—1263. Insofar as the District Court's comments express the view that the Commission failed to consider the examiners' findings or the appellees' interests, the record shows otherwise. The Commission stated in its opinion that 'grants of authority will subject some of protestants' traffic to the possibility of diversion,' but went on to make findings that there would be no 'serious adverse impact.' 114 M.C.C., at 610—611.
20
The evidence that moved the examiners to a contrary view consisted of testimony by appellees' witnesses about the volume of shipments for which new entrants would compete if allowed to enter the market. The testimony thus presented the carriers' maximum potential exposure, leaving considerable leeway for predicting what was likely if applications were granted. Cf. Market Street R. Co. v. Railroad Comm'n, 324 U.S. 548, 65 S.Ct. 770, 89 L.Ed. 1171 (1945). The examiners emphasized the magnitude of potential harm; the Commission took a more optimistic view. We see nothing arbitrary in this posture. That a carrier's entire business will be subject to competition hardly compels the conclusion that its operations will show no profit. It was rational for the Commission so to conclude that the new entrant may be expected not to swallow up existing carriers, especially if the latter make efforts to attract business. Moreover, the testimony offered by appellees' witnesses gave the carriers' exposure to competition if every new application sought by appellees were granted.7 Thus, the examiners were reporting upon potential diversions of traffic under conditions that were never realized. Since the Commission granted only three of the 10 pending applications, much of the testimony on this matter had to be regarded with qualification, and some of it disregarded entirely.8
21
The Commission's conclusion that consumer benefits outweighed any adverse impact upon the existing carriers reflects the kind of judgment that is entrusted to it, a power to weigh the competing interests and arrive at a balance that is deemed 'the public convenience and necessity.' United States v. Pierce Auto Lines, 327 U.S. 515, 535—536, 66 S.Ct. 687, 697—698, 90 L.Ed. 821 (1946). If the Commission has 'drawn out and crystallized these competing interests (and) attempted to judge them with as much delicacy as the prospective nature of the inquiry permits,' ICC v. J—T Transport Co., 368 U.S. 81, 89, 82 S.Ct. 204, 209, 7 L.Ed.2d 147 (1961), we can require no more. Here the Commission identified the competing interests. We cannot say that the balance it struck was arbitrary or contrary to law.
III
22
The District Court expressed concern about the considerable lapse of time between the conclusion of evidentiary hearings and the Commission's decision. 364 F.Supp., at 1261—1262. While it is unclear whether this was an independent ground for setting aside the Commission's order, we deem it advisable to deal directly with the suggestion that the record has grown too stale to support the order.
23
Hearings on the applications in these cases began in 1966 and concluded in 1967. Thereafter, the parties prepared extensive briefs for the examiners, who rendered their decision in November 1969. The decision of the Commission was handed down on December 30, 1971. Thus, the evidentiary material pertained to service conditions which were dated by five years at the time the Commission rendered its decision.
24
We appreciate the difficulties that arise when the lapse between hearing and ultimate decision is so long. Undoubtedly economic changes dated the 1966 studies that the parties, both applicants and appellees, had placed in the record. Nevertheless, we have always been loath to require that factfinding begin anew merely because of delay in proceedings of such magnitude and complexity. To repeat what was said in ICC v. Jersey City, 322 U.S. 503, 514—515, 64 S.Ct. 1129, 1134, 88 L.Ed. 1420 (1944):
25
'Administrative consideration of evidence—particularly where the evidence is taken by an examiner, his report submitted to the parties, and a hearing held on their exceptions to it—always creates a gap between the time the record is closed and the time the administrative decision is promulgated. This is especially true if the issues are difficult, the evidence intricate, and the consideration of the case deliberate and careful. If upon the coming down of the order litigants might demand rehearings as a matter of law because some new circumstance has arisen, some new trend has been observed, or some new fact discovered, there would be little hope that the administrative process could ever be consummated in an order the would not be subject to reopening. It has been almost a rule of necessity that rehearings were not matters of right, but were pleas to discretion. And likewise it has been considered that the discretion to be invoked was that of the body making the order, and not that of a reviewing body.'
26
Only in Atchison, T. & F.R. Co. v. United States, 284 U.S. 248, 52 S.Ct. 146, 76 L.Ed. 273 (1932), did we remand a case for reopening of evidentiary proceedings; there the Commission's refusal to reopen in light of the economic metamorphosis brought on by the Great Depression led the Court to find an abuse of discretion. The same exceptional circumstances that compelled that disposition, however, have been found lacking in more recent cases. See United States v. Northern Pacific R. Co., 288 U.S. 490, 53 S.Ct. 406, 77 L.Ed. 914 (1933); Illinois Commerce Comm'n v. United States, 292 U.S. 474, 54 S.Ct. 783, 78 L.Ed. 1371 (1934); St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 56 S.Ct. 720, 80 L.Ed. 1033 (1936); ICC v. Jersey City, supra; United States v. Pierce Auto Lines, supra; Northern Lines Merger Cases, 396 U.S. 491, 90 S.Ct. 708, 24 L.Ed.2d 700 (1970). Illinois Commerce Comm'n v. United States, supra, is of particular relevance, for there the Court refused to compel the Interstate Commerce Commission to reopen for the inclusion of new economic studies a record already closed for a comparable period. We believe appellees failed to meet the heavy burden thrust upon them by our cases.9
27
The protracted character of the proceedings resulted, not from bureaucratic inertia, but from the number and complexity of the issues and from the agency procedures that extended to the parties, in an effort to insure fairness in appearance as well as reality, and an opportunity to comment upon the proceedings at every stage. More than 900 witnesses testified in the original hearings, which consumed 150 days. At the conclusion the parties submitted briefs requiring seven months to prepare. The examiners' decision did not issue until nearly two years later. It is doubtful that the Commission could have made the record more current by judicial notice alone; while live testimony might not have been required, the Commission would at least have had to entertain evidence in affidavit form. Yet there would have been little assurance that at the conclusion of such a reopening, and the time required to digest the new material, the record would not again have become 'stale.' Accordingly, we conclude that there is sound basis for adhering to our practice of declining to require reopening of the record, except in the most extraordinary circumstances.
IV
28
We conclude by addressing a concern voiced by the District Court, that the Commission's decision
29
'indicates a predilection to grant these particular applications, followed by a strained attempt to marshal findings to support such conclusion.' 364 F.Supp., at 1264.
30
We disagree with the District Court insofar as its remarks charge the Commission with prejudging the issue and deciding without giving consideration to the evidence. But we think the approach adopted by the Commission does differ from that taken by the examiners in significant respects that are important to identify.
31
The examiners viewed the evidence against a backdrop of assumptions about the relationship between consumer needs and carrier responsibilities. The examiners ruled, for example, that all shippers were not entitled to 'single-line service' and that the shippers' difficulties were attributable, in part, to lack of diligence. The examiners put it that
32
'(n)ormally existing carriers should have an opportunity . . . to transport all of the traffic they can handle adequately and efficiently in the territory they are authorized to serve without the competition of new operations.'
33
And to the extent that service inadequacies were demonstrated, the examiners viewed complaints to force compliance with certificates held by existing carriers as a preferred mode of relief.
34
The Commission's approach, on the other hand, was more congenial to new entry and the resulting competition. This is the Commission's prerogative in carrying out its mandate to insure 'safe, adequate, economical, and efficient service,' National Transportation Policy, preceding 49 U.S.C. § 1. The Commission was not compelled to adopt the same approach as the examiners. It could conclude that the benefits of competitive service to consumers might out-weigh the discomforts existing certificated carriers could feel as a result of new entry.10 Our decisions have dispelled any notion that the Commission's primary obligation is the protection of firms holding existing certificates. ICC v. J—T Transport Co., supra, disapproved the proposition that shippers must take their grievances through complaint procedures before improvement through new entry is permitted. 368 U.S., at 91, 82 S.Ct. 204. And in United States v. Dixie Highway Express, 389 U.S. 409, 88 S.Ct. 539, 19 L.Ed.2d 639 (1967), we rejected the suggestion by a reviewing court that existing carriers have 'a property right' to an opportunity to make amends before new certificates issue. Id., at 411, 88 S.Ct. 539.
35
A policy in favor of competition embodied in the laws has application in a variety of economic affairs. Even where Congress has chosen Government regulation as the primary device for protecting the public interest, a policy of facilitating competitive market structure and performance is entitled to consideration. McLean Trucking Co. v. United States, 321 U.S. 67, 64 S.Ct., 370, 88 L.Ed. 544 (1944); FMC v. Svenska Amerika Linien, 390 U.S. 238, 88 S.Ct. 1005, 19 L.Ed.2d 1071 (1968); Gulf States Utilities Co. v. FPC, 411 U.S. 747, 93 S.Ct. 1870, 36 L.Ed.2d 635 (1973); Denver & R.G.W.R. Co. v. United States, 387 U.S. 485, 87 S.Ct. 1754, 18 L.Ed.2d 905 (1967). The Commission, of course, is entitled to conclude that preservation of a competitive structure in a given case is overridden by other interests, United States v. Drum, 368 U.S. 370, 374—375, 82 S.Ct. 408, 410, 7 L.Ed.2d 360 (1962), but where, as here, the Commission concludes that competition 'aids in the attainment of the objectives of the national transportation policy,' McLean Trucking Co. v. United States, supra, 85—86, 64 S.Ct., at 380, we have no basis for disturbing the Commission's accommodation.
V
36
Our opinion disposes of appellees' objections to the Commission's order insofar as it granted the applications of Johnson and Red Ball.11 As to appellant Bowman, however, an issue remains. In granting Bowman a certificate the Commission noted that the authority sought by Bowman exceeded that set forth in Bowman's application. The 'excess' was granted, subject to a condition precedent of publication in the Federal Register of Bowman's request for the excess authority. Various appellees filed objections to the augmented authority sought by Bowman, which the Commission overruled. Appellees challenged the Commission's procedure in the District Court on a variety of grounds, and though the District Court indicated disapproval of the Commission's action, the court did not have to rule on the merits of appellees' objections since it set aside the Commission's approval of all the applications.
37
While we have on occasion decided residual issues in the interest of an expeditious conclusion of protracted litigation, see Consolo v. FMC, 383 U.S. 607, 621, 86 S.Ct. 1018, 1027, 16 L.Ed.2d 131 (1966), we believe that the issue of conformity of the Bowman certificate to its application is one for the District Court. The issue was not briefed or argued here, owning to the limitations set forth in our order noting probable jurisdiction. And while the District Court spoke of the Commission's action in this regard, we do not construe its expressions as a final ruling, since they were unnecessary to the District Court's disposition of the case. Accordingly, the issue remains open on remand.
38
We hasten to add, however, that our remand provides no basis for depriving Bowman of authority conferred by the Commission that was within its original application.
39
Reversed and remanded.
1
The hearings lasted over 18 months; this transcript covers 23,423 pages; there are 1,989 exhibits; a total of 950 witnesses testified on behalf of 10 applicants; 66 rail and motor carriers entered appearances in opposition to the applications; 48 of the protestants offered evidence through 62 witnesses and numerous exhibits.
2
'The substantiality of evidence must take into account whatever in the record fairly detracts from its weight.' 340 U.S., at 488, 71 S.Ct. at 464. And see 4 K. Davis, Administrative Law Treatise § 29.03, p. 129 (1958); L. Jaffe, Judicial Control of Administrative Action 601 (1965).
3
The Commission stated: 'Many of the service exhibits do not cover all of the shipper's pertinent traffic during the study period and some include shipments with were listed because complaints were received on this traffic.' Herrin Transportation Co., 114 M.C.C. 571, 596 (1971).
4
The District Court also ruled that since there had been no suggestion during the evidentiary hearings that performance studies subsequent to notice of hearing might not be viewed as representative, the appellees had been denied fair notice of the standards by which their evidence would be judged. 364 F.Supp. 1239, 1260. We disagree. A party is entitled, of course, to know the issues on which decision will turn and to be apprised of the factual material on which the agency relies for decision so that he may rebut it. Indeed, the Due Process Clause forbids an agency to use evidence in a way that forecloses an opportunity to offer a contrary presentation. Ohio Bell Telephone Co. v. Public Utilities Comm'n, 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093 (1937); United States v. Abilene & S.R. Co., 265 U.S. 274, 44 S.Ct. 565, 68 L.Ed. 1016 (1924). But these salutary principles do not preclude a factfinder from observing strengths and weaknesses in the evidence that no party identified. If the examiners had raised the qualifications to appellees' evidence the Commission later inter posed, there would have been no basis for suggesting unfairness. See American Trucking Assns. v. Frisco Transportation Co., 358 U.S. 133, 144, 79 S.Ct. 170, 176, 3 L.Ed.2d 172 (1958). The situation is not altered by the fact that the Commission parted company with the examiners. Even as to matters such as the credibility of witnesses, where the examiner is thought to have an advantage, the reviewing agency is not rigidly barred from taking a contrary position. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). We perceive no reason for binding an agency to the experience and viewpoint of the examiner in the interpretation of studies in the record. Appellees are not in a position to claim unfair surprise. The Commission offered the identical rationale in interpreting transit-time studies in a case decided just as hearings in this case began. See Braswell Freight Lines, 100 M.C.C. 482, 493—494 (1966). Appellees offered their studies knowing that the Commission might interpose qualifications.
B. Evidence of Applicants' Fitness
5
We thus distinguish the case where a firm already in possession of a franchise that offers a high degree of protection from competition seeks its renewal. Cf. Office of Communication of United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 341, 359 F.2d 994, 1007 (1966) ('history of programming misconduct . . . would preclude . . . the required finding that renewal of the license would serve the public interest').
6
Fairness as well as rationality, however, command evenhanded application of such a rule. The Commission should not have cited applicants' 'performance elsewhere' presentations without noting appropriate qualifications. Compare 114 M.C.C., at 586, with id., at 611. Yet in view of the examiners' undisputed conclusion that all the carriers were 'substantial and responsible,' there was adequate remaining basis for the Commission's finding of the applicants' fitness. And the service benefits the Commission anticipated from new entry included, not merely a possibility of improved transit times, but many other improvements in service quality. The Commission identified as service deficiencies that would be removed by new entry the following: 'restrictions or embargoes (or) outright refusals by existing carriers to handle . . . traffic'; 'pickup and delivery problems; interline difficulties relating to loss, damage, tracing, shortages, and misrouting . . ..' Id., at 600.
7
Each carrier presented the possible diversion of traffic that would result if the applications it was opposing were granted. In many cases, the protesting carrier was opposing applications not ultimately granted by the Commission. See, e.g., Examiners' Decision, App.D., at 6, 13, 14, 19, 24, 25, 34, 35, and 48 (reproduced in 2 App. 864, 1191).
8
The same must be said of the examiners' concern that service to small communities might be adversely affected by granting all the applications, since these fears derived from those about impact upon protesting carriers.
9
Much is made, for example, of the Commission's failure to notice a number of terminal closings by appellant Red Ball that had occurred since evidentiary proceedings had concluded. 364 F.Supp., at 1261. The Commission, however, cited the number of Red Ball terminals—reduced by intervening events—only in support of its conclusion that Red Ball, rather than three other carriers, should be certificated to offer new service. 114 M.C.C., at 603. Since these three carriers are not among appellees, we have doubt that appellees can show substantial prejudice from the Commission's failure to update the information.
10
In commenting upon the perceived lack of diligence by the shippers in seeking out service, the examiners rejected the notion that 'the burden is upon carriers to inform shippers of their services through personal solicitation.' The Commission, however, would have been free to conclude that greater promotional effort by carriers, brought about through competition, might most economically facilitate the matching of services to needs.
11
At oral argument counsel for appellees disposed of any 'substantial evidence' objections to the Commission's order by conceding that 'we did not allege that any finding of fact itself was not support by substantial evidence.' Tr. of Oral Arg. 25.
| 78
|
419 U.S. 345
95 S.Ct. 449
42 L.Ed.2d 477
Catherine JACKSON, etc., Petitioner,v.METROPOLITAN EDISON COMPANY.
No. 73—5845.
Argued Oct. 15, 1974.
Decided Dec. 23, 1974.
Syllabus
Petitioner brought suit against respondent, a privately owned and operated utility corporation which holds a certificate of public convenience issued by the Pennsylvania Utility Commission, seeking damages and injunctive relief under 42 U.S.C. § 1983 for termination of her electric service allegedly before she had been afforded notice, a hearing, and an opportunity to pay any amounts found due. Petitioner claimed that under state law she was entitled to reasonably continuous electric service and that respondent's termination for alleged nonpayment, permitted by a provision of its general tariff filed with the Commission, was state action depriving petitioner of her property without due process of law and giving rise to a cause of action under § 1983. The Court of Appeals affirmed the District Court's dismissal of petitioner's complaint. Held: Pennsylvania is not sufficiently connected with the challenged termination to make respondent's conduct attributable to the State for purposes of the Fourteenth Amendment, petitioner having shown no more than that respondent was a heavily regulated private utility with a partial monopoly and that it elected to terminate service in a manner that the Commission found permissible under state law. Cf. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627. Public Utilities Comm'n v. Pollak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068; Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45, distinguished. Pp. 349—359.
483 F.2d 754, affirmed.
Jack Greenberg, New York City, for petitioner.
Thomas M. Debevoise, Woodstock, Vt., for respondent.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Respondent Metropolitan Edison Co. is a privately owned and operated Pennsylvania corporation which holds a certificate of public convenience issued by the Pennsylvania Public Utility Commission empowering it to deliver electricity to a service area which includes the city of York, Pa. As a condition of holding its certificate, it is subject to extensive regulation by the Commission. Under a provision of its general tariff filed with the Commission, it has the right to discontinue service to any customer on reasonable notice of nonpayment of bills.1
2
Petitioner Catherine Jackson is a resident of York, who has received electricity in the past from respondent. Until September 1970, petitioner received electric service to her home in York under an account with respondent in her own name. When her account was terminated because of asserted delinquency in payments due for service, a new account with respondent was opened in the name of one James Dodson, another occupant of the residence, and service to the residence was resumed. There is a dispute as to whether payments due under the Dodson account for services provided during this period were ever made. In August 1971, Dodson left the residence. Service continued thereafter but concededly no payments were made. Petitioner states that no bills were received during this period.
3
On October 6, 1971, employees of Metropolitan came to the residence and inquired as to Dodson's present address. Petitioner stated that it was unknown to her. On the following day, another employee visited the residence and informed petitioner that the meter had been tampered with so as not to register amounts used. She disclaimed knowledge of this and requested that the service account for her home be shifted from Dodson's name to that of the Robert Jackson, later identified as her 12-year-old son. Four days later on October 11, 1971, without further notice to petitioner, Metropolitan employees disconnected her service.
4
Petitioner then filed suit against Metropolitan in the United States District Court for the Middle District of Pennsylvania under the Civil Rights Act of 1871, 42 U.S.C. § 1983, seeking damages for the termination and an injunction requiring Metropolitan to continue providing power to her residence until she had been afforded notice, a hearing, and an opportunity to pay any amounts found due. She urged that under state law she had an entitlement to reasonably continuous electrical service to her home2 and that Metropolitan's termination of her service for alleged nonpayment, action allowed by a provision of its general tariff filed with the Commission, constituted 'state action' depriving her of property in violation of the Fourteenth Amendment's guarantee of due process of law.3
5
The District Court granted Metropolitan's motion to dismiss petitioner's complaint on the ground that the termination did not constitute state action and hence was not subject to judicial scrutiny under the Fourteenth Amendment.4 On appeal, the United States Court of Appeals for the Third Circuit affirmed, also finding an absence of state action.5 We granted certiorari to review this judgment.6
6
The Due Process Clause of the Fourteenth Amendment provides: '(N)or shall any State deprive any person of life, liberty, or property, without due process of law.' In 1883, this Court in the Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835, affirmed the essential dichotomy set forth in that Amendment between deprivation by the State, subject to scrutiny under its provisions, and private conduct, 'however discriminatory or wrongful,' against which the Fourteenth Amendment offers no shield. Shelley v. Kraemer, 335 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948).
7
We have reiterated that distinction on more than one occasion since then. See, e.g., Evans v. Abney, 396 U.S. 435, 445, 90 S.Ct. 628, 633, 24 L.Ed.2d 634 (1970); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 171—179, 92 S.Ct. 1965, 1970—1974, 32 L.Ed.2d 627 (1972). While the principle that private action is immune from the restrictions of the Fourteenth Amendment is well established and easily stated, the question whether particular conduct is 'private,' on the one hand, or 'state action,' on the other, frequently admits of no easy answer. Burton v. Wilmington Parking Authority, 365 U.S. 715, 723, 81 S.Ct. 856, 860, 6 L.Ed.2d 45 (1961); Moose Lodge No. 107 v. Irvis, supra, 407 U.S. at 172, 92 S.Ct. at 1971.
8
Here the action complained of was taken by a utility company which is privately owned and operated, but which in many particulars of its business is subject to extensive state regulation. The mere fact that a business is subject to state regulation does not by itself convert its action into that of the State for purposes of the Fourteenth Amendment.7 407 U.S., at 176 177, 92 S.Ct., at 1973. Nor does the fact that the regulation is extensive and detailed, as in the case of most public utilities, do so. Public Utilities Comm'n v. Pollak, 343 U.S. 451, 462, 72 S.Ct. 813, 820, 96 L.Ed. 1068 (1952). It may well be that acts of a heavily regulated utility with at least something of a governmentally protected monopoly will more readily be found to be 'state' acts than will the acts of an entity lacking these characteristics. But the inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself. Moose Lodge No. 107, supra, 407 U.S. at 176, 92 S.Ct. at 1973. The true nature of the State's involvement may not be immediately obvious, and detailed inquiry may be required in order to determine whether the test is met. Burton v. Wilmington Parking Authority, supra.
9
Petitioner advances a series of contentions which, in her view, lead to the conclusion that this case should fall on the Burton side of the line drawn in the Civil Rights Cases, supra, rather than on the Moose Lodge side of that line. We find none of them persuasive.
10
Petitioner first argues that 'state action' is present because of the monopoly status allegedly conferred upon Metropolitan by the State of Pennsylvania. As a factual matter, it may well be doubted that the State ever granted or guaranteed Metropolitan a monopoly.8 But assuming that it had, this fact is not determinative in considering whether Metropolitan's termination of service to petitioner was 'state action' for purposes of the Fourteenth Amendment. In Pollak, supra, where the Court dealt with the activities of the District of Columbia Transit Co., a congressionally established monopoly, we expressly disclaimed reliance on the monopoly status of the transit authority. 343 U.S., at 462, 72 S.Ct., at 820. Similarly, although certain monopoly aspects were presented in Moose Lodge No. 107, supra, we found that the Lodge's action was not subject to the provisions of the Fourteenth Amendment. In each of those cases, there was insufficient relationship between the challenged actions of the entities involved and their monopoly status. There is no indication of any greater connection here.
11
Petitioner next urges that state action is present because respondent provides an essential public service required to be supplied on a reasonably continuous basis by Pa.Stat.Ann., Tit. 66, § 1171 (1959), and hence performs a 'public function.' We have, of course, found state action present in the exercise by a private entity of powers traditionally exclusively reserved to the State. See, e.g., Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984 (1932) (election); Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953) (election); Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946) (company town); Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966) (municipal park). If we were dealing with the exercise by Metropolitan of some power delegated to it by the State which is traditionally associated with sovereignty, such as eminent domain, our case would be quite a different one. But while the Pennsylvania statute imposes an obligation to furnish service on regulated utilities, it imposes no such obligation on the State. The Pennsylvania courts have rejected the contention that the furnishing of utility services is either a state function or a municipal duty. Girard Life Insurance Co. v. City of Philadelphia, 88 Pa. 393 (1879); Baily v. Philadelphia, 184 Pa. 594, 39 A. 494 (1898).
12
Perhaps in recognition of the fact that the supplying of utility service is not traditionally the exclusive prerogative of the State, petitioner invites the expansion of the doctrine of this limited line of cases into a broad principle that all businesses 'affected with the public interest' are state actors in all their actions.
13
We decline the invitation for reasons stated long ago in Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940 (1934), in the course of rejecting a substantive due process attack on state legislation:
14
'It is clear that there is no closed class or category of businesses affected with a public interest . . .. The phrase 'affected with a public interest' can, in the nature of things, mean no more than that an industry, for adequate reason, is subject to control for the public good. In several of the decisions of this court wherein the expressions 'affected with a public interest,' and 'clothed with a public use,' have been brought forward as the criteria . . . it has been admitted that they are not susceptible of definition and form an unsatisfactory test . . ..' Id., at 536, 54 S.Ct. at 515.
15
See, e.g., Tyson & Brother v. Banton, 273 U.S. 418, 451, 47 S.Ct. 426, 435, 71 L.Ed. 718 (1927) (Stone, J., dissenting).
16
Doctors, optometrists, lawyers, Metropolitan, and Nebbia's upstate New York grocery selling a quart of milk are all in regulated businesses, providing arguably essential goods and services, 'affected with a public interest.' We do not believe that such a status converts their every action, absent more, into that of the State.9
17
We also reject the notion that Metropolitan's termination is state action because the State 'has specifically authorized and approved' the termination practice. In the instant case, Metropolitan filed with the Public Utility Commission a general tariff—a provision of which states Metropolitan's right to terminate service for nonpayment.10 This provision has appeared in Metropolitan's previously filed tariffs for many years and has never been the subject of a hearing or other scrutiny by the Commission.11 Although the Commission did hold hearings on portions of Metropolitan's general tariff relating to a general rate increase, it never even considered the reinsertion of this provision in the newly filed general tariff.12 The provision became effective 60 days after filing when not disapproved by the Commission.13
18
As a threshold matter, it is less than clear under state law that Metropolitan was even required to file this provision as part of its tariff or that the Commission would have had the power to disapprove it.14 The District Court observed that the sole connection of the Commission with this regulation was Metropolitan's simple notice filing with the Commission and the lack of any Commission action to prohibit it.15
19
The case most heavily relied on by petitioner is Public Utilities Comm'n v. Pollak, supra. There the Court dealt with the contention that Capital Transit's installation of a piped music system on its buses violated the First Amendment rights of the bus riders. It is not entirely clear whether the Court alternatively held that Capital Transit's action was action of the 'State' for First Amendment purposes, or whether it merely assumed, arguendo, that it was and went on to resolve the First Amendment question adversely to the bus riders.16 In either event, the nature of the state involvement there was quite different than it is here. The District of Columbia Public Utilities Commission, on its own motion, commenced an investigation of the effects of the piped music, and after a full hearing concluded not only that Capital Transit's practices were 'not inconsistent with public convenience, comfort, and safety,' 81 P.U.R. (N.S.) 122, 126 (1950), but also that the practice 'in fact, through the creation of better will among passengers, . . . tends to improve the conditions under which the public ride.' Ibid. Here, on the other hand, there was no such imprimatur placed on the practice of Metropolitan about which petitioner complains. The nature of governmental regulation of private utilities is such that a utility may frequently be required by the state regulatory scheme to obtain approval for practices a business regulated in less detail would be free to institute without any approval from a regulatory body. Approval by a state utility commission of such a request from a regulated utility, where the commission has not put its own weight on the side of the proposed practice by ordering it, does not transmute a practice initiated by the utility and approved by the commission into 'state action.' At most, the Commission's failure to overturn this practice amounted to no more than a determination that a Pennsylvania utility was authorized to employ such a practice if it so desired. Respondent's exercise of the choice allowed by state law where the initiative comes from it and not from the State,17 does not make its action in doing so 'state action' for purposes of the Fourteenth Amendment.
20
We also find absent in the instant case the symbiotic relationship presented in Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). There where a private lessee, who practiced racial discrimination, leased space for a restaurant from a state parking authority in a publicly owned building, the Court held that the State had so far insinuated itself into a position of interdependence with the restaurant that it was a joint participant in the enterprise. Id., at 725, 81 S.Ct. at 861. We cautioned, however, that while 'a multitude of relationships might appear to some to fall within the Amendment's embrace,' differences in circumstances beget differences in law, limiting the actual holding to lessees of public property. Id., at 726, 81 S.Ct. at 862.
21
Metropolitan is a privately owned corporation, and it does not lease its facilities from the State of Pennsylvania. It alone is responsible for the provision of power to its customers. In common with all corporations of the State it pays taxes to the State, and it is subject to a form of extensive regulation by the State in a way that most other business enterprises are not. But this was likewise true of the appellant club in Moose Lodge No. 107 v. Irvis, supra, where we said:
22
'However detailed this type of regulation may be in some particulars, it cannot be said to in any way foster or encourage racial discrimination. Nor can it be said to make the State in any realistic sense a partner or even a joint venturer in the club's enterprise.' 407 U.S., at 176—177, 92 S.Ct. at 1973.
23
All of petitioner's arguments taken together show no more than that Metropolitan was a heavily regulated, privately owned utility, enjoying at least a partial monopoly in the providing of electrical service within its territory, and that it elected to terminate service to petitioner in a manner which the Pennsylvania Public Utility Commission found permissible under state law. Under our decision this is not sufficient to connect the State of Pennsylvania with respondent's action so as to make the latter's conduct attributable to the State for purposes of the Fourteenth Amendment.
24
We conclude that the State of Pennsylvania is not sufficiently connected with respondent's action in terminating petitioner's service so as to make respondent's conduct in so doing attributable to the State for purposes of the Fourteenth Amendment. We therefore have no occasion to decide whether petitioner's claim to continued service was 'property' for purposes of that Amendment, or whether 'due process of law' would require a State taking similar action to accord petitioner the procedural rights for which she contends. The judgment of the Court of Appeals for the Third Circuit is therefore
25
Affirmed.
26
Mr. Justice DOUGLAS, dissenting.
27
I reach the opposite conclusion from that reached by the majority on the state-action issue.
28
The injury alleged took place when respondent discontinued its service to this householder without notice or opportunity to remedy or contest her alleged default, even though its tariff provided that respondent might 'discontinue its service on reasonable notice.'1 May a State allow a utility—which in this case has no competitor—to exploit its monopoly in violation of its own tariff? May a utility have complete immunity under federal law when the State allows it regulatory agency to become the prisoner of the utility or, by a listless attitude of no concern, to permit the utility to use its monopoly power in a lawless way?
29
In Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961), we said: 'Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance.' Id., at 722, 81 S.Ct. at 860. A particularized inquiry into the circumstances of each case is necessary in order to determine whether a given factual situation falls within 'the variety of individual-state relationships which the (Fourteenth) Amendment was designed to embrace.' Ibid. As our subsequent discussion in Burton made clear, the dispositive question in any state-action case is not whether any single fact or relationship presents a sufficient degree of state involvement, but rather whether the aggregate of all relevant factors compels a finding of state responsibility.2 Id., at 722—726, 81 S.Ct. at 860—862. See generally Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972).
30
It is not enough to examine seriatim each of the factors upon which a claimant relies and to dismiss each individually as being insufficient to support a finding of state action. It is the aggregate that is controlling.
31
It is said that the mere fact of respondent's monopoly status, assuming arguendo that that status is state conferred or state protected,3 'is not determinative in considering whether Metropolitan's termination of service to petitioner was 'state action' for purposes of the Fourteenth Amendment.' Ante, at 351—352. Even so, a state-protected monopoly status is highly relevant in assessing the aggregate weight of a private entity's ties to the State.4
32
It is said that the fact that respondent's services are 'affected with a public interest' is not determinative. I agree that doctors, lawyers, and grocers are not transformed into state actors simply because they provide arguably essential goods and services and are regulated by the State. In the present case, however, respondent is not just one person among many; it is the only public utility furnishing electric power to the city. When power is denied a householder, the home, under modern conditions, is likely to become unlivable.
33
Respondent's procedures for termination of service may never have been subjected to the same degree of state scrutiny and approval, whether explicit or implicit, that was present in Public Utilities Comm'n v. Pollak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068 (1952). Yet in the present case the State is heavily involved in respondent's termination procedures, getting into the approved tariff a requirement of 'reasonable notice.' Pennsylvania has undertaken to regulate numerous aspects of respondent's operations in some detail,5 a 'hands-off' attitude of permissiveness or neutrality toward the operations in this case is at war with the state agency's functions of supervision over respondent's conduct in the area of servicing householders, particularly where (as here) the State would presumably lend its weight and authority to facilitate the enforcement of respondent's published procedures. Cf. Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967); Railway Employes' Dept. v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112 (1956); Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948).
34
In the aggregate, these factors depict a monopolist providing essential public services as a licensee of the State and within a framework of extensive state supervision and control. The particular regulations at issue, promulgated by the monopolist, were authorized by state law and were made enforceable by the weight and authority of the State. Moreover, the State retains the power of oversight to review and amend the regulations if the public interest so requires. Respondent's actions are sufficiently intertwined with those of the State, and its termination-of-service provisions are sufficiently buttressed by state law to warrant a holding that respondent's actions in terminating this householder's service were 'state action' for the purpose of giving federal jurisdiction over respondent under 42 U.S.C. § 1983. Though the Court pays lip service to the need for assessing the totality of the State's involvement in this enterprise, ante, at 358, its underlying analysis is fundamentally sequential rather than cumulative. In that perspective, what the Court does today is to make a significant departure from our previous treatment of state-action issues.
35
Mr. Justice Brandeis in Liggett Co. v. Lee, 288 U.S. 517, 53 S.Ct. 481, 77 L.Ed. 929 (1933), in speaking of the competition among the States to ease the opportunities and methods of incorporation, said: 'The race was one not of diligence but of laxity.' Id., at 559, 53 S.Ct. at 494 (dissenting opinion). One has only to peruse the 84-part Utility Corporations Report by the Federal Trade Commission (under the direction of its able counsel the late Robert E. Healy) to realize that state regulation of utilities has largely made state commissions prisoners of the utilities. See especially S. Doc. No. 92, 70th Cong., 1st Sess., pt. 73—A (1936); and see id., pt. 72—A, p. 880. In this connection it should be noted that successful attempts by public utilities to exclude themselves from the antitrust laws have been based on the assertion that their monopoly activity constitutes 'state action.' See Washington Gas Light Co. v. Virginia Electric & Power Co., 438 F.2d 248, 250—252 (CA4 1971); Gas Light Co. of Columbus v. Georgia Power Co., 440 F.2d 1135, 1138—1140 (CA5 1971).
36
By like token the tariff prescribing termination-of-service procedures was possible only because of 'state action.' And it would be compatible only with administrative abdication of authority to equate 'administrative silence with abandonment of administrative duty.' Washington Gas Light Co. v. Virginia Electric & Power Co., supra, 438 F.2d at 252.
37
Section 1983 was designed to give citizens a federal forum6 for civil rights complaints wherever, by direct or indirect actions, a State, acting 'in cahoots' with a private group or through neglect or listless oversight, allows a private group to perpetrate an injury. The theory is that in those cozy situations, local politics and the pressure of economic overlords on subservient state agencies make recovery in state courts unlikely. I realize we are in an area where we witness a great retreat from the exercise of federal jurisdiction which the Congress has conferred on federal courts. The sentiment here is that state courts are as hospitable as federal courts to federal claims. That may well be true, in some instances. But it is for the Senate and the House to make that decision. We should not tolerate an erosion of the policy Congress expressed in drafting § 1983.
38
Section 1983 addresses itself to grievances inflicted 'under color of any statute, ordinance, (or) regulation . . . of any State . . ..' The regulatory regime imposed by Pennsylvania on respondent utility seems to fit this statute like a glove. Electrical service, being a necessity of life under the circumstances of this case, is an entitlement which under our decisions may not be taken without the requirements of procedural due process. Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 1994, 32 L.Ed.2d 556 (1972); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Palmer v. Columbia Gas of Ohio, Inc., 479 F.2d 153 (CA6 1973).
39
Mr. Justice BRENNAN, dissenting.
40
I do not think that a controversy existed between petitioner and respondent entitling petitioner to be heard in this action. Under Pennsylvania law respondent's duty under Pa.Stat.Ann., Tit. 66, § 1171 (1959), to provide service was limited by § 25 of the General Rules and Regulations, the Electric Service Tariff, on file with the Pennsylvania Public Utility Commission, to provision of such service only to 'customers,' defined as '(a)ny person(s) . . . lawfully receiving service from (the) Company.' Petitioner, as the Court notes, ceased being a 'customer' in September 1970 when her account was terminated for nonpayment of bills. That termination was pursuant to Rule 15 of the tariff quoted by the Court in n. 1. From September 1970 to September 1971, respondent's 'customer' was James Dodson; and his delinquency in payment for service during that period, not petitioner's delinquency before September 1970, was the occasion for the termination of service on October 11, 1971. An effort by petitioner at that time to have service continued f she paid $30 on account or her delinquent 1970 bill failed when respondent rejected the offer and shut off the service. In these circumstances petitioner had no basis in my view for the claimed entitlement under § 1171 quoted by the Court in n. 2, and therefore no controversy existed between petitioner and respondent which could be the subject of her action. I would therefore intimate no view upon the correctness of the holdings below whether the termination of service on October 11, 1971, constituted state action but would vacate the judgment of the Court of Appeals with direction that the case be remanded to the District Court with instruction to enter a new judgment dismissing the complaint. See Golden v. Zwickler, 394 U.S. 103, 109—110, 89 S.Ct. 956, 960—961, 22 L.Ed.2d 113 (1969).
41
Mr. Justice MARSHALL, dissenting.
42
I agree with my Brother BRENNAN that this case is a very poor vehicle for resolving the difficult and important questions presented today. The confusing sequence of events leading to the challenged termination makes it unclear whether petitioner has a property right under state law to the service she was receiving from the respondent company. Because these complexities would seriously hamper resolution of the merits of the case, I would dismiss the writ as improvidently granted. Since the Court has disposed of the case by finding no state action, however, I think it appropriate to register my dissent on that point.
43
* The Metropolitan Edison Co. provides an essential public service to the people of York, Pa. It is the only entity public or private, that is authorized to supply electric service to most of the community. As a part of its charter to the company, the State imposes extensive regulations, and it cooperates with the company in myriad ways. Additionally, the State has granted its approval to the company's mode of service termination—the very conduct that is challenged here. Taking these factors together, I have no difficulty finding state action in this case. As the Court concluded in Burton v. Wilmington Parking Authority, 365 U.S. 715, 725, 81 S.Ct. 856, 862, 6 L.Ed.2d 45 (1961), the State has sufficiently 'insinuated itself into a position of interdependence with (the company) that it must be recognized as a joint participant in the challenged activity.'
44
Our state-action cases have repeatedly relied on several factors clearly presented by this case: a state-sanctioned monopoly; an extensive pattern of cooperation between the 'private' entity and the State; and a service uniquely public in nature. Today the Court takes a major step in repudiating this line of authority and adopts a stance that is bound to lead to mischief when applied to problems beyond the narrow sphere of due process objections to utility terminations.
A.
45
When the State confers a monopoly on a group or organization, this Court has held that the organization assumes many of the obligations of the State. Railway Employes' Dept. v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112 (1956). Even when the Court has not found state action based solely on the State's conferral of a monopoly, it has suggested that the monopoly factor weighs heavily in determining whether constitutional obligations can be imposed on formally private entities. See Steele v. Louisville & Nashville R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944). Indeed, in Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 177, 92 S.Ct. 1965, 1973, 32 L.Ed.2d 627 (1972), the Court was careful to point out that the Pennsylvania liquor-licensing scheme 'falls far short of conferring upon club licensees a monopoly in the dispensing of liquor in any given municipality or in the State as a whole.'
46
The majority distinguishes this line of cases with a cryptic assertion that public utility companies are 'natural monopolies.' Ante, at 351—352, n. 8. The theory behind the distinction appears to be that since the State's purpose in regulating a natural monopoly is not to aid the company but to prevent its charging monopoly prices, the State's involvement is somehow less significant for state-action purposes. I cannot agree that so much should turn on so narrow a distinction. Initially, it is far from obvious that an electric company would not be subject to competition if the market were unimpeded by governmental restrictions. Certainly the 'start-up' costs of initiating electric service are substantial, but the rewards available in a relatively inelastic market might well be sufficient under the right circumstances to attract competitive investment. Instead, the State has chosen to forbid the high profit margins that might invite private competition or increase pressure for state ownership and operation of electric power facilities.
47
The difficulty inherent in this kind of economic analysis counsels against excusing natural monopolies from the reach of state-action principles. To invite inquiry into whether a particular state-sanctioned monopoly might have survived without the State's express approval grounds the analysis in hopeless speculation. Worse, this approach ignores important implications of the State's policy of utilizing private monopolies to provide electric service. Encompassed within this policy is the State's determination not to permit governmental competition with the selected private company, but to cooperate with and regulate the company in a multitude of ways to ensure that the company's service will be the functional equivalent of service provided by the State.1
B
48
The pattern of cooperation between Metropolitan Edison and the State has led to significant state involvement in virtually every phase of the company's business. The majority, however, accepts the relevance of the State's regulatory scheme only to the extent that it demonstrates state support for the challenged termination procedure. Moreover, after concluding that the State in this case had not approved the company's termination procedures, the majority suggests that even state authorization and approval would not be sufficient: the State would apparently have to order the termination practice in question to satisfy the majority's state-action test, see ante, at 357.
49
I disagree with the majority's position on three separate grounds. First, the suggestion that the State would have to 'put its own weight on the side of the proposed practice by ordering it' seems to me to mark a sharp departure from our previous state-action cases. From The Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883), to Moose Lodge, supra, we have consistently indicated that state authorization and approval of 'private' conduct would support a finding of state action.2
50
Second, I question the wisdom of giving such short shrift to the extensive interaction between the company and the State, and focusing solely on the extent of state support for the particular activity under challenge. In cases where the State's only significant involvement is through financial support or limited regulation of the private entity, it may be well to inquire whether the State's involvement suggests state approval of the objectionable conduct. See Powe v. Miles, 407 F.2d 73, 81 (CA2 1968); Grossner v. Trustees of Columbia University, 287 F.Supp. 535, 547—548 (SDNY 1968). But where the State has so thoroughly insinuated itself into the operations of the enterprise, it should not be fatal if the State has not affirmatively sanctioned the particular practice in question.
51
Finally, it seems to me in any event that the State has given its approval to Metropolitan Edison's termination procedures. The State Utility Commission approved a tariff provision under which the company reserved the right to discontinue its service on reasonable notice for nonpayment of bills.
52
The majority attempts to make something of the fact that the tariff provision was not challenged in the most recent Utility Commission hearings, and that it had apparently not been challenged before. But the provision had been included in a tariff required to be filed and approved by the State pursuant to statute. That it was not seriously questioned before approval does not mean that it was not approved. It suggests, instead, that the Commission was satisfied to permit the company to proceed in the termination area as it had done in the past. The majority's test puts potential plaintiffs in a difficult position: if the Commission approves the tariff without argument or a hearing, the State has not sufficiently demonstrated its approval and support for the company's practices. If, on the other hand, the State challenges the tariff provision on the ground, for example, that the 'reasonable notice' does not meet the standards of fairness that it expects of the utility, then the State has not put its weight behind the termination procedure employed by the company, and again there is no state action. Apparently, authorization and approval would require the kind of hearing that was held in Pollak, where the Public Utilities Commission expressly stated that the bus company's installation of radios in buses and streetcars was not inconsistent with the public convenience, safety, and necessity. I am afraid that the majority has in effect restricted Pollak to its facts if it has not discarded it altogether.3
C
53
The fact that the Metropolitan Edison Co. supplies an essential public service that is in many communities supplied by the government weighs more heavily for me than for the majority. The Court concedes that state action might be present if the activity in question were 'traditionally associated with sovereignty,' but it then undercuts that point by suggesting that a particular service is not a public function if the State in question has not required that it be governmentally operated. This reads the 'public function' argument too narrowly. The whole point of the 'public function' cases is to look behind the State's decision to provide public services through private parties. See Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966); Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953); Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946). In my view, utility service is traditionally identified with the State through universal public regulation or ownership to a degree sufficient to render it a 'public function.' I agree with the majority that it requires more than a finding that a particular business is 'affected with the public interest' before constitutional burdens can be imposed on that business. But when the activity in question is of such public importance that the State invariably either provides the service itself or permits private companies to act as state surrogates in providing it, much more is involved than just a matter of public interest. In those cases, the State has determined that if private companies wish to enter the field, they will have to surrender many of the prerogatives normally associated with private enterprise and behave in many ways like a governmental body. And when the State's regulatory scheme has gone that far, it seems entirely consistent to impose on the public utility the constitutional burdens normally reserved for the State.
54
Private parties performing functions affecting the public interest can often make a persuasive claim to be free of the constitutional requirements applicable to governmental institutions because of the value of preserving a private sector in which the opportunity for individual choice is maximized. See Evans v. Newton, supra, 382 U.S., at 298, 86 S.Ct., at 487; H. Friendly, The Dartmouth College Case and the Public-Private Penumbra (1969). Maintaining the private status of parochial schools, cited by the majority, advances just this value. In the due process area, a similar value of diversity may often be furthered by allowing various private institutions the flexibility to select procedures that fit their particular needs. See Wahba v. New York University, 492 F.2d 96, 102 (CA2), cert. denied, 419 U.S. 874, 95 S.Ct. 135, 42 L.Ed.2d 113 (1974). But it is hard to imagine any such interests that are furthered by protecting privately owned public utility companies from meeting the constitutional standards that would apply if the companies were state owned. The values of pluralism and diversity are simply not relevant when the private company is the only electric company in town.
II
55
The majority's conclusion that there is no state action in this case is likely guided in part by its reluctance to impose on a utility company burdens that might ultimately hurt consumers more than they would help them. Elaborate hearings prior to termination might be quite expensive, and for a responsible company there might be relatively few cases in which such hearings would do any good. The solution to this problem, however, is to require only abbreviated pretermination procedures for all utility companies, not to free the 'private' companies to behave however they see fit. At least on occasion, utility companies have failed to demonstrate much sensitivity to the extreme importance of the service they render, and in some cities, the percentage of error in service termination is disturbingly high. See Palmer v. Columbia Gas Co. of Ohio, Inc., 342 F.Supp. 241, 243 (ND Ohio 1972), aff'd, 479 F.2d 153 (CA6 1973); Bronson v. Consolidated Edison Co., 350 F.Supp. 443, 448 (SDNY 1972).4 Accordingly, I think that at the minimum, due process would require advance notice of a proposed termination with a clear indication that a responsible company official can readily be contacted to consider any claim of error.
III
56
What is perhaps most troubling about the Court's opinion is that it would appear to apply to a broad range of claimed constitutional violations by the company. The Court has not adopted the notion, accepted elsewhere, that different standards should apply to state action analysis when different constitutional claims are presented. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 190 191, 90 S.Ct. 1598, 1620—1621, 26 L.Ed.2d 142 (1970) (Brennan, J., concurring and dissenting); Grafton v. Brooklyn Law School, 478 F.2d 1137, 1142 (CA2 1973). Thus, the majority's analysis would seemingly apply as well to a company that refused to extend service to Negroes, welfare recipients, or any other group that the company preferred, for its own reasons, not to serve. I cannot believe that this Court would hold that the State's involvement with the utility company was not sufficient to impose upon the company an obligation to meet the constitutional mandate of nondiscrimination. Yet nothing in the analysis of the majority opinion suggests otherwise.
57
I dissent.
1
Metropolitan Edison Company Electrical Tariff, Electric Pa.P.U.S. No. 41, Rule 15. This portion of Metropolitan's general tariff, filed with the Utility Commission under the notice-filing requirement of Pa.Stat.Ann., Tit. 66, § 1142 (1959) (since the general tariff involved a rate increase), provides in pertinent part:
'(15)—Cause for discontinuance of service.
'Company reserves the right to discontinue its service on reasonable notice and to remove its equipment in case of nonpayment of bill . . ..'
Its filed tariff also gives it the right to terminate service for fraud or for tampering with a meter but Metropolitan did not seek to assert these grounds below.
2
The basis for this claimed entitlement is Pa.Stat.Ann., Tit. 66, § 1171 (1959), providing in part:
'Every public utility shall furnish and maintain adequate, efficient, safe, and reasonable service and facilities . . .. Such service also shall be reasonably continuous and without unreasonable interruptions or delay. . ..'
Mrs. Jackson finds in this provision a state-law entitlement to continuing utility service to her residence. She reasons that under the Due Process Clause of the Fourteenth Amendment she cannot be deprived of this entitlement to utility service without adequate notice and a hearing before an impartial body: until these are completed, her service must continue. Because of our conclusion on the threshold question of state action, we do not reach questions relating to the existence of a property interest or of what procedural guarantees the Fourteenth Amendment would require if a property interest were found to exist. FC Mr. Justice BRENNAN, dissenting, post, at 364, concludes that there is no justiciable controversy between petitioner and respondent because whatever entitlement to service petitioner had was previously terminated by respondent in accordance with its tariff. We do not believe this to be any less a determination of the merits of the action than is our conclusion that whatever deprivation she may have suffered was not caused by the State. Issues of whether a claimed entitlement is 'property' within the meaning of the Due Process Clause, Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and whether if so its deprivation was consistent with due process, see Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974), are themselves constitutional questions which we find no occasion to reach in this case.
3
Section 1 of the Fourteenth Amendment provides in part:
'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.'
4
The decision is reported at 348 F.Supp. 954 (1972).
5
The decision is reported at 483 F.2d 754 (1973).
6
415 U.S. 912, 94 S.Ct. 1407, 39 L.Ed.2d 466 (1974). Compare Kadlec v. Illinois Bell Telephone Co., 407 F.2d 624 (CA7), cert. denied, 396 U.S. 846, 90 S.Ct. 90, 24 L.Ed.2d 95 (1969); Lucas v. Wisconsin Electric Power Co., 466 F.2d 638 (CA7 1972), cert. denied, 409 U.S. 1114, 93 S.Ct. 928, 34 L.Ed.2d 696 (1973), with Palmer v. Columbia Gas of Ohio, Inc., 479 F.2d 153 (CA6 1973), modified in Turner v. Impala Motors, 503 F.2d 607 (CA6 1974). Cf. Ihrke v. Northern States Power Co., 459 F.2d 566 (CA8), vacated as moot, 409 U.S. 815, 93 S.Ct. 66, 34 L.Ed.2d 72 (1972).
7
Enterprises subject to the same regulatory system as Metropolitan are enumerated in the definition of 'public utility' contained in Pa.Stat.Ann., Tit. 66, § 1102(17) (1959 and Supp.1974 1975). Included in this definition are all companies engaged in providing gas, power, or water; all common carriers, pipeline companies, telephone and telegraph companies, sewage collection and disposal companies; and corporations affiliated with any company engaging in such activities. Among some of the enterprises held subject to this regulatory scheme are freight forwarding and storage companies (Highway Freight Forwarding Co. v. Public Service Comm'n, 108 Pa.Super. 178, 164 A. 835 (1933)), real estate developers who incident to their business, provide water services (Sayre Land Co. v. Pennsylvania Public Utility Comm'n, 21 Pa.D. & C.2d 469 (1959)), and individually owned taxicabs. Pennsylvania Public Utility Comm'n v. Israel, 356 Pa. 400, 52 A.2d 317 (1947). In Philadelphia Rural Transit Co. v. City of Philadelphia, 309 Pa. 84, 93, 159 A. 861, 864 (1932), the court estimated that there were 26 distinct types of enterprises subject to this regulatory system, and a fair reading of Pennsylvania law indicates a substantial expansion of included enterprises since that case. The incidents of regulation do not appear materially different between enterprises. If the mere existence of this regulatory scheme made Metropolitan's action that of the State, then presumably the actions of a lone Philadelphia cab driver could also be fairly treated as those of the State of Pennsylvania.
8
It is provided in Pa.Stat.Ann., Tit. 66, § 1121 (Supp.1974 1975), that issuance of a certificate of public convenience is a prerequisite for engaging in the utility business in Pennsylvania. The requirements for obtaining such a certificate are described in Pa.Stat.Ann., Tit. 66, §§ 1122, 1123 (1959 and Supp.1974—1975). There is nothing in either Metropolitan's certificate or in the statutes under which it was issued indicating that the State has granted or guaranteed to Metropolitan monopoly status. In fact Metropolitan does face competition within portions of its service area from another private utility company and from municipal utility companies. Metropolitan was organized in 1874, 39 years before Pennsylvania's adoption of its first utility regulatory scheme in 1913. There is no indication that it faced any greater competition in 1912 than today. As petitioner admits, such public utility companies are natural monopolies created by the economic forces of high threshold capital requirements and virtually unlimited economy of scale. Burdick, The Origin of the Peculiar Duties of Public Service Companies, 11 Col.L.Rev. 514 (1911); H. Trachsel, Public Utility Regulation 7—8, 52 (1947). Regulation was superimposed on such natural monopolies as a substitute for competition and not to eliminate it:
'The primary object of the Public Utility Law is not to establish monopolies or to guarantee the security of investments in public service corporations, but to serve the interests of the public.' Highway Express Lines, Inc. v. Pennsylvania Public Utility Comm'n, 195 Pa.Super. 92, 100, 169 A.2d 798, 802 (1961); cf. Pottsville Union Traction Co. v. Public Service Comm'n, 67 Pa.Super. 301, 304 (1917).
9
The argument has been impliedly rejected by this Court on a number of occasions. See, e.g., Civil Rights Cases, 109 U.S. 3, 8, 3 S.Ct. 18, 20, 27 L.Ed. 835 (1883). It is difficult to imagine a regulated activity more essential or more 'clothed with the public interest' than the maintenance of schools, yet we stated in Evans v. Newton, 382 U.S. 296, 300, 86 S.Ct. 486, 489, 15 L.Ed.2d 373 (1966):
'The range of government activities is broad and varied, and the fact that government has engaged in a particular activity does not necessarily mean that an individual enterpreneur or manager of the same kind of undertaking suffers the same constitutional inhibitions. While a State may not segregate public schools so as to exclude one or more religious groups, those sects may maintain their own parochial educational systems.'
10
See n. 1, supra. The same provision appeared in all of Metropolitan's prior general tariffs. The sole reason for substituting the new general tariff, which contains all the terms and conditions of Metropolitan's service, was to procure a rate increase. This was the sole change between Metropolitan's Electrical Tariff No. 41 and its predecessor.
11
Petitioner does not contest the fact that Metropolitan had this right at common law before the advent of regulation. Brief for Petitioner 31.
12
Petitioner concedes that the hearing was solely devoted to the question of the proposed rate increase. Id., at 30.
13
See Pa.Stat.Ann., Tit. 66, § 1148 (1959); Pa.P.U.C. Tariff Regulations, § II, 'Public Notice of Tariff Changes.' These provisions specify that utility companies must give 60 days' notice to the public before changing their rules filed in their general tariff. Since Pa.Stat.Ann., Tit. 66, § 1171 (1959), provides that '(s)ubject to . . . the regulations or orders of the commission, every public utility may have reasonable rules and regulations governing the conditions under which it shall be required to render service', the Commission arguably had the power to disapprove utility rules. There is no evidence that it has ever even considered the provision in question. When the 60-day notice period passed, the provisions became effective.
14
Pennsylvania P.U.C. Tariff, Regulations § VIII 'Discount for Prompt Payment and Penalties for Delayed Payment of Bills,' is the only authority cited for a state-imposed requirement that Metropolitan file its termination provision as part of its general tariff. This section requires the filing of 'penalties' imposed upon customers for failures to pay bills promptly. Respondent argues that this applies only to monetary penalties. There is no Pennsylvania case law on the question.
15
'The only apparent state involvement with the activity complained of here is in Tariff Reg. VIII of the Pennsylvania P.U.C. . . . (T)he purpose of Tariff Reg. VIII is to insure that public utilities inform their patrons of any possible penalty for failing to pay their bills. As Kadlec, defendant here acted pursuant to its own regulations and out of a purely private, economic motive. No state offical participated in the practice complained of, nor is it alleged that the state requested or co-operated in the suspension of service.' 348 F.Supp., at 958.
16
See 343 U.S., at 462, 72 S.Ct., at 820. At one point the Court states:
'We find in the reasoning of the court below a sufficiently close relation between the Federal Government and the radio service to make it necessary for us to consider those Amendments.' Ibid. Later, the opinion states:
'We, therefore, find it appropriate to examine into what restriction, if any, the First and Fifth Amendments place upon the Federal Government . . . assuming that the action of Capital Transit . . . amounts to sufficient Federal Government action to make the First and Fifth Amendments applicable thereto.' Id., at 462—463, 72 S.Ct., at 820. (Emphasis added.)
The Court then went on to find no constitutional violation in the challenged action.
17
As in Moose Lodge No. 107 V. Irvis, 407 U.S. 163, 173, 92 S.Ct. 1965, 1971, 32 L.Ed.2d 627 (1972), there is no suggestion in this record that the Pennsylvania Public Utility Commission intended either overtly or covertly to encourage the practice. See n. 15, supra.
1
Rule 15 of the tariff provides in part:
'Company reserves the right to discontinue its service on reasonable notice and to remove its equipment in case of nonpayment of bill or violation of the Pennsylvania Public Utility Commission's or Company's Rules and Regulations; or, without notice, for abuse, fraud, or tampering with the connections, meters or other equipment of Company. Failure by Company to exercise this right shall not be deemed a waiver thereof.'
2
The court below in Burton had relied heavily on a number of facts indicating minimal state involvement, but we regarded that court's analysis as unduly restricted in its scope: 'While these factual considerations are indeed validly accountable aspects of the enterprise upon which the State has embarked, we cannot say that they lead inescapably to the conclusion that state action is not present. Their persuasiveness is diminished when evaluated in the context of other factors which must be acknowledged.' 365 U.S., at 723, 81 S.Ct. at 861.
After discussing those additional factors in greater detail, we concluded: 'Addition of all these activites, obligations and responsibilities of the Authority, the benefits mutually conferred, together with the obvious fact that the restaurant is operated as an integral part of a public building devoted to a public parking service, indicates that degree of state participation and involvement in discriminatory action which it was the design of the Fourteenth Amendment to condemn.' Id., at 724, 81 S.Ct. at 861.
3
It seems irrelevant that Metropolitan was organized prior to the inauguration of utility regulation in Pennsylvania, and that a utility of this sort is, for all practical purposes, a natural monopoly. Whatever its origins, the existing situation presents a monopoly enterprise subject to detailed state regulation; the nature and extent of that regulation take on particular significance in light of the lack of any alternative source of service available to Metropolitan's customers.
4
Our disclaimer of reliance upon this factor in Public Utilities Comm'n v. Pollak, 343 U.S. 451, 462, 72 S.Ct. 813, 820, 96 L.Ed. 1068 (1952), should not be read as holding that monopoly status is wholly irrelevant; the 'disclaimer' on its face simply states that monopoly status was not used as an ingredient of the finding of federal governmental involvement in that case.
5
The Public Utility Commission is given extensive control over utility rates, Pa.Stat.Ann., Tit. 66, § 1141 et seq. (1959 and Supp. 1974—1975), and over the character and quality of utility services and facilities, §§ 1171, 1182—1183; it is given broad power to receive and investigate complaints, §§ 1391, 1398, and to regulate and supervise the activities, rules, and contractual undertakings of utilities, §§ 1171, 1341—1343, 1360.
6
There is no requirement for an exhaustion of state remedies before suing under § 1983 (see Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971)), though suggestions for statutory changes in that regard have been made. Judd, The Expanding Jurisdiction of the Federal Courts, 60 A.B.A.J. 938, 941 (1974).
1
The State's regulatory pattern makes it amply clear that it expects utility companies to behave more like governmental entities than private corporations. The rates are fixed by the Public Utility Commission, as are the standards of service and the company's system of accounting. Pa.Stat.Ann., Tit. 66, §§ 1141, 1149, 1171, 1182, 1183, 1211 (1959). The character of the facilities is subject to state approval and continuing supervision, and the State also requires that the service 'shall be reasonably continuous and without unreasonable interruptions or delay.' § 1171. The certificate of public convenience confers certain eminent domain rights upon the company, § 1124 (Supp.1974 1975), as well as the right of entry into a customer's property to maintain and inspect its equipment. Pa.P.U.C. Electric Regulations, Rule 14D.
2
In the Civil Rights Cases, the Court suggested that state action might be found if the conduct in question were 'sanctioned in some way by the state,' 109 U.S., at 17, 3 S.Ct. at 26. Later cases made it clear that the State's sanction did not need to be in the form of an affirmative command. McCabe v. Atchison, T. & S.F.R. Co., 235 U.S. 151, 35 S.Ct. 69, 59 L.Ed. 169 (1914); Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984 (1932); Public Utilities Comm'n v. Pollak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068 (1952). In Burton v. Wilmington Parking Authority, 365 U.S. 715, 725, 81 S.Ct. 856, 862, 6 L.Ed.2d 45 (1961), the Court noted that by its inaction, the State had 'elected to place its power, property and prestige behind the admitted discrimination,' although the State did not actually order the discrimination. See id., at 726—727, 81 S.Ct., at 862—863 (Stewart, J., concurring). And in Reitman v. Mulkey, 387 U.S. 369, 381, 87 S.Ct. 1627, 1634, 18 L.Ed.2d 830 (1967), the Court based its 'state action' ruling on the fact that the California constitutional provision 'was intended to authorize, and does authorize, racial discrimination in the housing market.' Even in Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 176—177, 92 S.Ct. 1965, 1973, 32 L.Ed.2d 627 (1972), the Court suggested that if the State's regulation had in any way fostered or encouraged racial discrimination, a state-action finding might have been justified. Certainly this is a less rigid standard than the Court's requirement in this case that the Public Utility Commission be shown to have ordered the challenged conduct, not merely to have approved it.
3
I cannot accept the majority's characterization of Pollak as not necessarily deciding the state-action question there presented. Ante, at 356. Whatever doubt on that score may have been created by the original opinion has long since been resolved by this Court. See Evans v. Newton, 382 U.S. 296, 301, 86 S.Ct. 486, 489, 15 L.Ed.2d 373 (1966); id., at 319—320, 86 S.Ct. at 498 499 (Harlan, J., dissenting); Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 119, 93 S.Ct. 2080, 2094, 36 L.Ed.2d 772 (1973) (opinion of Burger, C.J.); id., at 133, 93 S.Ct., at 2101 (Stewart, J., concurring).
4
In Bronson, Judge Tyler noted that the state utility commission had found that 16% of the complaints investigated resulted in adjustments in favor of the customer. 350 F.Supp., at 448 n. 11.
| 34
|
419 U.S. 301
95 S.Ct. 429
42 L.Ed.2d 465
LINDEN LUMBER DIVISION, SUMMER & CO., Petitioner,v.NATIONAL LABOR RELATIONS BOARD et al. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TRUCK DRIVERS UNION LOCAL No. 413 et al.
Nos. 73—1231 and 73—1234.
Argued Nov. 18, 1974.
Decided Dec. 23, 1974.
Syllabus
An employer who has not engaged in an unfair labor practice impairing the electoral process does not commit a violation of § 8(a)(5) of the National Labor Relations Act simply because he refuses to accept evidence of the union's majority status other than the results of a Board election. At least in the absence of any agreement to permit majority status to be determined by means other than a Board election, a union that is refused recognition despite authorization cards or other such evidence purporting to show that it represents a majority of the employees has the burden of taking the next step and invoking the Board's election procedure. Pp. 303—310.
159 U.S.App.D.C. 228, 487 F.2d 1099, reversed.
Norton J. Come, Washington, D.C., for the NLRB.
Lawrence M. Cohen, Chicago, Ill., for Linden Lumber Division, Summer & Co.
Laurence Gold, Washington, D.C., for respondent Unions.
Mr. Justice DOUGLAS delivered the opinion of the Court.
1
These cases present a question expressly reserved in NLRB v. Gissel Packing Co., 395 U.S. 575, 595, 601 n. 18, 89 S.Ct. 1918, 1930, 1933, 23 L.Ed.2d 547 (1969).
2
In Linden respondent union obtained authorization cards from a majority of petitioner's employees and demanded that it be recognized as the collective-bargaining representative of those employees. Linden said it doubted the union's claimed majority status and suggested the union petition the Board for an election. The union filed such a petition with the Board but later withdrew it when Linden declined to enter a consent election agreement or abide by an election, on the ground that respondent union's organizational camaign had been improperly assisted by company supervisors. Respondent union thereupon renewed its demand for collective bargaining; and again Linden declined, saying that the union's claimed membership had been improperly influenced by supervisors. Thereupon respondent union struck for recognition as the bargaining representative and shortly filed a charge of unfair labor practice against Linden based on its refusal to bargain.
3
There is no charge that Linden engaged in an unfair labor practice1 apart from its refusal to bargain. The Board held that Lineden should not be guilty of an unfair labor practice2 solely on the basis 'of its refusal to accept evidence of majority status other than the results of a Board election.' 190 N.L.R.B. 718, 721 (1971).
4
In Wilder3 there apparently were 30 employees in the plant, and the union with 11 signed and two unsigned authorization cards requested recognition as the bargaining agent for the company's production and maintenance employees. Of the 30 employees 18 were in the production and maintenance unit which the Board found to be appropriate for collective bargaining. No answer was given by the employer, Wilder, and recognitional picketing began. The request was renewed when the two unsigned cards were signed, but Wilder denied recognition. Thereupon the union filed unfair labor practice charges against Wilder. A series of Board decisions and judicial decisions, not necessary to recapitalate here, consumed about seven years until the present decision by the Court of Appeals.4 The Board made the same ruling as respects Wilder as it did in Linden's case. See 198 N.L.R.B. No. 123 (1972). On petitions for review the Court of Appeals reversed. 159 U.S.App.D.C. 228, 487 F.2d 1099 (1973). We reverse the Court of Appeals.
5
In Gissel we held that an employer who engages in 'unfair' labor practices "likely to destroy the union's majority and seriously impede the election" may not insist that before it bargains the union get a secret ballot election. 395 U.S., at 600, 89 S.Ct., at 1933. There were no such unfair labor practices here, nor had the employer in either case agreed to a voluntary settlement of the dispute and then reneged. As noted, we reserved in Gissel the questions 'whether, absent election interference by an employer's unfair labor practices, he may obtain an election only if he petitions for one himself; whether, if he does not, he must bargain with a card majority if the Union chooses not to seek an election; and whether, in the latter situation, he is bound by the Board's ultimate determination of the card results regardless of his earlier good faith doubts, or whether he can still insist on a Union-sought election if he makes an affirmative showing of his positive reasons for believing there is a representation dispute.' Id., at 601 n. 18, 89 S.Ct., at 1933.
6
We recognized in Gissel that while the election process had acknowledged superiority in ascertaining whether a union has majority support, cards may 'adequately reflect employee sentiment.' Id., at 603, 89 S.Ct., at 1933.
7
Generalizations are difficult; and it is urged by the unions that only the precise facts should dispose of concrete cases. As we said, however, in Gissel, the Board had largely abandoned its earlier test that the employer's refusal to bargain was warranted, if he had a goodfaith doubt that the union represented a majority. A different approach was indicated. We said:
8
'(A)n employer is not obligated to accept a card check as proof of majority status, under the Board's current practice, and he is not required to justify his insistence on an election by making his own investigation of employee sentiment and showing affirmative reasons for doubting the majority status. See Aaron Brothers, 158 N.L.R.B. 1077, 1078. If he does make an investigation, the Board's recent cases indicate that reasonable polling in this regard will not always be termed violative of § 8(a)(1) if conducted in accordance with the requirements set out in Struksnes Construction Co., 165 N.L.R.B. (1062), 65 L.R.R.M. 1385 (1967). And even if an employer's limited interrogation is found violative of the Act, it might not be serious enough to call for a bargaining order. See Aaron Brothers, supra; Hammond & Irving, Inc., 154 N.L.R.B. 1071 (1965). As noted above, the Board has emphasized that not 'any employer conduct found violative of Section 8(a)(1) of the Act, regardless of its nature or gravity, will necessarily support a refusal-to-bargain finding,' Aaron Brothers, supra, at 1079.' 295 U.S., at 609 610, 89 S.Ct., at 1937—1938.
9
In the present cases the Board found that the employers 'should not be found guilty of a violation of Section 8(a)(5) solely upon the basis of (their) refusal to accept evidence of majority status other than the results of a Board election.' 190 N.L.R.B., at 721; see 198 N.L.R.B., at 998. The question whether the employers had good reasons or poor reasons was not deemed relevant to the inquiry. The Court of Appeals concluded that if the employer had doubts as to a union's majority status, it could and should test out its doubts by petitioning for an election. It said:
10
'While we have indicated that cards alone, or recognitional strikes and ambiguous utterances of the employer, do not necessarily provide such 'convincing evidence of majority support' so as to require a bargaining order, they certainly create a sufficient probability of majority support as to require an employer asserting a doubt of majority status to resolve the possibility through a petition for an election, if he is to avoid both any duty to bargain and any inquiry into the actuality of his doubt.' 159 U.S.App.D.C., at 240, 487 F.2d, at 1111.
11
To take the Board's position is not to say that authorization cards are wholly unreliable as an indication of employee support of the union. An employer concededly may have valid objections to recognizing a union on that basis. His objection to cards may, of course, mask his opposition to unions. On the other hand he may have rational, good-faith grounds for distrusting authorization cards in a given situation. He may be convinced that the fact that a majority of the employees strike and picket does not necessarily establish that they desire the particular union as their representative. Fear may indeed prevent some from crossing a picket line; or sympathy for strikers, not the desire to have the particular union in the saddle, may influence others. These factors make difficult an examination of the employer's motive to ascertain whether it was in good faith. To enter that domain is to reject the approval by Gissel of the retreat whih the Board took from its 'good faith' inquiries.
12
The union which is faced with an unwilling employer has two alternative remedies under the Board's decision in the instant cases. It can file for an election; or it can press unfair labor practice charges against the employer under Gissel. The later alternative promises to consume much time. In Linden the time between filing the charge and the Board's ruling was about 4 1/2 years; in Wilder, about 6 1/2 years. The Board's experience indicates that the median time in a contested case is 388 days. Gissel, 395 U.S., at 611 n. 30, 89 S.Ct., at 1938. On the other hand the median time between the filing of the petition for an election and the decision of the Regional Director is about 4k days.5 In terms of getting on with the problems of inaugurating regimes of industrial peace, the policy of encouraging secret elections under the Act is favored. The question remains—should the burden be on the union to ask for an election or should it be the responsibility of the employer?
13
The Court of Appeals concluded that since Congress in 1947 authorized employers to file their own representation petitions by enacting § 9(c)(1)(B),6 the burden was on them. But the history of that provision indicates it was aimed at eliminating the discrimination against employers which had previously existed under the Board's prior rules, permitting employers to petition for an election only when confronted with claims by two or more unions.7 There is no suggestion that Congress wanted to place the burden of getting a secret election on the employer.
14
'Today an employer is faced with this situation.
15
A man comes into his officer and says, 'I represent your employees. Sign this agreement, or we strike towmorrow.' Such instances have occurred all over the United States. The employer has no way in which to determine whether this man really does represent his employees or does not. The bill gives him the right to go to the Board under those circumstances, and say, 'I want an election. I want to know who is the bargaining agent for my employees." 93 Cong.Rec. 3838 (1947) (remarks of Senator Taft).
16
Our problem is not one of picking favorites but of trying to find the congressional purpose by examining the statutory and administrative interpretations that incline one way or another. Large issues ride on who takes the initiative. A common issue is, what should be the representative unit? In Wilder the employer at first took the position that the unit should be one of 30 employees. If it were 18, as the union claimed (or even 25 as the employer later argued), the union with its 13 authorization cards (assuming them to be valid) would have majority. If the unit were 30, the union would be out of business.
17
Section 9(c)(1)(B) visualizes an employer faced with a claim by individuals or unions 'to be recognized as the representative defined in § 9(a).'8 That question of representation is raised only by a claim that the applicant represents a majority of employees, 'in a unit appropriate for such purposes.' § 9(a). If there is a significant discrepancy between the unit which the employer wants and the unit for which the union asked recognition, the Board will dismiss the employer's petition. Aerojet-General Corp., 185 N.L.R.B. 794 (1970); Bowman Bldg. Products Div., 170 N.L.R.B. 312 (1968); Amperex Electronic Corp., 109 N.L.R.B. 353 (1954); Wm. Wood Bakery, Inc., 97 N.L.R.B. 122 (1951). In that event the union, if it desired the smaller unit, would have to file its own petition, leaving the employer free to contest the appropriateness of that unit. The Court of Appeals thought that if the employer were required to petition the Board for an election, the litigable issues would be reduced. The recurring conflict over what should be the appropriate bargaining unit, coupled with the fact that if the employer asks for a unit which the union opposes his election petition is dismissed, is answer enough.
18
The Board has at least some expertise in these matters and its judgment is that an employer's petition for an election, though permissible, is not the required course. It points out in its brief here that an employer wanting to gain delay can draw a petition to elicit protests by the union, and the thought that an employer petition would obviate litigation over the sufficiency of the union's showing of interest is in its purview apparently not well taken. A union petition to be sure must be backed by a 30% showing of employee interest. But the sufficiency of such a showing is not litigable by the parties.9
19
In light of the statutory scheme and the practical administrative procedural questions involved, we cannot say that the Board's decision that the union should go forward and ask for an election on the employer's refusal to recognize the authorization cards was arbitrary and capricious or an abuse of discretion.
20
In sum, we sustain the Board in holding that, unless an employer has engaged in an unfair labor practice that impairs the electoral process,10 a union with authorization cards purporting to represent a majority of the employees, which is refused recognition, has the burden of taking the next step in invoking the Board's election procedure.
21
Reversed.
22
Mr. Justice STEWART, with whom Mr. Justice WHITE, Mr. Justice MARSHALL, and Mr. Justice POWELL join, dissenting.
23
Under a recently adopted Board policy, an employer who does not commit independent unfair labor practices prejudicing the holding of a fair election has an absolute right to refuse to bargain with a union selected by a majority of his employees until that union petitions for and wins a Board-supervised election. I cannot agree with the Court's conclusion that this Board policy constitutes a permissible interpretation of §§ 8(a)(5) and 9(a) of the Act.1 Accordingly, I would affirm the judgment of the Court of Appeals remanding the case to the Board for further proceedings, although my views are somewhat at variance with those expressed in the Court of Appeals' opinion.
24
Section 9(a) expressly provides that the employees' exclusive bargaining representative shall be the union 'designated or selected' by a majority of the employees in an appropriate unit. Neither § 9(a) nor § 8(a)(5), which makes it an unfair labor practice for an employer to refuse to bargain with the representative of his employees, specifies how that representative is to be chosen. The language of the Act thus seems purposefully designed to impose a duty upon an employer to bargain whenever the union representative presents convincing evidence of majority support, regardless of the method by which that support is demonstrated. And both the Board and this Court have in the past consistently interpreted §§ 8(a)(5) and 9(a) to mean exactly that. A 'union did not have to be certified as the winner of a Board election to invoke a bargaining obligation; it could establish majority status by other means under the unfair labor practice provision of § 8(a)(5)—by showing convincing support, for instance, by a union-called strike or strike vote, or, as here, by possession of cards signed by a majority of the employees authorizing the union to represent them for collective bargaining purposes.' NLRB v. Gissel Packing Co., 395 U.S. 575, 597, 89 S.Ct. 1918, 1931, 23 L.Ed.2d 547 (footnote omitted).2
25
As the Court recognized in Gissel, the 1947 Taft-Hartley amendments strengthen this interpretation of the Act. One early version of the House bill would have amended the Act to permit the Board to find an employer unfair labor practice for refusing to bargain with a union only if the union was 'currently recognized by the employer or certified as such (through an election) under section 9.' § 8(a)(5) of H.R. 3020, 80th Cong., 1st Sess. The proposed change, which would have eliminated any method of requiring employer recognition of a union other than a Board-supervised election, was rejected in conference. H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess., 41. After rejection of the proposed House amendment, the House Conference Report explicitly stated that § 8(a)(5) was intended to follow the provisions of 'existing law.' Ibid. And 'existing law' unequivocally recognized that a union could establish majority status and thereby impose a bargaining obligation on an unwilling employer by means other than petitioning for and winning a Board-supervised election. NLRB v. Gissel Packing Co., supra, at 596—598, 89 S.Ct. 1918, 1930—1932.
26
The 1947 amendments, however, did provide an alternative to immediate union recognition for an employer faced with a union demand to bargain on behalf of his employees. Section 9(c)(1)(B), added to the Act in 1947, provides that an employer, alleging that one or more individuals or labor organizations have presented a claim to be recognized as the exclusive representative of his employees, may file a petition for a Board-supervised representation election.
27
This section, together with §§ 8(a)(5) and 9(a), provides clear congressional direction as to the proper approach to the situation before us. When an employer is faced with a demand for recognition by a union that has presented convincing evidence of majority support, he may elect to follow one of four alternatives. First, he is free to recognize the union and thereby satisfy his § 8(a)(5) obligation to bargain with the representatives 'designated or selected' by his employees.3 Second, he may petition for a Board-supervised election, pursuant to § 9(c)(1)(B). NLRB v. Gissel Packing Co., supra, at 599, 89 S.Ct., at 1932. Third, rather than file his own election petition, the employer can agree to be bound by the results of an expedited consent election ordered after the filing of a union election petition. See 29 CFR § 102.62. Finally, the employer can refuse to recognize the union, despite its convincing evidence of majority support, and also refuse either to petition for an election or to consent to a union-requested election. In this event, however, the Act clearly provides that the union may charge the employer with an unfair labor practice under § 8(a)(5) for refusing to bargain collectively with the representatives of his employees. If the General Counsel issues a complaint and the Board determines that the union in fact represents a majority of the employees, the Board must issue an order directing the employer to bargain with the union. See, e.g., NLRB v. Dahlstrom Metallic Door Co., 112 F.2d 756; (CA2) cf. NLRB v. Gissel Packing Co., supra, 395 U.S., at 595—600, 89 S.Ct., at 1930—1933.
28
The Court offers two justifications for its approval of the new Board practice which, disregarding the clear language of §§ 8(a)(5) and 9(a), requires an employer to bargain only with a union certified as bargaining representative after a Board-supervised election conducted upon the petition of the union.4
29
First, it is suggested that to require the Board under some circumstances to find a § 8(a)(5) violation when an employer refuses to bargain with the noncertified union supported by a majority of his employees would compel the Board to re-enter the domain of subjective 'good faith' inquiries. Ante, at 306. This fear is unwarranted. It is true that early in the administration of the Act it was held that an employer could lawfully refuse to bargain if he had a good-faith doubt as to the union's majority status, even if in fact the union did represent a majority of the employees. See NLRB v. Gissel Packing Co., supra, 395 U.S., at 597 n. 11, 89 S.Ct., at 1931. NLRB v. Remington Rand, Inc., 94 F.2d 862, 868 (CA2). But it was recognized at the same time that a union could present 'convincing evidence of majority support' that 'could not in good faith be ignored.' NLRB v. Dahlstrom Metallic Door Co., 112 F.2d 756, 757 (CA2); see NLRB v. Gissel Packing Co., supra, 395 U.S., at 596, 89 S.Ct., at 1930; NLRB v. Remington Rand, Inc., supra, 94 F.2d, at 868.
30
Within broad limits imposed by the Act itself, the Board may use its understanding of the policies and practical considerations of the Act's administration to determine the circumstances under which an employer must take evidence of majority support as 'convincing.' Cf. NLRB v. Insurance Agents' International Union, 361 U.S. 477, 499, 80 S.Ct. 419, 432, 4 L.Ed.2d 454; NLRB v. Truck Drivers Union, 353 U.S. 87, 96, 77 S.Ct. 643, 647, 1 L.Ed.2d 676. The Act in no way requires the Board to define 'convincing evidence' in a manner that reintroduces a subjective test of the employer's good faith in refusing to bargain with the union. If the Board continues to believe, as it has in the recent past, that it is unworkable to adopt any standard for determining when an employer has breached his duty to bargain that incorporates a subjective element. see NLRB v. Gissel Packing Co., 395 U.S., at 592—594, 89 S.Ct., at 1928—1930, it may define 'convincing evidence of majority support' solely by reference to objective criteria—for example, by reference to 'a union-called strike or strike vote, or, as here, by possession of cards signed by a majority of the employees . . ..' Id., at 597,5 89 S.Ct., at 1931.
31
Even with adoption of such an objective standard for measuring 'convincing evidence of majority support,' the employer's 'subjective' doubts would be adequately safeguarded by § 9(c)(1)(B)'s assurance of the right to file his own petition for an election. Despite the Board's broad discretion in this area, however, the Act simply does not permit the Board to adopt a rule that avoids subjective inquiries by eliminating entirely all inquiries into an employer's obligation to bargain with a noncertified union selected by a majority of his employees.
32
The second ground upon which the Court justifies its approval of the Board's new practice is that it serves to remove from the employer the burden of obtaining a Board-supervised election. Ante, at 307. Although I agree with the Court that it would be improper to impose such an obligation on an employer, the Board's new policy is not necessary to eliminate such a burden.
33
The only employer obligation relevant to this case, apart from the requirement that the employer not commit independent unfair labor practices that would prejudice the holding of a fair election, is the one imposed by §§ 8(a)(5) and 9(a) of the Act: an employer has a duty to bargain collectively with the representative designated or selected by his employees. When an employer is confronted with 'convincing evidence of majority support,' he has the option of petitioning for an election or consenting to an expedited union-petitioned election. As the Court explains, § 9(c)(1)(B) does not require the employer to exercise this option. If he does not, however, and if he does not voluntarily recognize the union, he must take the risk that his conduct will be found by the Board to constitute a violation of his § 8(a)(5) duty to bargain. In short, petitioning for an election is not an employer obligation; it is a device created by Congress for the employer's self-protection, much as Congress gave unions the right to petition for elections to establish their majority status but deliberately chose not to require a union to seek an election before it could impose a bargaining obligation on an unwilling employer. NLRB v. Gissel Packing Co., supra, 395 U.S., at 598—599, 89 S.Ct., at 1932—1933.6
34
The language and history of the Act clearly indicate that Congress intended to impose upon an employer the duty to bargain with a union that has presented convincing evidence of majority support, even though the union has not petitioned for and won a Board-supervised election. 'It is not necessary for us to justify the policy of Congress. It is enough that we find it in the statute. That policy cannot be defeated by the Board's policy.' Colgate-Palmolive-Peet Co. v. NLRB, 338 U.S. 355, 363, 70 S.Ct. 166, 170, 94 L.Ed. 161. Accordingly, I would affirm the judgment of the Court of Appeals remanding the case to the Board, but for further proceedings consistent with the views expressed in this opinion.
1
At the conclusion of the strike Linden refused to reinstate two employees it alleged to be supervisors and therefore unprotected by the Act. The Board found that to be an unfair labor practice. Thereupon Linden reinstated the two employees and this issue was not tendered to the court below. 159 U.S.App.D.C. 228, 234, 487—F.2d 1099, 1105 (1973).
2
Section 8(a)(5) of the National Labor Relations Act provides:
'(a) It shall be an unfair labor practice for an employer—
'(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a).' 49 Stat. 453, as amended, 61 Stat. 141, 29 U.S.C. § 158(a)(5).
3
See n. 4, infra.
4
The long series of rulings is described in the opinion of the Court of Appeals, 159 U.S.App.D.C., at 229—232, 487 F.2d, at 1100—1103. Wilder did not petition for certiorari. No. 73—1234, which we granted, is the petition of the Board, but for convenience it is referred to herein as the Wilder case.
5
Thirty-seventh Annual Report of the National Labor Relations Board 13 (1972).
6
Section 9(c)(1)(B) provides:
'(1) Whenever a petition shall have been filed, in accordinace with such regulations as may be prescribed by the Board—
'(B) by an employer, alleging that one or more individuals or labor organizations have presented to him a claim to be recognized as the representative defined in section 9(a); 'the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice. Such hearing may be conducted by an officer or employee of the regional office, who shall not make any recommendations with respect thereto. If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof.' 61 Stat. 144, 29 U.S.C. § 159(c) (1)(B).
7
S.Rep.No.105, 80th Cong., 1st Sess., 10—11 (1947); 93 Cong.Rec. 3838(1947).
8
Section 9(a) provides:
'Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment . . ..' 49 Stat. 453, as amended, 61 Stat. 143, 29 U.S.C. § 159(a).
9
NLRB v. Savair Mfg. Co., 414 U.S. 270, 287 n. 6, 94 S.Ct. 495, 503, 38 L.Ed.2d 495 (1973) (White, J., dissenting).
10
We do not reach the question whether the same result obtains if the employer breaches his agreement to permit majority status to be determined by means other than a Board election. See Snow & Sons, 134 N.L.R.B. 709 (1961), enf'd, 308 F.2d 687 (CA9 1962). In the instant cases the Board said that the employers and the unions 'never voluntarily agreed upon any mutually acceptable and legally permissible means, other than a Board-conducted election, for resolving the issue of union majority status.' 190 N.L.R.B., at 721; see 198 N.L.R.B., at 998.
1
Section 9(a) of the Act, 49 Stat. 453, as amended, 61 Stat. 143, 29 U.S.C. § 159(a), provides that '(r)epresentatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees . . ..' Section 8(a)(5), 29 U.S.C. § 158(a)(5), makes it an unfair labor practice for an employer 'to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a).'
2
For example, in United Mine Workers v. Arkansas Flooring Co., 351 U.S. 62, 69, 76 S.Ct. 559, 563, 100 L.Ed. 941, the Court stated that where the union had obtained signed authorization cards from a majority of the employees, denial of recognition of the union by the employer would have violated § 8(a)(5) in the absence of any bona fide dispute as to the existence of the required majority of eligible employees.
3
If despite its convincing evidence of majority support the union in fact has not attained majority status, a grant of exclusive recognition to the minority union by the employer would constitute unlawful support in violation of §§ 8(a)(1) and 8(a)(2) of the Act. International Ladies' Garment Workers v. NLRB, 366 U.S. 731, 737—738, 81 S.Ct. 1603, 1607—1608, 6 L.Ed.2d 762. This result, however, imposes no real hardship on the employer or the union since it merely requires that recognition be withheld until a Boardconducted election results in majority selection of a representative. Id., at 739, 81 S.Ct., at 1608. In addition, an employer concerned about the possibility of recognizing a minority union may always petition for an election pursuant to § 9(c)(1)(B) prior to recognition.
4
The Board, of course, continues to permit an employer voluntarily to recognize a noncertified union supported by a majority of his employees. But under the Board rule approved by the Court, an employer has no obligation to do so under the Act.
5
I do not attempt to indicate how the Board should specify standards as to what may constitute 'convincing evidence.' In view of its experience and expertise, the Board is better qualified than we are to undertake the specifics of this task. I do suggest that the support of a bare majority of employees, whether demonstrated by authorization cards, a strike, or a strike vote, would not necessarily constitute convincing evidence. Given the possibility of undue peer pressure or even coercion in personal card solicitation or nonsecret strike votes, a higher level of objective dependability might be obtained by requiring a greater show of support than a bare majority.
6
Although the Court reiterates the generally acknowledged view that elections are the preferred method for determining whether a union has majority support, it suggests that an election held as a result of an employer petition or an expedited election to which the employer has consented is somehow less desirable than a union-requested election. Ante, at 309. No such distinction is possible. The advantages of a secret election to determine the true desires of employees with respect to the selection of a collective-bargaining representative, ensuring a choice that is free from the influences of mass psychology, see Brooks v. NLRB, 348 U.S. 96, 100, 75 S.Ct. 176, 179, 99 L.Ed. 125, are entirely unrelated to whether the union or the employer has initiated the election proceedings.
| 67
|
419 U.S. 256
95 S.Ct. 379
42 L.Ed.2d 430
Maurice SCHICK, Petitioner,v.George J. REED, Chairman of the United States Board of Parole, et al.
No. 73—5677.
Argued Oct. 23, 1974.
Decided Dec. 23, 1974.
Syllabus
Petitioner, sentenced to death, under Art. 118 of the Uniform Code of Military Justice, by a court-martial for murder, attacked the validity of a Presidential commutation to life imprisonment (under which petitioner had served 20 years) conditioned on petitioner's never being paroled. The District Court granted respondents' motion for summary judgment. The Court of Appeals affirmed, additionally rejecting petitioner's contention that this Court's intervening decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, required that petitioner be resentenced to a life term with the possibility of parole, the alternative punishment for murder under Art. 118. Held: The conditional commutation of petitioner's death sentence was within the President's powers under Art. II, § 2, cl. 1, of the Constitution to 'grant Reprieves and Pardons for Offenses against the United States.' Pp. 260—268.
(a) The executive pardoning power under the Constitution, which has consistently adhered to the English common-law practice, historically included the power to commute sentences on conditions not specifically authorized by statute. United States v. Wilson, 7 Pet. 150, 8 L.Ed. 640; Ex parte Wells, 18 How. 307, 15 L.Ed. 421. Pp. 260—266.
(b) Since the pardoning power derives from the Constitution alone, it cannot be modified, abridged, or diminished by any statute, including Act. 118, and Furman v. Georgia, supra, did not affect the conditional commutation of petitioner's sentence. Pp. 266—268.
157 U.S.App.D.C. 263, 483 F.2d 1266, affirmed.
Homer E. Moyer, Jr., Washington, D.C., for petitioner, pro hac vice, by special leave of Court.
Louis F. Claiborne, Washington, D.C., for respondents.
Mr. Chief Justice BURGER, delivered the opinion of the Court.
1
In 1960, the President, acting under the authority of Art. II, § 2, cl. 1, of the Constitution, commuted petitioner Maurice L. Schick's sentence from death to life imprisonment, subject to the condition that he would not thereafter be eligible for parole. The petitioner challenges the validity of the condition, and we granted certiorari to determine the enforceability of that commutation as so conditioned.
2
The pertinent facts are undisputed. In 1954 petitioner, then a master sergeant in the United States Army stationed in Japan, was tried before a court-martial for the brutal murder of an eight-year-old girl. He admitted the killing, but contended that he was insane at the time that he committed it. Medical opinion differed on this point. Defense experts testified that petitioner could neither distinguish between right and wrong nor adhere to the right when he killed the girl; a board of psychiatrists testifying on behalf of the prosecution concluded that petitioner was suffering from a nonpsychotic behavior disorder and was mentally aware of and able to control his actions. The court-martial rejected petitioner's defense and he was sentenced to death on March 27, 1954, pursuant to Art. 118 of the Uniform Code of Military Justice, 10 U.S.C. § 918. The conviction and sentence were affirmed by an Army Board of Review and, following a remand for consideration of additional psychiatric reports, by the Court of Military Appeals. 7 U.S.C.M.A. 419, 22 C.M.R. 209 (1956).
3
The case was then forwarded to President Eisenhower for final review as required by Art. 71(a) of the UCMJ, 10 U.S.C. § 871(a). The President acted on March 25, 1960:
4
'(P)ursuant to the authority vested in me as President of the United States by Article II, Section 2, Clause 1, of the Constitution, the sentence to be put to death is hereby commuted to dishonorable discharge, forfeiture of all pay and allowances becoming due on and after the date of this action, and confinement at hard labor for the term of his (petitioner's) natural life. This commutation of sentence is expressly made on the condition that the said Maurice L. Schick shall never have any rights, privileges, claims or benefits arising under the parole and suspension or remission of sentence laws of the United States and the regulations promulgated thereunder governing Federal prisoners confined in any civilian or military penal institution (18 U.S.C. 4201 et seq., 10 USC 3662 et seq., 10 USC 871, 874), or any acts amendatory or supplementary thereof.' App. 35.
5
The action of the President substituted a life sentence for the death sentence imposed in 1954, subject to the conditions described in the commutation. Petitioner was accordingly discharged from the Army and transferred to the Federal Penitentiary at Lewisburg, Pa. He has now served 20 years of his sentence. Had he originally received a sentence of life imprisonment he would have been eligible for parole consideration in March 1969; the condition in the President's order of commutation barred parole at any time.
6
In 1971, while appeals challenging the validity of the death penalty were pending in this Court, petitioner filed suit in the United States District Court for the District of Columbia to require the members of the United States Board of Parole to consider him for parole. The District Court granted the Board of Parole's motion for summary judgment and the Court of Appeals affirmed, unanimously upholding the President's power to commute a sentence upon condition that the prisoner not be paroled. In addition, it rejected by a 2—1 vote petitioner's argument that Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, decided on June 29, 1972, requires that he be resentenced to a simple life term, the alternative punishment for murder under Art. 118. 157 U.S.App.D.C. 263, 483 F.2d 1266. We affirm the judgment of the Court of Appeals.
7
* When the death sentence was imposed in 1954 it was, as petitioner concedes, valid under the Constitution of the United States and subject only to final action by the President. Absent the commutation of March 25, 1960, the sentence could, and in all probability would, have been carried out prior to 1972. Only the President's action in commuting the sentence under his Art. II powers, on the conditions stipulated, prevented execution of the sentence imposed by the court-martial.
8
The essence of petitioner's case is that, in light of this Court's holding in Furman v. Georgia, supra, which he could not anticipate, he made a 'bad bargain' by accepting a no-parole condition in place of a death sentence. He does not cast his claim in those terms, of course. Rather, he argues that the conditions attached to the commutation put him in a worse position than he would have been in had he contested his death sentence—and remained alive—until the Furman case was decided 18 years after that sentence was originally imposed.
9
It is correct that pending death sentences not carried out prior to Furman were thereby set aside without conditions such as were attached to petitioner's commutation. However, petitioner's death sentence was not pending in 1972 because it had long since been commuted. The question here is whether Furman must now be read as nullifying the condition attached to that commutation when it was granted in 1960. Alternatively, petitioner argues that even in 1960 President Eisenhower exceeded his powers under Art. II by imposing a condition not expressly authorized by the Uniform Code of Military Justice.
10
In sum, petitioner's claim gives rise to three questions: First, was the conditional commutation of his death sentence lawful in 1960; second, if so, did Furman retroactively void such conditions; and third, does that case apply to death sentences imposed by military courts where the asserted vagaries of juries are not present as in other criminal cases? Our disposition of the case will make it unnecessary to reach the third question.
II
11
The express power of Art. II, § 2, cl. 1, from which the Presidential power to commute criminal sentences derives, is to 'grant Reprieves and Pardons . . . except in Cases of Impeachment.' Although the authors of this clause surely did not act thoughtlessly, neither did they devote extended debate to its meaning. This can be explained in large part by the fact that the draftsmen were well acquainted with the English Crown authority to alter and reduce punishments as it existed in 1787. The history of that power, which was centuries old, reveals a gradual contraction to avoid its abuse and misuse.1 Changes were made as potential or actual abuses were perceived; for example, Parliament restricted the power to grant a pardon to one who transported a prisoner overseas to evade the Habeas Corpus Act, because to allow such pardons would drain the Great Writ of its vitality. There were other limits, but they were few in number and similarly specifically defined.2
12
At the time of the drafting and adoption of our Constitution it was considered elementary that the prerogative of the English Crown could be exercised upon conditions:
13
'It seems agreed, That the king may extend his mercy on what terms he pleases, and consequently may annex to his pardon any condition that he thinks fit, whether precedent or subsequent, on the performance whereof the validity of the pardon will depend.' 2 W. Hawkins, Pleas of the Crown 557 (6th ed. 1787).
14
Various types of conditions, both penal and nonpenal in nature, were employed.3 For example, it was common for a pardon or commutation to be granted on condition that the felon be transported to another place, and indeed our own Colonies were the recipients of numerous subjects of 'banishment.' This practice was never questioned despite the fact that British subjects generally could not be forced to leave the realm without an Act of Parliament and banishment was rarely authorized as a punishment for crime. The idea later developed that the subject's consent to transportation was necessary, but in most cases he was simply 'agreeing' that his life should be spared. Thus, the requirement of consent was a legal fiction at best; in reality, by granting pardons or commutations conditional upon banishment, the Crown was exercising a power that was the equivalent and completely independent of legislative authorization.4 11 W. Holdsworth, History of English Law 569—575 (1938). In short, by 1787 the English prerogative to pardon was unfettered except for a few specifically enumerated limitations.
15
The history of our executive pardoning power reveals a consistent pattern of adherence to the English common-law practice. The records of the Constitutional Convention, as noted earlier, reveal little discussion or debate on § 2, cl. 1, of Art. II. The first report of the Committee on Detail proposed that the pertinent clause read: 'He (the President) shall have power to grant reprieves and pardons; but his pardon shall not be pleadable in bar of an impeachment.'5 This limitation as to impeachments tracked a similar restriction upon the English royal prerogative which existed in 1787. 4 W. Blackstone, Commentaries *399—400. An effort was made in the Convention to amend what finally emerged as § 2, cl. 1, and is reflected in James Madison's Journal for August 25, 1787, where the following note appears:
16
'Mr. Sherman moved to amend the 'power to grant reprieves and pardons' so as to read 'to grant reprieves until the next session of the Senate, and pardons with consent of the Senate." 2 M. Farrand, Records of the Federal Convention of 1787, p. 419 (1911).
17
The proposed amendment was rejected by a vote of 8—1. Ibid. This action confirms that, as in England in 1787, the pardoning power was intended to be generally free from legislative control.
18
Later Edmund Randolph proposed to add the words "except cases of treason." Madison's description of Randolph's argument reflects familiarity with the English form and practice: 'The prerogative of pardon in these (treason) cases was too great a trust.' Id., at 626 (emphasis added). Randolph's proposal was rejected by a vote of 8—2, and the clause was adopted in its present form. Thereafter, Hamilton's Federalist No. 69 summarized the proposed § 2 powers, including the power to pardon, as 'resembl(ing) equally that of the King of Great-Britain and the Governor of New-York.' The Federalist No. 69, p. 464 (J. Cooke ed. 1961).6
19
We see, therefore, that the draftsmen of Art. II, § 2, spoke in terms of a 'prerogative' of the President, which ought not be 'fettered or embarrassed.' In light of the English common law from which such language was drawn, the conclusion is inescapable that the pardoning power was intended to include the power to commute sentences on conditions which do not in themselves offend the Constitution, but which are not specifically provided for by statute.
20
The few cases decided in this area are consistent with the view of the power described above. In United States v. Wilson, 7 Pet. 150, 8 L.Ed. 640 (1833), this Court was confronted with the question of whether a pardon must be pleaded in order to be effective. Mr. Chief Justice Marshall held for the Court that it must, because that was the English common-law practice:
21
'As this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it.' Id., at 160, 8 L.Ed. 640.
22
Similarly, in Ex parte Wells, 18 How. 307, 15 L.Ed. 421 (1856), the petitioner had been convicted of murder and sentenced to be hanged. President Fillmore granted a pardon "upon condition that he be imprisoned during his natural life; that is, the sentence of death is hereby commuted to imprisonment for life in the penitentiary of Washington." Id., at 308, 15 L.Ed. 421. Later, Wells sought release by habeas corpus, contending that the condition annexed to the pardon and accepted by him was illegal. His argument was remarkably similar to that made by petitioner here:
23
'(A) President granting such a pardon assumes a power not conferred by the constitution—that he legislates a new punishment into existence, and sentences the convict to suffer it; in this way violating the legislative and judicial powers of the government, it being the province of the first, to enact laws for the punishment of offences . . ., and that of the judiciary, to sentence . . . according to them.' Id., at 309, 15 L.Ed. 421.
24
However, the Court was not persuaded. After an extensive review of the English common law and that of the States, which need not be repeated here, it concluded:
25
'The real language of (Art. II § 2, cl. 1) is general, that is, common to the class of pardons, or extending the power to pardon to all kinds of pardons known in the law as such, whatever may be their denomination. We have shown that a conditional pardon is one of them. . . .
26
'In this view of the constitution, by giving to its words their proper meaning, the power to pardon conditionally is not one of inference at all, but one conferred in terms.
27
'. . . (T)he power to offer a condition, without ability to enforce its acceptance, when accepted by the convict, is the substitution, by himself, of a lesser punishment than the law has imposed upon him, and he cannot complain if the law executes the choice he has made.
28
". . . And a man condemned to be hung cannot be permitted to escape the punishment altogether, by pleading that he had accepted his life by duress per minas." Id., at 314—315, 15 L.Ed. 421.
29
In other words, this Court has long read the Constitution as authorizing the President to deal with individual cases by granting conditional pardons. The very essence of the pardoning power is to treat each case individually.
30
The teachings of Wilson and Wells have been followed consistently by this Court. See, e.g., Ex parte Grossman, 267 U.S. 87, 45 S.Ct. 332, 69 L.Ed. 527 (1925) (upholding a Presidential pardon of a contempt of court against an argument that it violated the principle of separation of powers); Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366 (1867). Additionally, we note that Presidents throughout our history as a Nation have exercised the power to pardon or commute sentences upon conditions that are not specifically authorized by statute. Such conditions have generally gone unchallenged and, as in the Wells case, attacks have been firmly rejected by the courts. See 41 Op.Atty.Gen. 251 (1955). These facts are not insignificant for our interpretation of Art. II, § 2, cl. 1, because, as observed by Mr. Justice Holmes: 'If a thing has been practiced for two hundred years by common consent, it will need a strong case' to overturn it. Jackman v. Rosenbaum Co., 260 U.S. 22, 31, 43 S.Ct. 9, 10, 67 L.Ed. 107 (1922).
III
31
A fair reading of the history of the English pardoning power, from which our Art. II, § 2, cl. 1, derives, of the language of that clause itself, and of the unbroken practice since 1790 compels the conclusion that the power flows from the Constitution alone, not from any legislative enactments, and that it cannot be modified, abridged, or diminished by the Congress. Additionally, considerations of public policy and humanitarian impulses support an interpretation of that power so as to permit the attachment of any condition which does not otherwise offend the Constitution. The plain purpose of the broad power conferred by § 2, cl. 1, was to allow plenary authority in the President to 'forgive' the convicted person in part or entirely, to reduce a penalty in terms of a specified number of years, or to alter it with conditions which are in themselves constitutionally unobjectionable. If we were to accept petitioner's contentions, a commutation of his death sentence to 25 or 30 years would be subject to the same challenge as is now made, i.e., that parole must be available to petitioner because it is to others. That such an interpretation of § 2, cl. 1, would in all probability tend to inhibit the exercise of the pardoning power and reduce the frequency of commutations is hardly open to doubt. We therefore hold that the pardoning power is an enumerated power of the Constitution and that its limitations, if any, must be found in the Constitution itself. It would be a curious logic to allow a convicted person who petitions for mercy to retain the full benefit of a lesser punishment with conditions, yet escape burdens readily assumed in accepting the commutation which he sought.
32
Petitioner's claim must therefore fail. The no-parole condition attached to the commutation of his death sentence is similar to sanctions imposed by legislatures such as mandatory minimum sentences or statutes otherwise precluding parole;7 it does not offend the Constitution. Similarly, the President's action derived solely from his Art. II powers; it did not depend upon Art. 118 of the UCMJ or any other statute fixing a death penalty for murder. It is not correct to say that the condition upon petitioner's commutation was 'made possible only through court-martial's imposition of the death sentence.' Post, at 269 270. Of course, the President may not aggravate punishment; the sentence imposed by statute is therefore relevant to a limited extent. But, as shown, the President has constitutional power to attach conditions to his commutation of any sentence. Thus, even if Furman v. Georgia applies to the military, a matter which we need not and do not decide it could not effect a conditional commutation which was granted 12 years earlier.
33
We are not moved by petitioner's argument that it is somehow 'unfair' that he be treated differently from persons whose death sentences were pending at the time that Furman was decided. Individual acts of clemency inherently call for discriminating choices because no two cases are the same. Indeed, as noted earlier petitioner's life was undoubtedly spared by President Eisenhower's commutation order of March 25, 1960. Nor is petitioner without further remedies since he may, of course, apply to the present President or future Presidents for a complete pardon, commutation to time served, or relief from the no-parole condition. We hold only that the conditional commutation of his death sentence was lawful when made and that intervening events have not altered its validity.
34
Affirmed.
35
Mr. Justice MARSHALL, with whom Mr. Justice DOUGLAS and Mr. Justice BRENNAN join, dissenting.
36
The Court today denies petitioner relief from the no-parole condition of his commuted death sentence, paying only lip service to our intervening decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Because I believe the retrospective application of Furman requires us to vacate petitioner's sentence and substitute the only lawful alternative life with the opportunity for parole, I respectfully dissent.
37
* The Court misconstrues petitioner retroactivity argument. Schick does not dispute the constitutional validity of the death penalty in 1954 under then-existing case law. Nor does he contend that he was under sentence of death1 in 1972 when the decision issued in Furman, invalidating 'the imposition and carrying out' of discretionary death sentences. Id., at 239, 92 S.Ct., at 2727. Rather, he argues that the retroactive application of Furman to his no-parole commutation is required because the imposition of the death sentence was the indispensable vehicle through which he became subject to his present sentence. In other words, the no-parole condition could not now exist had the court-martial before which Schick was tried not imposed the death penalty.
38
The relationship between the death sentence and the condition is clear. Article 118 of the Uniform Code of Military Justice (UCMJ)2 authorizes only two sentences for the crime of premeditated murder: death or life imprisonment which entails at least the possibility of parole. Confinement without possibility of parole is unknown to military law;3 it is not and has never been authorized for any UCMJ offense, 10 U.S.C. §§ 877—934; Manual for Courts-Martial, 34 Fed.Reg. 10502 (1969). In short, the penal restriction of the commutation was a creature of Presidential clemency made possible only through the court-martial's imposition of the death sentence.
39
The retroactivity of Furman is equally unclouded. The Court '(has) not hesitated' to give full retroactive effect to the Furman decision. Robinson v. Neil, 409 U.S. 505, 508, 93 S.Ct. 876, 877, 35 L.Ed.2d 29 (1973). See Stewart v. Massachusetts, 408 U.S. 845, 92 S.Ct. 2845, 33 L.Ed.2d 744 (1972); Marks v. Louisiana, 408 U.S. 933, 92 S.Ct. 2849, 33 L.Ed.2d 746 (1972); Walker v. Georgia, 408 U.S. 936, 92 S.Ct. 2845, 33 L.Ed.2d 754 (1972). The per curiam decision struck down both 'the imposition and the carrying out' of discretionary death sentences as cruel and unusual punishment in violation of the Eighth Amendment. 408 U.S., at 239, 92 S.Ct., at 2727. The opinion specifically held that the 'judgment . . . is . . . reversed insofar as it leaves undisturbed the death sentence imposed . . .' Id., at 240, 92 S.Ct., at 2727. The retroactive application of Furman results in more than the simple enjoining of execution; it nullifies the very act of sentencing. In effect a post-Furman court must ensure a prisoner the same treatment that he would have been afforded had the death penalty not been imposed initially.4
40
The full retroactivity of a constitutional ruling is aimed at the eradication of all adverse consequences of prior violations of that rule. We have recognized the importance of erasing 'root and branch' the adverse legal consequences, both direct and indirect, of prior constitutional violations. See, e.g., McConnell v. Rhay, 393 U.S. 2, 3, 89 S.Ct. 32, 33, 21 L.Ed.2d 2 (1968); Linkletter v. Walker, 381 U.S. 618, 639, 85 S.Ct. 1731, 1743, 14 L.Ed.2d 601 (1965). The effective operation of this procedure was demonstrated in the decisions on the right to counsel in state felony trials. See Pickelsimer v. Wainwright, 375 U.S. 2, 84 S.Ct. 80, 11 L.Ed.2d 41 (1963); Kitchens v. Smith, 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519 (1971); Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972).
41
Since Furman is fully retroactive petitioner's case should be simple to resolve. The terms of Art. 118 of the UCMJ provide that a person convicted of premeditated murder 'shall suffer death or imprisonment for life as a court-martial may direct.' A death sentence was imposed by the court-martial and affirmed by the Board of Review and the United States Court of Military Appeals, 7 U.S.C.M.A. 419, 22 C.M.R. 209 (1956). The death sentence so imposed was declared unconstitutional by Furman and is therefore null and void as a matter of law. The only legal alternative simple life imprisonment—must be substituted. Concomitantly, the adverse consequence of the death sentence—the no-parole condition of petitioner's 1960 commutation—must also be voided, as it exceeds the lawful alternative punishment that should have been imposed. Petitioner should now be subject to treatment as a person sentenced to life imprisonment on the date of his original sentence and eligible for parole.5
42
The Court today suggests that petitioner cannot claim any benefit from Furman because no death penalty was pending against him at the time of the decision. The 1960 commutation is touted as the panacea for the constitutional defects of petitioner's original sentence. Unfortunately, such is not the case.
43
The imposition of the death sentence was the indispensable vehicle through which petitioner became subject to his present sentence. The commutation of the sentence did not cure the constitutional disabilities of the punishment. A noted expert on the subject of Presidential clemency states:
44
'Unlike a pardon, a commutation does not absolve the beneficiary from most of the legal consequences of the offense.'6
45
Although petitioner is not under direct threat of the death sentence, 'he has suffered and continues to suffer the enhancement of punishment—the loss of his statutory right to be considered for parole—as a result of an illegally imposed death sentence.'7 The full retrospective application of Furman requires the eradication of this vestige of the prior constitutional violation. If petitioner had been granted stays of execution until Furman was decided, there is no doubt that his sentence would have to be vacated and a life sentence imposed instead. The situation should be no different simply because the Chief Executive commuted his sentence—in effect granting a permanent stay of execution. Nullification of the no-parole provision would relieve petitioner of this unconstitutional burden and clear the way for lawful resentencing with eligibility for parole.
II
46
Since the majority devotes its opinion to a discussion of the scope of Presidential power, I am compelled to comment. I have no quarrel with the proposition that the source of the President's commutation power is found in Art. II, § 2, cl. 1, of the Constitution, which authorizes the President to grant reprieves and pardons for offenses against the United States except for cases of impeachment. Biddle v. Perovich, 274 U.S. 480, 47 S.Ct. 664, 71 L.Ed. 1161 (1927). Commutation is defined as the substitution of a lesser type of punishment for the punishment actually imposed at trial.8
47
The issue here is whether the President's expansion of an unencumbered life term by addition of a condition proscribing Schick's eligibility for parole went beyond the authority conferred by Art. II. Article 118 of the UCMJ and the implementing court-martial regulations prescribe mandatory adjudication of either death or life imprisonment for the crime of premeditated murder. 10 U.S.C. § 918; 34 Fed.Reg. 10704. I take issue with the Court's conclusion that annexation of the 'no-parole condition . . . does not offend the Constitution.' Ante, at 267. In my view the President's action exceeded the limits of the Art. II pardon power. In commuting a sentence under Art. II the Chief Executive is not imbused with the constitutional power to create unauthorized punishments.
48
The congressionally prescribed limits of punishment mark the boundaries within which the Executive must exercise his authority.9 By virtue of the pardon power the Executive may abstain from enforcing a judgment by judicial authorities; he may not, under the aegis of that power, engage in lawmaking or adjudication. Cf. United States v. Benz, 282 U.S. 304, 311, 51 S.Ct. 113, 115, 75 L.Ed. 354 (1931) (an act of elemency is an exercise of executive power which abridges the enforcement of the judgment, but does not alter it qua judgment); United States ex rel. Brazier v. Commissioner of Immigration, 5 F.2d 162 (CA2 1924), (pardon power does not embrace right to bar congressionally prescribed deportation of prisoners).
49
While the clemency function of the Executive in the federal criminal jutstice system10 is consistent with the separation of powers, the attachment of punitive conditions to grants of clemency is not. Prescribing punishment is a prerogative reserved for the lawmaking branch of government, the legislature. As a consequence, President Eisenhower's addition to Schick's commutation of a condition that did not coincide with punishment prescribed by the legislature for any military crime,11 much less this specific offense, was a usurpation of a legislative function. While the exercise of the pardon power was proper, the imposition of this penal condition was not embraced by that power.12
50
The Court today advances the antecedent English pardon power and prior holdings of this Court in support of the legality of the no-parole condition. Neither body of law has established an Executive right to define extra-legislative punishments.13 Nor does the historical status of the pardon power in England or analysis of prior non-penal conditions supply any relevance here.
51
The English annals offer dubious support to the Court. The majority opinion recounts in copious detail the historical evolution of the pardon power in England. Ante, at 260—262. See also Ex parte Wells, 18 How. 307, 309—313, 15 L.Ed. 421 (1856). The references to English statutes and cases are no more than dictum; as the Court itself admonishes, 'the (pardon) power flows from the Constitution alone.' Ante, at 266. Accordingly, the primary resource for analyzing the scope of Art. II is our own republican system of government. See Grosjean v. American Press Co., 297 U.S. 233, 248—249, 56 S.Ct. 444, 448—449, 80 L.Ed. 660 (1936). The separation of powers doctrine does not vest the Chief Executive with an unrestrained clemency power, supra, at 274—275, but views his functions as distinct from the other coordinate branches. Ante, at 262—264. The references to the early American experience are not dispositive.14
52
Indeed, history recounts that even the pardon power of the King to 'annex (a condition) to his bounty' was subject to statutory limitation. 4 W. Blackstone, Commentaries *401. As noted in the Wells case:
53
'The sovereign of England, with all the prerogatives of the crown, in granting a conditional pardon, cannot substitute a punishment which the law does not authorize.' 18 How., at 323 (McLean, J., dissenting).
54
Even the authority quoted by Blackstone in support of the proposition, 2 W. Hawkins, Pleas of the Crown 547 (8th ed. 1824), does not actually support the suggestion of unlimited power in the King. In fact, the conditions discussed were either imposed pursuant to statute or of a nonpunitive nature. See Coles Case, Moore K.B. 466, 72 Eng.Rep. 700 1597); E. Coke, A Commentary upon Littleton 274b (19th ed. 1832). The Court acknowledges instances in which statutory authority placed restrictions on the monarch's power. Ante, at 260. The critical role of statutes in the imposition of the condition of banishment on pardons of convicted felons was recognized in a letter addressed to a member of the House of Lords:
55
'There is hardly anything to be found respecting conditional pardons in the old English law-books; but the authority of the Crown to grant a conditional pardon in capital cases is . . . recognized in statute 5 Geo. 4, c. 84, s. 2 . . ..' W. Forsyth, Cases and Opinions on Constitutional Law 460 (1869).
56
The King's prerogative was thus not as broad as the majority's reading of Blackstone indicates. The great discretion available to the King to dispense mercy did not incorporate into the pardoning power the royal right to invade the legislative province of assessing punishments.
B
57
Contrary to the Court's suggestion, limitation of Executive action to the statutory framework is not undermined by earlier decisions of this Court. In Biddle v. Perovich, 274 U.S. 480, 483, 47 S.Ct. 664, 71 L.Ed.2d 1161 (1927), the Solicitor General expressly noted that '(a) commutation is the substitution of a milder punishment known to the law for the one inflicted by the court.' Mr. Justice Holmes, writing for a unanimous Court, concluded on a related matter that consent to commutation was unnecessary since '(b)y common understanding imprisonment for life is a less penalty than death.' Id., at 487, 47 S.Ct., at 661. The Court held that the 'only question is whether the substituted punishment was authorized by law . . ..' Ibid. While Homes' specific reference is to the law of the Constitution, he then proceeds with a discussion of the statutory sanctions. Commutation to life imprisonment without any opportunity for parole would penalize the prisoner here beyond the terms of the UCMJ sanctions.
58
The requirement that the substituted sentence be one provided by law is not hampered by Ex parte Wells, supra, in which this Court upheld conditional commutation from a death sentence to a simple life term. The validity of mitigation of a sentence without depriving the prisoner of any additional rights is not inconsistent with rejection of unauthorized penal conditions. In Wells the Court acknowledged that limitations on the pardon power mandated its exercise 'according to law; that is, as it had been used in England, and these States.' 18 How., at 310. Although the Wells Court was not faced with the question whether all possible conditions were in the ambit of Art. II, it addressed the specific limitation on penal conditions attached to commutations:
59
'So, conditional pardons by the king do not permit transportation or exile as a commutable punishment, unless the same has been provided for by legislation.' Id., at 313.
60
The remaining cases on which the Court relies to sustain the condition offer minimal support and are easily distinguished.15
61
In conclusion I note that where a President chooses to exercise his clemency power he should be mindful that
62
'(t)he punishment appropriate for the diverse federal offenses is a matter for the discretion of Congress, subject only to constitutional limitations, more particularly the Eighth Amendment.' Bell v. United States, 349 U. S. 81, 82, 75 S.Ct. 620, 622, 99 L.Ed. 905 (1955).
63
See Ex parte United States, 242 U.S. 27, 42, 37 S.Ct. 72, 74, 61 L.Ed. 129 (1916). The Congress has not delegated such authority to the President. I do not challenge the right of the President to issue pardons on nonpenal conditions, but, where the Executive elects to exercise the Presidential power for commutation the clear import of the Constitution mandates that the lesser punishment imposed be sanctioned by the legislature.16
64
In sum, the no-parole condition is constitutionally defective in the face of the retrospective application of Furman and the extra-legal nature of the Executive action. I would nullify the condition, and direct the lower court to remand the case for resentencing to the only alternative available—life with the opportunity for parole—and its attendant benefits.
1
See generally 6 W. Holdsworth, History of English Law 203 (1938).
2
See 3 E. Coke, Institutes 233 (6th ed. 1680); 5 J. Comyns, Digest of the Laws of England 230 (5th ed. 1822); J. Chitty, Prerogatives of the Crown 90—91 (1820); 4 W. Blackstone, Commentaries *398.
3
Typical conditions were that the felon be confined at hard labor for a stated period of time, 4 Blackstone, supra, n. 2, at *401, or that he serve in the Armed Forces. 2 D. Hume, Crimes 481 (2d ed. 1819).
4
In Ex parte Wells, 18 How. 307, 15 L.Ed. 421 (1856), this Court expressed the view that legislative authorization was essential to the use of banishment from the realm as a commutable punishment by the English Crown. Id., at 313, 15 L.Ed. 421. However, that conclusion was no more than dictum and is historically incorrect. Indeed, about the time that Wells was decided Parliament abolished banishment as a penalty in England, but the Crown retained and continued to exercise the power to annex such conditions to pardons. 11 Holdsworth, supra, n. 1, at 575.
5
2 M. Farrand, Records of the Federal Convention of 1787, p. 185 (1911).
6
In the Federalist No. 74 Hamilton enlarged on this point:
'Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives, which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations, which were calculated to shelter a fit object of its vengeance. The reflection, that the fate of a fellow creature depended on his sole fiat, would naturally inspire scrupulousness and caution: The dread of being accused of weakness or connivance would beget equal circumspection, though of a different kind.' The Federalist No. 74, pp. 500—501 (J. Cooke ed. 1961).
7
See, e.g., 21 U.S.C. § 848(c); Mass.Gen.Laws Ann., c. 265, § 2 (1970); Nev.Rev.Stat., Tit. 16, c. 200.030, § 6, c. 200.363, § 1(a) (1973).
1
But see Part II, infra.
2
Article 118, 10 U.S.C. § 918, reads:
'Any person subject to this code who, without justification or excuse, unlawfully kills a human being, when he—
'(1) has a premeditated design to kill;
'shall suffer death or imprisonment for life as a court-martial may direct.' May 5, 1950, c. 169, § 1, 64 Stat. 140.
3
Military prisoners incarcerated in federal penitentiaries are governed by the same parole statutes and regulations applicable to all federal prisoners. Under the federal parole eligibility statute, 18 U.S.C. §§ 4202—4203 (1973 ed. and Supp. II), petitioner, an inmate for 20 years at Lewisburg, now has satisfied the 15-year prerequisite for parole consideration. See 10 U.S.C. § 858. Likewise, if Schick had been confined in a military facility he would now be eligible for parole under 10 U.S.C. §§ 952—953.
4
Where only one alternative punishment is available to the trial court, that punishment has been automatically imposed either by the appellate court itself, e.g., State v. Johnson, 31 Ohio St.2d 106, 285 N.E.2d 751 (1972); Commonwealth v. Bradley, 449 Pa. 19, 295 A.2d 842 (1972); Anderson v. State, 267 So.2d 8, 10 (Fla.1972); or by the trial judge on direction from the appellate court, e.g., Capler v. State, 268 So.2d 338 (Miss.1972); State v. Square, 263 La. 291, 268 So.2d 229 (1972); Garcia v. State, 501 P.2d 1128 (Ok.Cr.1972).
5
Nothing in Furman suggests that it is inapplicable to the military. The per curiam carves out no exceptions to the prohibition against discretionary death sentences. The opinions of the five-member majority recognize no basis for excluding the members of the Armed Forces from protection against this form of punishment. Even the list of four capital punishment statutes not affected by the Court's decision, provided by my Brother Stewart, does not include the federal military statutes. 408 U.S. 238, 307, 92 S.Ct. 2726, 2761, 33 L.Ed.2d 346 (1972). Even more persuasive is the language of my Brother Powell in dissent which states that 'numerous provisions of . . . the Uniform Code of Military Justice are also voided.' Id., at 417—418, 92 S.Ct., at 2818.
Beyond the language of Furman the Court has made clear in Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958), that the Eighth Amendment is applicable to the military. While the Court divided on the penal nature of the statute which provided additional sanctions for servicemen convicted of wartime desertion, there was no disagreement on the application of the Amendment.
I would also note that the UCMJ, enacted in 1950, has by decision and practice incorporated the Bill of Rights and afforded its protection to the members of the Armed Forces. See, e.g., United States v. Tempia, 16 U.S.C.M.A. 629, 634, 37 C.M.R. 249, 254 (1967); United States v. Jacoby, 11 U.S.C.M.A. 428, 430—431, 29 C.M.R. 244, 246—247 (1960); United States v. Jobe, 10 U.S.C.M.A. 276, 279, 27 C.M.R. 350, 353 (1959).
The fact that a court-martial rather than a jury imposes the death sentence is irrelevant. In my view the penalty is equally severe, and in my view equally offensive to the Eighth Amendment for that reason, see Furman v. Georgia, 408 U.S., at 314—374, 92 S.Ct., at 2764—2796 (Marshall, J., concurring). Moreover, the potential for abuse and discrimination with which my Brethren were concerned in Furman is as evident here as in the civilian courts.
6
W. Humbert, The Pardoning Power of the President 27 (1941).
7
157 U.S.App.D.C. 263, 270, 483 F.2d 1266, 1273 (1973) (Wright, J., dissenting).
8
Although pardon and commutation emanate from the same source, they represent clearly distinct forms of clemency. Whereas commutation is a substitution of a milder form of punishment pardon is an act of public conscience that relieves the recipient of all the legal consequences of the conviction. See, e.g., United States ex rel. Brazier v. Commissioner of Immigration, 5 F.2d 162 (CA2 1924); Chapman v. Scott, 10 F.2d 156, 159 (Conn.1925), aff'd, 10 F.2d 690 (CA2), cert. denied, 270 U.S. 657, 46 S.Ct. 354, 70 L.Ed. 784 (1926); Note, Executive Clemency in Capital Cases, 39 N.Y.U.L.Rev. 136, 138 (1964); Humbert, supra, n. 6, at 27; Black's Law Dictionary 351, 1268—1269 (4th ed. 1968).
9
Indeed, Mr. Chief Justice Marshall expanded on the notion of separation of powers, stating: '(T)he power of punishment is vested in the legislative . . . department. It is the legislature . . . which is to define a crime, and ordain its punishment.' United States v. Wiltberger, 5 Wheat. 76, 95, 5 L.Ed. 37 (1820).
10
Article 71(a) of the UCMJ, 10 U.S.C. § 871(a), outlines the Presidential role in the review of military convictions.
With the exception of premeditated murder and felony murder the UCMJ authorizes punishment at the discretion of the court-martial. Thus, in the majority of cases the President would not be limited to only two alternatives but could commute to any lesser sentence than that imposed by the court-martial consistent with the statutory authorization. It is only in the face of the mandate of Art. 118, limiting the alternatives to death or life imprisonment with the possibility of parole, that the restriction to the statutory alternatives may appear at first blush unduly Draconian.
11
As already indicated, confinement without opportunity for parole is unknown to military law. See text accompanying n. 3, supra. Moreover, the only federal-law recognition of this punishment in a civilian context is found in the very limited no-parole provisions dealing with continuing narcotics enterprises. 21 U.S.C. § 848. Guided by the special nature of drug offenses and drug offenders the Congress enacted this narrow exception to universal eligibility for parole. See H.R.Rep. No. 2388, 84th Cong., 2d Sess., 4, 8, 11, 64 (1956).
12
The Court cites Ex parte Wells, 18 How. 307, 15 L.Ed. 421 (1856), and an opinion of Attorney General Brownell, 41 Op.Atty.Gen. 251 (1955), in support of the statement that 'Presidents . . . have (frequently) exercised the power to pardon or commute sentences upon conditions that are not specifically authorized by statute.' Ante, at 266. Wells involved the simple substitution of the lesser penalty of life imprisonment for death; no separate punitive condition was attached to the Executive action. A legal opinion from the Attorney General supplies reasoned interpretations but hardly bears the force of law.
13
The King's pardon power, from which the President's Art. II power derives also was subject historically to statutory limitations. See Ex parte Wells, supra, at 312—313; id., at 322 (McLean, J., dissenting).
14
With few exceptions conditional pardons were not granted by state governors except where authorized by law, Ex parte Wells, supra, at 322 (McLean, J., dissenting). The Court's references to the Farmers' writings on the pardon power fail to take account of the separation of powers doctrine so fervently embraced by the constitutional drafters. National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 69 S.Ct. 1173, 93 L.Ed. 1556 (1949); The Federalist No. 47 (J. Madison) (J. Cooke ed. 1961); E. Corwin, The President; Office and Powers 140 (1940). In fact Corwin notes:
'(T)he President is not authorized to add to sentences imposed by the courts (pursuant to legislative direction)—he may only mitigate them . . ..' Ibid. (emphasis in original).
15
United States v. Wilson, 7 Pet. 150, 8 L.Ed. 640 (1833), turned on the technical question of whether a pardon must be pleaded and only referred in dictum to the possibility that the President could condition a pardon. In Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366 (1867), and Ex parte Grossman, 267 U.S. 87, 45 S.Ct. 332, 69 L.Ed. 527 (1925), the Court focused on the discretionary aspect of the pardon power which is here unchallenged. The emphasis was on the right of the President to grant a pardon to any criminal, for any offense, at any time. The question of conditional action was raised in only a tangential manner.
16
The Court likens the no-parole condition to 'sanctions imposed by legislatures such as mandatory minimum sentences . . ..' The similarity is all too close, in my view. Indeed, it is precisely because the President has invaded the legislative domain that the condition must fail.
| 12
|
419 U.S. 318
95 S.Ct. 472.
42 L.Ed.2d 498
Eugene C. KELLEY, Petitioner,v.SOUTHERN PACIFIC COMPANY.
No. 73—1270.
Argued Oct. 22, 1974.
Decided Dec. 23, 1974.
Syllabus
Petitioner, an employee of a trucking company (PMT), was injured while transferring automobiles in respondent's railyard from respondent's railroad car to a PMT auto trailer, an operation that PMT performed under contract for respondent. Although respondent's employees occasionally consulted with PMT employees about the operation, PMT supervisors controlled the day-to-day unloading process. Petitioner, claiming that he was sufficiently under respondent's control to bring him under the coverage of the Federal Employers' Liability Act (FELA), which makes a covered railroad liable for negligently causing injury or death to any person 'while he is employed' by the railroad, and that the accident resulted from respondent's negligence, brought suit against respondent under the FELA. The District Court found that the relationship between petitioner and respondent sufficed to make the FELA apply, the court having concluded that: PMT was serving generally as respondent's agent; PMT employees were respondent's agents for purposes of the unloading operation; and the work performed by petitioner fulfilled a nondelegable duty of respondent. The Court of Appeals reversed, having concluded that the District Court's test for FELA liability was too broad. Held:
1. The 'while employed' language of the FELA requires not only that the FELA plaintiff be an agent of the rail carrier but the carrier's servant, and here the District Court erred in holding that petitioner (who according to the court's findings was neither a borrowed servant of respondent nor a dual servant of respondent and PMT) came within the coverage of the FELA, since those findings also did not establish a master-servant relationship between respondent and PMT that would be necessary to render petitioner a subservant of the railroad. Nor was the District Court's conclusion that respondent was 'responsible' for the unloading operation tantamount to a finding that the railroad controlled or had the right to control the physical conduct of PMT employees like petitioner in the unloading operation. Pp. 322—326.
2. The District Court's findings that petitioner worked most of the time on respondent's premises and that respondent's employees were responsible for checking the safety conditions on the railroad cars showed only that the two companies' operations were closely related, not that respondent's employees supervised the unloading operation, and consequently the FELA's 'while employed' requirement remains unsatisfied even under the proper test. Pp. 326—331.
3. The record should be re-examined by the District Court in light of the proper legal standard. Pp. 331—332.
9 Cir., 486 F.2d 1084, vacated and remanded.
R. Jay Engel, San Francisco, Cal., for petitioner.
John J. Corrigan, Los Angeles, Cal., for respondent.
Mr. Justice MARSHALL delivered the opinion of the Court.
1
Petitioner Eugene Kelley was seriously injured when he fell from the top of a tri-level railroad car where he had been working. He sought recovery for his injuries from the respondent railroad under the Federal Employers' Liability Act (FELA), 35 Stat. 65, as amended, 45 U.S.C. §§ 51—60. Under the FELA, a covered railroad is liable for negligently causing the injury or death of any person 'while he is employed' by the railroad. Although petitioner acknowledged that he was technically in the employ of a trucking company rather than the railroad, he contended that his work was sufficiently under the control of the railroad to bring him within the coverage of the FELA. The District Court agreed, but the Court of Appeals for the Ninth Circuit reversed, 486 F.2d 1084 (1973), creating an apparent conflict with a previous decision of the Fourth Circuit, Smith v. Norfolk & Western R. Co., 407 F.2d 501, cert. denied, 395 U.S. 979, 89 S.Ct. 2134, 23 L.Ed.2d 767 (1969).1 We granted certiorari to resolve the conflict. 416 U.S. 935, 94 S.Ct. 1931, 40 L.Ed.2d 285 (1974). We vacate the judgment and remand the case for further proceedings in the District Court.
2
* At the time of his accident, petitioner had worked for the Pacific Motor Trucking Co. (PMT), a wholly owned subsidiary of the Southern Pacific Co., for about eight years.2 PMT was engaged in various trucking enterprises, primarily in conjunction with the railroad operations of its parent company. Among PMT's functions was transporting new automobiles from respondent's San Francisco railyard to automobile dealers in the San Francisco area. As part of its contractual arrangement with the railroad, PMT would unload automobiles from Southern Pacific's 'trilevel' auto-carrying flatcars when they arrived in the yard. It was petitioner's job to unhook the automobiles from their places on the railroad cars and to drive them into the yard for further transfer to PMT auto trailers. PMT maintained the unloading operation in the yard on a permanent basis. Although there were Southern Pacific employees in the area who would occasionally consult with PMT employees about the unloading process, PMT supervisors controlled and directed the day-to-day operations.
3
On July 3, 1963, petitioner was unhooking automobiles in the usual fashion from the top level of one of the tri-level flatcars. A safety cable, normally affixed to the flatcar to protect against falls, was apparently not in place because of an equipment defect. During the unhooking process, petitioner fell from the top of the car and suffered a disabling injury. He subsequently received workmen's compensation payments from PMT. Shortly before the three-year FELA statute of limitations had run, he brought suit against the respondent,3 claiming it had been negligent in failing to maintain the safety cable in its proper place and in proper working order.
4
In his complaint, petitioner alleged that he was employed by the respondent railroad within the meaning of the FELA. After a six-day hearing, the District Court, sitting as trier of fact,4 ruled in petitioner's favor on the employment question. The job of unloading automobiles was the railroad's responsibility, the court found, 'pursuant to its contractual responsibilities to the shippers and its tariff responsibilities.' In addition, the court found that the railroad supplied the necessary ramps and owned the area in which the PMT employees worked. The responsibility for supervision and control of the unloading operations was respondent's, the court concluded, even though 'the exercise thereof was executed by employees of Pacific Motor Trucking Company.' In sum, the court found that PMT was serving generally as the railroad's agent; PMT employees were agents of the railroad for the purposes of the unloading operation; and because the work being performed by petitioner was 'in fulfillment of a non-delegable duty of defendant Southern Pacific Company,' the relationship between petitioner and the railroad was sufficient to bring him within the coverage of the FELA. After this resolution of the employment issue, the railroad stipulated to its negligence, the parties agreed to set damages at $200,000, and the trial court entered judgment for petitioner in that amount.
5
The Court of Appeals observed that the District Court had not found that petitioner was 'employed' by the railroad, either permanently or at the time of his accident. The court noted that the 'while employed' clause of the FELA requires a finding not just of agency but of a master-servant relationship between the rail carrier and the FELA plaintiff. Concluding that the District Court had applied an unduly broad test for FELA liability, the Court of Appeals reversed the District Court's judgment.
II
6
Petitioner insists that the District Court in effect made a factual finding of employment and that the Court of Appeals erred in upsetting that finding. Of course, even if the District Court made such a finding of employment after applying the proper principles of law, that would not be the end of the matter. Under Fed.Rule Civ.Proc. 52(a), an appellate court must set aside the trial court's findings if it concludes that they are 'clearly erroneous.' See United States v. United States Gypsum Co., 333 U.S. 364, 394—395, 68 S.Ct. 525, 541—542, 92 L.Ed. 746 (1948). We need not reach the question whether any of the District Court's findings in this case were clearly erroneous, however, since we agree with the Court of Appeals that the trial court applied an erroneous legal standard in holding that the plaintiff was within the reach of the FELA. United States v. Singer Mfg. Co., 374 U.S. 174, 194 n. 9, 83 S.Ct. 1773, 1783, 10 L.Ed.2d 823 (1963).
7
The heart of the District Court's analysis was its conclusion that the 'traditional agency relationship' between respondent and PMT, in conjunction with the master-servant relationship between PMT and petitioner, was sufficient under the circumstances of this case to bring petitioner under the coverage of the Act. But this Court has repeatedly required more than that to satisfy the 'while employed' clause of the FELA. From the beginning the standard has been proof of a master-servant relationship between the plaintiff and the defendant railroad. See Robinson v. Baltimore & Ohio R. Co., 237 U.S. 84, 94, 35 S.Ct. 491, 494, 59 L.Ed. 849 (1915); Hull v. Philadelphia & Reading R. Co., 252 U.S. 475, 479, 40 S.Ct. 358, 359, 64 L.Ed. 670 (1920); Baker v. Texas & Pacific R. Co., 359 U.S. 227, 228, 79 S.Ct. 664, 665, 3 L.Ed.2d 756 (1959).
8
In an early FELA case, this Court noted that the words 'employee' and 'employed' in the statute were used in their natural sense, and were 'intended to describe the conventional relation of employer and employe .' Robinson, supra, 237 U.S., at 94, 35 S.Ct., at 494. In Baker, supra, the Court reaffirmed that for the purposes of the FELA the question of employment, or master-servant status, was to be determined by reference to common-law principles. The Court in Baker referred to sections of the Restatement (Second) of Agency dealing with the borrowed-servant doctrine and the general master-servant relationship as a guideline for analysis and proper jury instructions.5 Section 220(1) of the Restatement defines a servant as 'a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right to control.' In § 220(2), the Restatement recites various factors that are helpful in applying that definition. While that section is directed primarily at determining whether a particular bilateral arrangement is properly characterized as a master-servant or independent contractor relationship, it can also be instructive in analyzing the three-party relationship between two employers and a worker.
9
Under common-law principles, there are basically three methods by which a plaintiff can establish his 'employment' with a rail carrier for FELA purposes even while he is nominally employed by another. First, the employee could be serving as the borrowed servant of the railroad at the time of his injury. See Restatement (Second) of Agency § 227; Limstead v. Chesapeake & Ohio R. Co., 276 U.S. 28, 48 S.Ct. 241, 72 L.Ed. 453 (1928). Second, he could be deemed to be acting for two masters simultaneously. See Restatement § 226; Williams v. Pennsylvania R. Co., 313 F.2d 203, 209 (CA2 1963). Finally, he could be a subservant of a company that was in turn a servant of the railroad. See Restatement § 5(2); Schroeder v. Pennsylvania R. Co., 397 F.2d 452 (CA7 1968).
10
Nothing in the District Court's findings suggests that petitioner was sufficiently under the control of respondent to be either a borrowed servant of the railroad or a dual servant of the railroad and PMT.6 The District Court's findings come closest to suggesting a subservant relationship running from the railroad through PMT to petitioner. But even that theory fails on the findings in the trial court, since those findings did not establish the master-servant relationship between respondent and PMT necessary to render petitioner a subservant of the railroad.
11
The District Court found that PMT employees exercised supervision and control over the unloading operations, although the railroad bore the 'responsibility' for those functions. On these facts, the District Court was plainly correct in concluding that PMT was an agent of the railroad. But a finding of agency is not tantamount to a finding of a master-servant relationship. See Restatement (Second) of Agency § 2. The finding that the railroad was 'responsible' for the unloading operations is significantly weaker than would be a finding that it controlled or had the right to control the physical conduct of the PMT employees in the course of their unloading operations. The railroad would satisfy the District Court's 'responsibility' test whenever it agreed to perform a service and subsequently engaged another company to perform that service for it on its premises. The 'control or right to control' test, by contrast, would be met only if it were shown that the role of the second company was that of a conventional commonlaw servant.7 Accordingly, we agree with the Court of Appeals that the District Court's test for FELA coverage was too broad.
III
12
The dissenters argue that even if the District Court erred in defining the applicable legal standard, we should reverse the Court of Appeals and reinstate the judgment of the District Court. The facts found by the District Court, they contend, satisfied the requirements of the 'while employed' clause, even under the proper test. We disagree.
13
As we noted in Part II, the District Court's findings concerning the contractual relationship between PMT and the railroad fall far short of compelling the conclusion that Kelley was employed by Southern Pacific. The court's other factual determinations add no more force to the claim. The findings that Kelley's crew worked most of the time on the railroad's premises and that railroad employees were responsible for checking safety conditions on the tri-level cars reflect the fact that the activities of the two companies were closely related and necessarily had to be coordinated. Railroad employees tending the cars and PMT employees unloading them naturally had substantial contact with one another. In addition, Southern Pacific supervisory personnel were occasionally in the area where PMT conducted its unloading operations and from time to time would advise or consult with PMT employees and supervisors. But the trial court did not find that Southern Pacific employees played a significant supervisory role in the unloading operation or, more particularly, that petitioner was being supervised by Southern Pacific employees at the time of his injury.8 Nor did the court find that Southern Pacific employees had any general right to control the activities of petitioner and the other PMT workers.9
14
The two companies were sufficiently distinct in organization and responsibility that there was no apparent overlap in the supervisory ranks. Indeed, the labor contract between the Teamsters and PMT expressly provided that the PMT employees would be subject only to the control of PMT supervisors. In light of the analysis in this Court's previous cases, the District Court's findings clearly fail to establish that petitioner was 'employed' by the railroad.
15
In Robinson v. Baltimore & Ohio R. Co., supra, the petitioner was an employee of the Pullman Company, serving as porter in charge of a Pullman car that was hauled by the respondent railroad. Although the Pullman employees worked closely with railroad employees, and although the Pullman car was an integral part of the railroad operation, the Court held that that was not enough to make petitioner an employee of the railroad for the purposes of the Act. Even the petitioner's responsibility for taking tickets or fares of passengers boarding the Pullman car at night was not enough to make him a servant of the railroad. This service was merely an accommodation to the railroad, not a demonstration of the railroad's right to control the conduct of the Pullman employee. The Court stated that at the time the Act was passed, '(i)t was well known that there were on interstate trains persons engaged in various services for other masters. Congress, familiar with this situation, did not use any appropriate expression which could be taken to indicate a purpose to include such persons among those to whom the railroad company was to be liable under the act.' 237 U.S., at 94, 35 S.Ct., at 494. The Pullman company, like PMT in this case, selected its own employees, and it 'defined their duties, fixed and paid their wages, directed and supervised the performance of their tasks, and placed and removed them at its pleasure.' Id., at 93, 35 S.Ct., at 493.
16
In the following year, the Court was again faced with the question whether a particular worker was an employee of the railroad that had caused his death, or whether he was an independent contractor. Chicago, R.I. & P.R. Co. v. Bond, 240 U.S. 449, 36 S.Ct. 403, 60 L.Ed. 735 (1916). The decedent had been engaged by the railroad to procure coal and wood and to perform various other services at its loading center in Enid, Okl. Although the railroad directed the decedent's activities to some extent, the Court observed that those directions were simply reformulations of the flexible obligations assumed by the decedent under his contract, not 'a detailed control of the actions of (decedent) or those of his employees.' Id., at 455—456, 36 S.Ct., at 406. The arrangement by which decedent had been engaged to provide services for the railroad, the Court concluded, was 'not the engagement of a servant submitting to subordination and subject momentarily to superintendence, but of one capable of independent action, to be judged of by its results.' Id., at 456, 36 S.Ct., at 406.
17
In Bond the Court relied on the earlier decision in Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480 (1909), to clarify the distinction between a contractor and an employee. In that case, a longshoreman was injured when a which operator negligently lowered a load of oil cases on him. Petitioner, the general employer of the negligent winchman, argued that at the time of the accident the winchman was the borrowed servant of the stevedoring company, the longshoreman's employer. The Court, however, held that the winchman was not a servant of the stevedore but the servant of an independent contractor. The general employer had not furnished the employee to the stevedore, the Court wrote; it had furnished only the employee's work. Focusing on the locus of the power to control and direct the servant's work, the Court emphasized the importance of distinguishing between 'authoritative direction and control, and mere suggestion as to details or the necessary cooperation, where the work furnished is part of a larger undertaking.' Id., at 222, 29 S.Ct., at 254. Cf. Denton v. Yazoo & Mississippi Valley R. Co., 284 U.S. 305, 52 S.Ct. 141, 76 L.Ed. 310 (1932).
18
In this case, as in Anderson, the evidence of contacts between Southern Pacific employees and PMT employees may indicate, not direction or control, but rather the passing of information and the accommodation that is obviously required in a large and necessarily coordinated operation. See Del Vecchio v. Pennsylvania R. Co., 233 F.2d 2, 5 (CA3 1956). The informal contacts between the two groups must assume a supervisory character before the PMT employees can be deemed pro hac vice employees of the railroad.10
19
The factual setting of Baker v. Texas & Pacific R. Co., supra, provides an instructive contrast. Petitioner in Baker was nominally employed by a contractor who was engaged in maintenance work for the railroad. At trial, he introduced evidence to show that his work was part of the maintenance task of the railroad and that the material he was pumping into the roadbed was supplied by the railroad. Most significantly, there was evidence to show that
20
'a supervisor, admittedly in the employ of the railroad, in the daily course of the work exercised directive control over the details of the job performed by the individual workmen, including the precise point where the mixture should be pumped, when they should move to the next point, and the consistency of the mixture.' 359 U.S., at 228—229, 79 S.Ct., at 665.
21
Because the evidence of control or right to control was in serious dispute, the Court held that the case must be permitted to go to the jury. As we have indicated, however, the District Court found no such day-to-day supervision that would support a finding that petitioner and his coworkers were, in effect, employees of the railroad.
IV
22
We part company with the Court of Appeals on the propriety of a remand. The court rendered judgment for respondent apparently because it determined that the District Court had found that there was no employment relationship, or because it had decided on its own that any such finding would have been clearly erroneous. Yet, while the District Court's failure to adopt petitioner's proposed findings of fact relating to employment is of some significance in determining what that court deemed to be the requirements of the 'while employed' clause, see n. 6, supra, it is not enough to constitute a reviewable finding that there was no master-servant relationship between petitioner and the railroad. Similarly, while the Court of Appeals may have meant to suggest that in its view the record could not support a finding of employment, that suggestion is not developed in its opinion, and we think the best course at this point is to require the trier of fact to re-examine the record in light of the proper legal standard. Accordingly, we vacate the judgment of the Court of Appeals and remand the case to that Court with instructions to remand the case to the District Court for further findings in accordance with this opinion.
23
Vacated and remanded.
24
Mr. Justice STEWART, concurring in the judgment.
25
In determining Kelley's status under the FELA, the District Judge apparently relied on general agency principles, rather than on the particular principles of master-servant law. This was error, and it is thus proper to remand this case to the District Judge so that he can take a fresh look at the record, in light of the collect legal standard.
26
The correct standard is not a novel one. The law of master and servant has been with us for a long time, and its adequate exposition elsewhere, e.g., Restatement (Second) of Agency §§ 5(2), 220, 226, and 227 renders much of the Court's extended discussion unnecessary. But my chief problem with the Court's opinion is its insistence upon dissecting the particularized evidence in this case. Whether or not the Southern Pacific Co. controlled or had the right to control Kelley's work is for the original factfinder to determine.
27
The Court today substantially invades the trial court's function. If the Court wishes to decide the issue itself, a remand is unnecessary. If the Court wishes to leave the decision to the District Judge, who saw the evidence and heard the witnesses, much of the detailed discussion of the evidence in the Court's opinion is gratuitous.
28
I believe that both the efficient allocation of judicial resources and the ends of justice are best served by a remand—but a genuine remand, affording the District Judge latitude to perform his proper function as factfinder. Because the Court's opinion bristles with broad hints that a finding of FELA coverage would be clearly erroneous, its remand of this case seems to me to approach disingenuousness.
29
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN concurs, dissenting.
30
Today's decision marks a return to the era when the FELA was interpreted in a hostile and restrictive manner by the federal judiciary. Accordingly, I am constrained to register my dissent.
31
The first Employers' Liability Act was enacted in 1906, 34 Stat. 232, and this Court responded by holding the Act unconstitutional. Employers' Liability Cases, 207 U.S. 463, 28 S.Ct. 141, 52 L.Ed. 297 (1908). Congress tried again in 1908 and produced the Act which is now in effect. 35 Stat. 65, 45 U.S.C. § 51 et seq. This time the Court upheld the statute, Second Employers' Liability Cases, 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327 (1912), but judicial hostility did not end. The defense of assumption of risk was, for the most part, held to be still available to the employer. Seaboard Air Line R. Co. v. Horton, 233 U.S. 492, 34 S.Ct. 635, 58 L.Ed. 1062 (1914). The Act sought expressly to control the use of a contributory negligence defense, but the Court circumvented this to a considerable degree by developing the doctrine of 'primary duty.' See Great Northern R. Co. v. Wiles, 240 U.S. 444, 36 S.Ct. 406, 60 L.Ed. 732 (1916). Finally, in 1939, the Congress decided that further legislation was needed. 53 Stat. 1404. The result was a more liberal view of the Act which did not provide the emloyer with so many defenses. See Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610 (1943).
32
Since 1939 this Court has interpreted the Act in the spirit of those amendments. Gradual liberalization has occurred, and the narrow, technical approach of earlier years has been eschewed. See W. Prosser, Law of Torts 536—537 (4th ed. 1971). This development did not occur without dissent. Divisions of opinion occurred on the merits and also on the question of whether the Court should involve itself in this area at all. See, e.g., Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957). Nevertheless, the Court continued to oversee the application of the Act and to insist that judicial interpretations be consistent with the Act's overall purpose.
33
One of the questions which has arisen under the Act has been the definition of employment. Section 1 of the FELA, 45 U.S.C. § 51, provides that the carrier is liable in damages for injury or death resulting to an employee from the carrier's negligence. But the damage must be done to the one injured or killed 'while he is employed' by the carrier. In the past judges have sometimes tried to give this requirement a rigid, technical content, but such an approach has been rejected by this Court.
34
In Baker v. Texas & Pacific R. Co., 359 U.S. 227, 79 S.Ct. 664, 3 L.Ed.2d 756 (1959), the petitioner's decedent had been hired as a workman by W. H. Nichols & Co., a firm which had entered into a contract with the respondent railroad. The decedent was working along the main-line of the railroad performing various operations designed to strengthen and stabilize the roadbed. He was killed when he was struck by a train. The trial judge refused to submit the issue of employment to the jury and held that as a matter of law the decedent was not in an employment relationship with the railroad at the time of his death. This Court reversed on the ground that whether the decedent was an employee within the meaning of the Act was properly a question for the jury. Noting that the terms 'employee' and 'employed' are not used in any 'special sense,' the Court reasoned that the issue of employment 'contains factual elements such as to make it one for the jury under appropriate instructions as to the various relevant factors under law. See Restatement, Agency 2d, § 220, comment c; § 227, comment a.' Id., at 228.
35
Ward v. Atlantic Coast Line R. Co., 362 U.S. 396, 80 S.Ct. 789, 4 L.Ed.2d 820 (1960), involved similar considerations to those in Baker. The petitioner was employed as a laborer by the railroad, but he was working on his day off with a crew which was fixing a siding tract that belonged to a third party. Since the petitioner was being paid by this third party on the day of the injury, a question existed as to whether the petitioner was an employee of the railroad at the time of the accident. We held that the trial judge had improperly charged the jury to consider only one factor, that of the awareness of the victim that he was working for a third party on the day in question. We noted that a number of factors must be considered under Restatement (Second) of Agency § 220.
36
Many Courts of Appeals have been confronted with problems similar to those in Baker and Ward, and they too have taken a nontechnical approach based on the various aspects of the particular case presented. For example, in Missouri K—T R. Co. v. Hearson, 422 F.2d 1037 (CA10 1970), the injured worker was a car cleaner. The railroad had stopped doing its own car cleaning and had hired a firm to do the job, and the injured worker was nominally the employee of this hired firm. But, upon examining all the factors, the Court of Appeals affirmed the District Court ruling that reasonable men could not differ in the conclusion that the victim was in an employment relationship with the railroad for FELA purposes. In Schroeder v. Pennsylvania R. Co., 397 F.2d 452 (CA7 1968), the deceased worker was nominally an employee of a trucking company which was under contract to perform certain pickup and delivery services for the pailroad. Considering all the facts the Court of Appeals held that the trial judge had properly submitted to the jury the question of whether the deceased had been employed by the railroad for FELA purposes. Many more cases of a similar nature exist. See, e.g., Byrne v. Pennsylvania R. Co., 262 F.2d 906 (CA3 1958); Cimorelli v. New York Central R. Co., 148 F.2d 575 (CA6 1945). But see, e.g., Fawcett v. Missouri Pacific R. Co., D.C., 242 F.Supp. 675 (WDLa.1963), aff'd, 347 F.2d 233 (CA5 1965).
37
The case most clearly in point from another Court of Appeals is Smith v. Norfolk & Western R. Co., 407 F.2d 501 (CA4 1969). There the injured worker was also employed by a company which unloaded autos from railroad cars, and, like the petitioner here, the worker fell to the ground from the top tier of one of the cars. The District Court granted the worker summary judgment, since it had no doubt that he was an employee of the railroad within the meaning of the FELA. The Court of Appeals affirmed, using the following language: 'Though employees of independent contractors are not accorded coverage under the Act . . . if the injured worker is employed by an agent or adjunct of the railroad he will be treated as an employee of the railroad for purposes of the Act. . . . Thus traditional concepts of agency extend the coverage of the Act.' Id., at 502. The District Court in this case relied on the language of the Court of Appeals in Smith v. Norfolk & Western R. Co., supra. The Court today holds that this language misstates the law.
38
All servants1 are agents of their masters. Restatement (Second) of Agency § 2(2). But many agents are not servants within the meaning of § 220 of the Restatement. For example, an agent may be an independent contractor, but an independent contractor may never be a servant. Id. § 14 N, comment a. In Baker and Ward we referred to the Restatement as a source of principles which provide a basis for the factual decision as to whether an individual is an employee for FELA purposes. Under those principles an employee must be a servant and not merely an agent.2
39
Because the District Court in the present case used the word 'agent' rather than 'servant' or 'employee' it committed a technical error. But our inquiry here should not be limited to a narrow examination of whether the right form of words was used to support a judgment in favor of a seriously injured worker. The District Court found that the requisite relationship was present to permit a recovery under the FELA, and we should ask whether the findings of fact that were made were sufficient to support that conclusion under the legal standard as correctly described.
40
The District Court made numerous findings of fact which support its conclusion that the FELA is applicable here, and these findings have not been held to be 'clearly erroneous' under Fed.Rule Civ.Proc. 52(a). Petitioner had been working in the job of unloading automobiles from respondent's railroad cars for eight years. Restatement (Second) of Agency §§ 220(2)(f), 227, comment c. The work performed was that of respondent, to be performed in the general course of respondent's business pursuant to its contractual responsibilities. Id. § 220(2)(h). The work was of an unskilled variety. Id. § 220(2)(d), 227, comment c. Petitioner was paid by the hour. Id. § 220(2)(g). The record was unclear as to who supplied the necessary hammers and wrenches, but respondent clearly supplied the necessary ramps and working area, and it was responsible for safety. Id. § 220(2)(e). Respondent had the immediate responsibility for supervision and control of the work, though this task was carried out by others who, like petitioner, were servants of Pacific Motor Trucking Co. Id. § 220(2) (a).3
41
There are basically two reasons for the Court of Appeals' reversal of the District Court's holding in petitioner's favor. First, the District Court found that petitioner was an employee of the trucking company. But this does not mean that petitioner was not also an employee of the railroad for the purposes of the FELA. In Byrne v. Pennsylvania R. Co., supra, 262 F.2d, at 910, the victim was an employee of Westinghouse who was working on a railroad locomotive at the time of his death. The Court of Appeals noted in that case that '(t)here is, of course, no question but that (the victim) was an employee of Westinghouse. The issue is whether sufficient evidence was adduced to enable the jury to conclude that (the victim) was also an employee of the Railroad.' See Restatement (Second) of Agency §§ 226 and 227. If the mere fact that an individual is on the payroll of someone other than the railroad sufficed to make that individual not an employee of the railroad for FELA purposes, then this Court would not have found it necessary to reverse in the Baker case. Such a simple test could be devised, but whether such a change in the law is to be made should be up to Congress to decide.
42
The second reason the Court of Appeals used for reversing the District Court was that the District Court had rejected a finding that petitioner was an employee of the railroad. The trial judge was relying on the 'agency' language of Smith v. Norfolk & Western R. Co., supra, and he therefore apparently had his labels confused. He was using the concept of employment in a narrow and restricted way, yet was expanding it to accommodate decisions such as Baker by including both employment and agency relationships within the scope of the FELA. If the District Judge did not find an employment relationship in this narrow sense, that fact is unimportant, for he did find a relationship sufficient to satisfy the correct test. While he used language of agency he gave that language the substantive content of Baker and of the source relied upon by Baker—Restatement (Second) of Agency § 220. He made findings of fact easily sufficient to support the existence of an employment relationship under the correct substantive test, and he in fact found that the requisite relationship existed. The fact that he used the word 'agency' rather than the word 'employment' to describe this relationship is thus of no more than technical, abstract concern. This is not the sort of concern that should motivate us in the FELA context.
43
The majority here has taken a different tack from that of the Court of Appeals. Citing numerous cases from the era before the 1939 amendments to the Act, the majority argues that the railroad here exercised insufficient control over the petitioner to establish the requisite employment relationship. Under the approach taken in Baker and Ward, however, the existence of a master-servant relationship is to be determined from an examination of many factors. This is quite different from the majority's concentration on technical distinctions regarding kinds and degrees of control and cooperation.4 As I have indicated, I think that a judgment in favor of the petitioner is quite justified on the basis of facts already found by the District Court. I have no strong objection to the decision that the case be remanded for new findings in light of the correctly stated legal standard, but I dissent from the rigid and old-fashioned standard of liability which the majority indicates should be made applicable.
44
In a strictly doctrinal sense this case may not have a great impact on the coverage of the FELA, but I fear that the precedent set today bodes ill for the future. It distorts the accepted meaning of the Act and reflects a judicial hostility to the FELA of the kind that existed prior to the 1939 amendments.
45
I would reverse the judgment below.
46
Mr. Justice BLACKMUN, dissenting.
47
The Court in its decided cases has traveled far in order to accord Federal Employers' Liability Act coverage to a variety of employment situations. See, e.g., Shenker v. Baltimore & Ohio R. Co., 374 U.S. 1, 5, 83 S.Ct. 1667, 1670, 10 L.Ed.2d 709 (1963), and North Carolina R. Co. v. Zachary, 232 U.S. 248, 260, 34 S.Ct. 305, 309, 58 L.Ed. 591 (1914). Its many decisions are now a well-chalked slate that should not be significantly erased without good reasons. Neither should the Court change a mature and highly developed legal standard, long accepted by Congress, without explaining those reasons or even saying what the effect will be.
48
For me, the Court's per curiam opinion in Baker v. Texas & Pacific R. Co., 359 U.S. 227, 79 S.Ct. 664, 3 L.Ed.2d 756 (1959), controls this case. There the injured workman had been hired by a corporation engaged in work along the railroad's main-line right-of-way. The work consisted of pumping sand and cement into the roadbed in order to strengthen and stabilize it. The workman was struck by a train while engaged at this job. The petitioners contended that he was killed while he was 'employed' by the railroad, within the meaning of the Act. Evidence on the question was introduced, but the trial judge declined to submit the issue to the jury, holding as a matter of law that the workman was not in such a relationship to the railroad at the time of his death as to entitle him to the Act's protection. The state courts refused to disturb the judgment for the railroad.
49
This Court, however, held that the Act does not use the terms 'employee' and 'employed' in any special sense, and that the familiar general legal problems as to whose employee or servant a worker is at a given time present themselves as matters of federal law under the Act. Each case, the Court said, must be decided on its peculiar facts and 'ordinarily no one feature of the relationship is determinative." The Court concluded that it was 'perfectly plain' that the question 'contains factual elements such as to make it one for the jury under appropriate instructions as to the various relevant factors under law.' Id., at 228, 79 S.Ct., at 665. It pointed out that the petitioners introduced evidence tending to prove that the work 'was part of the maintenance task of the railroad'; that the road 'furnished the material to be pumped into the roadbed'; and that a supervisor, admittedly in the employ of the railroad, in the daily course of the work exercised directive control over the details of the job. Ibid. The railroad introduced evidence tending to controvert this. The Court then held that an issue for determination by the jury was presented.
50
So it is here. Kelley was injured at the railroad's loading-and-unloading ramp in San Francisco. He and others were unchaining new automobiles for unloading when he fell from the third level of the railroad car. He was hired, paid by, and could be discharged by the railroad's wholly owned subsidiary. All the officers and directors of that subsidiary were officers or directors of the railroad. The subsidiary was the only company then having a contract with the railroad to unload cars at that ramp. Kelley had been employed at this particular job and at this site for eight years and was paid on an hourly basis. The unloading was the railroad's responsibility pursuant to its contractual obligation to its shipper. The railroad supplied the necessary working area. The work performed by Kelley was unskilled. Railroad employees had the responsibility daily to check the safety of the cars and to make necessary repairs. There was evidence that he railroad exercised a degree of control over the unloading operation and that PMT employees performing this work frequently felt they had to heed the railroad supervisor's command.*
51
All this, it seems to me, is enough to create an issue for the trier of fact, just as the Baker case illustrates and as it teaches. The trier could find that Kelley was doing work of a kind and in a way and under such supervision of the Southern Pacific as made him an employee of that railroad for purposes of the FELA.
52
I feel the Court in its footnote 6, ante, at 325, n. 6, gives undue emphasis to the District Court's treatment of findings of fact proposed by the petitioner. Every actively practicing trial attorney knows that some judges readily adopt findings presented by counsel; that other judges almost always reject proposed findings and prefer to draft their own or have their clerks prepare them; and that still others adopt a middle course. In this case the District Court produced a judgment for the injured workman. I doubt whether there can be much significance in the adjustment-of-proposed-findings route by which that judgment was reached.
53
While the Court disclaims any modification of the standards for allowing questions of fact in FELA cases to go to the jury, its decision here suggests otherwise. The Court implies that supervision must be 'day-to-day' in order to constitute 'supervision' for purposes of creating 'employee' status under the FELA. Ante, at 331. Does this mean that orders must be issued with a certain frequency (e.g., every day, or most days) or merely in a certain manner (e.g., the 'daily' normal 'course of the work,' Baker, 359 U.S., at 228—229, 79 S.Ct., at 665—666)? The Court does not say. I suspect that trial judges will be inclined to resolve most doubts against plaintiffs if their findings are to be so vulnerable to challenge.
54
I also fear that the Court's holding may be one that opens the way for the railroads of this country to avoid FELA liability. That way apparently is to contract out large portions of maintenance and loading and unloading responsibilities that normally are part of the railroad's operation.
55
I would reverse the judgment of the Court of Appeals, and I therefore dissent.
1
Very similar fact situations have arisen in a number of federal and state cases. E.g., Tarboro v. Reading Co., 396 F.2d 941 (CA3 1968). cert. denied, 393 U.S. 1027, 89 S.Ct. 637, 21 L.Ed.2d 569 (1969); Mazzucola v. Pennsylvania R. Co., 281 F.2d 267 (CA3 1960); Cimorelli v. New York Central R. Co., 148 F.2d 575 (CA6 1945); Thornton v. Norfolk & Western R. Co., 307 F.Supp. 667 (E.D.Va.1969); Hunter v. Missouri-Kansas-Texas R. Co., 258 F.Supp. 20 (N.D.Okl.1966); Fawcett v. Missouri Pacific R. Co., 242 F.Supp. 675 (W.D.La.1963), aff'd per curiam, 347 F.2d 233 (CA5), cert. denied, 382 U.S. 907, 86 S.Ct. 242, 15 L.Ed.2d 159 (1965); Valentine v. South Coast Corp., 218 F.Supp. 148 (E.D.La.1963), aff'd per curiam, 334 F.2d 244 (CA5 1964); Williams v. Chicago & Eastern Illinois R. Co., 13 Ill.App.3d 596, 300 N.E.2d 766 (1973); Waters v. Chicago & Eastern Illinois R. Co., 86 Ill.App.2d 48, 229 N.E.2d 151 (1967); Turpin v. Chicago, B. & Q.R. Co., 403 S.W.2d 233 (Mo.), cert. denied, 384 U.S. 1003, 86 S.Ct. 1925, 16 L.Ed.2d 1015 (1966); Drago v. Central R. Co., 93 N.J.L. 176, 106 A. 803, cert. denied, 251 U.S. 553, 40 S.Ct. 118, 64 L.Ed. 411 (1919).
2
Petitioner has abandoned his claim that PMT's status as respondent's wholly owned subsidiary should render respondent liable generally for injuries to PMT employees.
3
In most FELA cases a finding of nonemployment does no more than deprive the plaintiff of the various procedural and proof advantages of the Act, since the common-law negligence action against a nonemployer is generally available in the alternative. In this case, however, when petitioner brought his FELA suit, the statute of limitations for California's common-law negligence action had already run.
4
Although both parties initially damanded a jury trial, they agreed to try the limited question of employment to the court.
5
A year later, in Ward v. Atlantic Coast Line R. Co., 362 U.S. 396, 400, 80 S.Ct. 789, 792, 4 L.Ed.2d 820 (1960), the Court again cited the Restatement as the proper basis for instructing a jury on the various factors that bear on the factual question of employment. The Court in Ward approved an instruction that incorporated several of the factors mentioned in Restatement § 220.
6
It appears that the District Court consciously declined to make a finding of 'employment' or master-servant relationship between the railroad and Kelley. Petitioner proposed findings that respondent 'had the right to exercise control over the details of the work being performed by (petitioner),' that the parties 'believed that a relationship of master and servant existed' between them, and that petitioner 'was an 'employee' of defendant Southern Pacific Company.' The court declined to make any of these three proposed findings, although it adopted several of petitioner's less critical proposed findings in whole or in part. Moreover, the court specifically found that at the time of his injury, petitioner was in the employment of PMT, a finding that petitioner, of course, had not requested.
7
The District Court appeared to place substantial weight on its finding that the unloading operation was a 'non-delegable duty' of the railroad, 'pursuant to its contractual responsibilities to the shippers and its tariff responsibilities.' But the fact that respondent undertook the contractual obligation to unload the cars and added the unloading cost to its overall charge to the shipper does not affect the nature of its arrangement with PMT. The railroad was free either to use its own employees to unload the automobiles or to subcontract the work to another company. Nor did the publication of tariffs for the unloading services automatically render anyone who performed those tasks an employee of the railroad for FELA purposes. See Norman v. Spokane-Portland & S.R. Co., 101 F.Supp. 350 (D.C.Or.1950), aff'd per curiam, 192 F.2d 1020 (CA9 1951).
8
Petitioner has pointed to testimony from PMT employees who stated that in the course of the unloading operation they had contact with various Southern Pacific employees, including clerks, who would check on arriving and departing cars, 'car-whackers,' who were responsible for car maintenance and inspection and switchmen, who would occasionally ask the PMT employees to indicate when they were finished working on a car so that the switch engine could clear the tracks. These contacts, however, were plainly not supervisory in nature and do not buttress petitioner's claim to railroad employment.
9
In addition to the findings discussed above, the District Court found that petitioner had worked for PMT for a substantial period, that he performed unskilled labor, and that he was compensated by an hourly wage. While these factors are generally relevant to the employment inquiry, see Restatement (Second) of Agency §§ 220(2)(d), (f), (g), we fail to see how they aid petitioner here. They make it plain that Kelley was a general servant of PMT, but neither the District Court nor the dissenters explain how they bear significantly on respondent's control over or right to control Kelley's activities.
10
The Court in Shenker v. Baltimore & Ohio R. Co., 374 U.S. 1, 83 S.Ct. 1667, 10 L.Ed.2d 709 (1963), applied the analysis of Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480 (1909), in a factual setting somewhat analogous to that of the present case. The petitioner in Shenker was employed as a janitor for the B & O Railroad. In addition to his work for the B & O, he maintained a nearby rail station and performed various services for the Pittsburgh & Lake Erie Railroad (P & LE). Although petitioner was on P & LE's premises and was doing P & LE's work when he was injured, the Court noted that 'there can be no question that the petitioner is an employees of the B & O.' 374 U.S., at 5, 83 S.Ct., at 1670. Citing Anderson, the Court wrote:
'(U)nder the common law loaned-servant doctrine immediate control and supervision is critical in determining for whom the servants are performing services. In the present case, the undisputed facts show that the petitioner was at all times paid by the B & O and under the sole supervision of B & O employees. The intimations of the B & O that the petitioner might have been given directions by the P & LE baggageman is at most an example of the minimum cooperation necessary to carry out a coordinated undertaking, and, as noted in Anderson, cannot amount to control or supervision.' Id., at 6, 83 S.Ct. at 1671 (footnote omitted). Accord, Hull v. Philadelphia & Reading R. Co., 252 U.S. 475, 479 480, 40 S.Ct. 358, 359—360, 64 L.Ed. 670 (1920). In Linstead v. Cheaspeake & Ohio R. Co., 276 U.S. 28, 48 S.Ct. 241, 72 L.Ed. 453 (1928), the Court held that the borrowed-servant test was met where an employer had made the services of several of its employees available to the C & O Railroad for a specific purpose. Linstead, a conductor employed by the Big Four Railroad was instructed to accompany a C & O train along C & O tracks between Kentucky and Ohio, under the immediate supervision of a C & O trainmaster. On these facts, the Court held that he was the 'special employee' of the C & O and could recover from that railroad under the FELA.
1
The term 'servant' as used in the Restatement expresses the same concept that 'employee' does within the meaning of the FELA. Restatement (Second) of Agency § 220, comment g.
2
Support for this point is found in the fact that, as noted by the Court of Appeals below, Congress once rejected a proposal that suppliers of accessorial services to railroads be included under the FELA. See S.Rep.No. 661, 76th Cong., 1st Sess., 2 (1939).
3
The value of examining multiple factors such as these is that is permits the analyst to avoid reliance on abstract inquiries as to kinds and degrees of control. Some factors—such as who is responsible for supervision, whose work is being performed, and who supplies the tools and place of work—are of obvious relevance. Other factors, though perhaps of less weight, are also helpful. For example, the skill of the worker and the manner in which he is paid are relevant to the ease with which control over him may be shifted from one master to another. And the length of time that the nominal servant of one master has been aiding in the business of another is likewise indicative of a shift in control.
Section 220(2) of the Restatement provides a number of factors which it states should be considered 'among others.' Another factor which might be considered in this case is that Pacific Motor Trucking Co. is a wholly owned subsidiary of respondent. The Court of Appeals noted that no case has been made for piercing the corporate veil and thus disregarding the fact that the railroad and the trucking company are separate entities. Indeed, petitioner does not urge that we do so. Brief for Petitioner 6 n. 3. If the corporate veil were to be pierced that would presumably end the inquiry, an inappropriate result on this record. Nevertheless, it seems reasonable to take into account as one of many factors the relationship between the trucking company and the respondent.
4
The majority relies on two modern cases, Baker v. Texas & Pacific R. Co., 359 U.S. 227, 79 S.Ct. 664, 3 L.Ed.2d 756 (1959), and Shenker v. Baltimore & Ohio R. Co., 374 U.S. 1, 83 S.Ct. 1667, 10 L.Ed.2d 709 (1963). But there is nothing in these cases to indicate that technical distinctions between control and cooperation are the only subjects of investigation in considering whether a master-servant relationship exists under the FELA.
*
There was testimony by PMT employees that in practice they took instructions and directions from Southern Pacific supervisors, and that failing to follow them could jeopardize their jobs. E.g., App. 57.
| 78
|
419 U.S. 428
95 S.Ct. 600.
42 L.Ed.2d 558
INTERNATIONAL TELEPHONE AND TELEGRAPH CORPORATION, COMMUNICATIONS EQUIPMENT AND SYSTEMS DIVISION, Petitioner,v.LOCAL 134, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, et al.
No. 73—1313.
Argued Nov. 19, 1974.
Decided Jan. 14, 1975.
Syllabus
Petitioner employer filed an unfair labor practice charge against respondent union under § 8(b)(4)(D) of the National Labor Relations Act (NLRA), which makes it an unfair labor practice for a labor organization to induce employees to strike to force an employer to assign particular work to employees in a particular labor organization. Section 10(k) of the NLRA provides that whenever a § 8(b)(4)(D) unfair labor practice charge is filed, the National Labor Relations Board shall hear and determine the dispute out of which such unfair labor practice arose, unless within 10 days after notice that such charge has been filed the parties submit evidence that they have adjusted the dispute, in which case or upon compliance with the Board's decision, such charge shall be dismissed. Pursuant to § 10(k) a hearing was held before a hearing officer, and subsequently the Board rendered a decision adverse to respondent, which then indicated it would not comply therewith. The Board's General Counsel thereafter issued a complaint on the unfair labor practice charge, and at a trial examiner's hearing, at which the General Counsel was represented by the same attorney who had been the hearing officer in the § 10(k) proceeding, the trial examiner concluded that respondent had violated § 8(b)(4)(D), and the Board issued a cease-and-desist order. The Court of Appeals, on respondent's petition to set aside the order, agreed that respondent had violated § 8(b)(4)(D), but refused to enforce the order, on the ground that because the § 10(k) hearing officer had participated in both the § 10(k) and the § 8(b)(4)(D) proceedings, the Board had not complied with 5 U.S.C. § 554(a), the Administrative Procedure Act (APA), which prohibits commingling prosecutorial and adjudicatory functions in agency proceedings, and generally applies to 'every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing,' 5 U.S.C. § 551(7) defining 'adjudication' as 'agency process for the formulation of an order,' and § 551(6) defining 'order' as 'the whole or a part of a final disposition . . . of an agency in a matter other than rule making.' Held: The APA, 5 U.S.C. § 554, does not govern proceedings conducted under § 10(k) of the NLRA. Pp. 441—448.
(a) The § 10(k) determination is not itself a 'final disposition' within the meaning of 'order' and 'adjudication' in the APA. When Congress defined 'order' in terms of a 'final disposition,' it required that 'final disposition' to have some determinate consequences for the party to the proceeding, and here the Board does not order anybody to do anything at the conclusion of the § 10(k) proceeding. Pp. 441—444.
(b) Nor is such determination 'agency process for the formulation of an order' within the meaning of 5 U.S.C. § 551(7). Although important practical consequences in the § 8(b)(4)(D) proceeding result from the Board's determination in the § 10(k) proceeding, they do not alone make the § 10(k) proceeding related to the § 8(b)(4)(D) proceeding in a manner that would make the former 'agency process' for the formulation of the order of the latter. The § 10(k) proceeding is unlike the typical hearing before an administrative law judge which is then subject to consideration by the agency. The issues in a § 10(k) proceeding are similar to but not identical with the focus of the § 8(b)(4)(D) proceeding. The standard of proof is different, and the inquiry in a § 8(b)(4)(D) proceeding is whether the union engaged in forbidden conduct with a forbidden objective. The proceedings are separate, and the agency makes the determination in each of them. Pp. 444—448.
486 F.2d 863, reversed and remanded.
Matthew E. Murray, Chicago, Ill., for petitioner.
Norton J. Come, Washington, D.C., for respondent NLRB in support of petitioner.
Robert E. Fitzgerald, Jr., Chicago, Ill., for respondent Local 134, IBEW.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
In 1947 Congress responded to the labor unrest caused by jurisdictional disputes by adding § 8(b)(4)(D) to the National Labor Relations Act, which made it an unfair labor practice for a labor organization to induce the employees of any employer to strike in the hopes of forcing an employer to assign particular work to employees in a particular labor organization.1 In the belief that resolution of jurisdictional disputes was more important to industrial peace than the imposition of unfair labor practice sanctions, NLRB v. Radio & Television Broadcast Engineers Union, Local 1212, 364 U.S. 573, 576—577, 81 S.Ct. 330, 332—333, 5 L.Ed.2d 302 (1961) (hereinafter CBS), Congress at the same time enacted § 10(k), 29 U.S.C. § 160(k),2 to induce unions to settle their differences without awaiting unfair labor practice proceedings and enforcement of Board orders by courts of appeals.
2
One year earlier Congress had responded to the many expressed concerns for fairness and regularity in the administrative process summarized in Wong Yang Sung v. McGrath, 339 U.S. 33, 36—41, 70 S.Ct. 445, 447—450, 94 L.Ed. 616 (1950), by enacting the Administrative Procedure Act (Act).3 Section 5 of that Act, now 5 U.S.C. § 554, establishes requirements governing certain agency proceedings that come within the Act's definition of 'adjudication.' We granted certiorari to the Court of Appeals for the Seventh Circuit in this case, 416 U.S. 981 (1974), to review its conclusion that 5 U.S.C. § 554 applied to a § 10(k) proceeding conducted by the Board, 486 F.2d 863 (1973). Another Court of Appeals had decided a short time earlier that such a Board proceeding was not subject to § 554, Bricklayers, Masons and Plasterers International Union of America v. NLRB, 155 U.S.App.D.C. 47, 475 F.2d 1316 (1973).
3
The case now before us arose out of a jurisdictional dispute between respondent Local 134 of the International Brotherhood of Electrical Workers (IBEW) (hereafter respondent) and the Communications Workers of America (CWA) over whose members would perform certain telephone installation work in Cook County, Ill. Petitioner Internicians, who were represented by the which had a nationwide collective-bargaining agreement with the CWA, had established a communications equipment and systems division to sell and install private telephone systems.4 In 1970 petitioner entered into a contract with the village of Elk Grove, Ill., for the installation and sale of a switching system and related telephone and circuitry work. Since employees of the Illinois Bell Telephone Co., who were members of respondent, had already run trunklines from the local operating telephone system to the Administrative Office of the village, petitioner's contract covered only the remaining two stages necessary to complete installation of the system. First the telephone cable had to be routed from the telephone room in the basement to the telephone instruments in particular rooms and offices by a process known as 'pulling cable'; petitioner subcontracted this work to the C. A. Riley Electric Construction Co., whose employees are represented by respondent. Second, by a process known as 'terminating the cable,' the cable would be connected to the telephone instruments. Petitioner planned to have its own technational Telephone & Telegraph Corp., CWA, perform this work.
4
C. A. Riley had hoped to perform the terminating work and inquired of petitioner's supervisor whether that was possible. The supervisor informed Riley of petitioner's plan to have its own employees do the work, and Riley told the supervisor that petitioner's representatives had better meet with the business agent of respondent. On two occasions petitioner's representatives met with the union business agent, who told them that respondent installed all telephone equipment in Cook County and that CWA members would install no telephone equipment in Cook County. On the second occasion the respondent's business agent was quite explicit: 'We'd better get that work or there will be trouble.'5
5
When CWA employees appeared at the jobsite on December 3, 1970, to begin their portion of the work, all of respondent's members left their jobs.6 That afternoon a representative of the village of Elk Grove met with petitioner's regional sales manager, and they agreed to pull petitioner's employees off the job temporarily. Representatives of respondent were informed, and all Local 134 employees thereafter returned to work.7
6
On December 3, 1970, petitioner filed a charge alleging that respondent had violated § 8(b)(4)(D) of the National Labor Relations Act, 29 U.S.C. § 158(b) (4)(D). The Board's Regional Director found reasonable cause to believe that the charge had merit and proceeded in accordance with the language of § 10(k):
7
'Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4)(D) of section 158(b) of this title, the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless, within ten days after notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed.' 29 U.S.C. § 160(k).
8
Respondent was notified that a hearing would be conducted by a hearing officer8 upon the dispute alleged in the charge, and the hearing was held on March 12, 15, and 17, 1971, with Stephen S. Schulson, an attorney in the regional office, presiding. All parties appeared at the hearing and were given full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. In accordance with NLRB regulations, the record was transmitted to the Board for decision without any recommendation from the hearing officer.9 The Board received briefs from petitioner, respondent, and the CWA, and concluded that employees represented by the CWA were entitled to perform the work in dispute. 191 N.L.R.B. 828 (1971). On August 30, 1971, respondent notified the Regional Director that it would not comply with the Board's § 10(k) determination. The Regional Director, on behalf of the Board's General Counsel, then issued a complaint upon the § 8(b) (4)(D) unfair labor practice charge that had been held in abeyance pending the attempt to resolve the dispute pursuant to the § 10(k) proceeding. At the hearing before a trial examiner, the General Counsel was represented by the same attorney who had presided over the compilation of testimony for the Board in the § 10(k) proceeding. The trial examiner concluded that respondent had violated § 8(b)(4)(D) and he recommended that it be ordered to cease its unlawful conduct; exceptions were filed with the Board10 which it overruled in ordering respondent to cease and desist from its unlawful conduct. 197 N.L.R.B. 879 (1972).
9
Respondent filed a petition to review and set aside the Board's order in the Court of Appeals for the Seventh Circuit, and the Board filed a cross-application for enforcement of its order.11 The Court of Appeals found respondent's conduct to be 'the very activity § 8(b)(4)(D) was intended to prohibit,' 486 F.2d, at 866, but refused to enforce the Board's order because it decided that the Board had not complied with the Act, 5 U.S.C. § 554.12 The court was under the impression that the parties had 'admitted that § 554 applies to § 10(k) hearings,' 486 F.2d, at 867, and regarded the participation by Schulson in both proceedings as a violation of 5 U.S.C. s 554(d), which prohibits commingling prosecutorial and adjudicatory functions. See n. 12, supra. Even though the Board had argued that the § 10(k) proceeding 'was without binding effect on anyone' so that 'it was not improper for the same person to perform the functions of hearing officer and subsequently prosecute an unfair labor practice charge based upon the evidence adduced at that hearing,' the Court of Appeals relied upon this Court's opinion in NLRB v. Plasterers' Local Union No. 79, 404 U.S. 116, 92 S.Ct. 360, 30 L.Ed.2d 312 (1971), to support its conclusion that 'the hearing officer's rulings at the § 10(k) hearing largely determine what evidence the Board will have to consider at the Unfair Labor Practice Hearing . . ..' 486 F.2d, at 866—867. With that perspective, the Court of Appeals found the attorney's participation to be 'plainly inconsistent with both the spirit and the letter of the Act.' Id., at 868.
10
* To determine whether § 554 governs proceedings conducted under § 10(k) of the National Labor Relations Act necessitates some understanding of both statutory provisions which, as noted above, were enacted within a year of each other. The Administrative Procedure Act was aptly described in Wong Yang Sung, supra, as 'a new, basic and comprehensive regulation of procedures in many agencies,' 339 U.S., at 36, 70 S.Ct., at 448. The Court there further observed that the Act 'contains many compromises and generalities and, no doubt, some ambiguities.' Id., at 40—41, 70 S.Ct., at 450. Because it was designed to regulate administrative proceedings throughout a wide spectrum of agency activities, its language is necessarily abstract in many places. The more we may know about the particular agency proceeding to which the Act is sought to be applied, the better we will be able to apply it.
11
The events leading up to the enactment of §§ 8(b)(4)(D) and 10(k) have been recounted by this Court in CBS, supra, and Plasterers' Local Union, supra, and need not here be reviewed in detail. Congress made the judgment 'that it is more important to industrial peace that jurisdictional disputes be settled permanently than it is that unfair labor practice sanctions for jurisdictional strikes be imposed upon unions.' CBS, 364 U.S., at 577, 81 S.Ct., at 333. Voluntary and therefore prompt resolution of such jurisdictional disputes is encouraged both by the 10-day grace period following notice of the filing of an unfair labor practice charge, and by the dismissal of such a charge if the union complies with the board's adverse § 10(k) determination. 29 C.F.R. § 101.36.
12
To effectuate the congressional objective of prompt resolution of jurisdictional disputes, almost from the date of the enactment of § 10(k), the Board has applied procedures to proceedings under that section that are quite different from those of a proceeding under § 8(b)(4)(D). The § 10(k) hearing is described in the Board's regulations:
13
'If the parties have not adjusted the dispute or agreed upon methods of voluntary adjustment, a hearing, usually open to the public, is held before a hearing officer. The hearing is nonadversary in character, and the primary interest of the hearing officer is to insure that the record contains as full a statement of the pertinent facts as may be necessary for a determination of the issues by the Board. All parties are afforded full opportunity to present their respective positions and to produce evidence in support of their contentions. The parties are permitted to argue orally on the record before the hearing officer. At the close of the hearing, the case is transmitted to the Board for decision. The hearing officer prepares an analysis of the issues and the evidence, but makes no recommendations in regard to resolution of the dispute.' 29 C.F.R. § 101.34.
14
Streamlined procedures were both designed and justified because 'the decision in the proceedings under Section 10(k) is a preliminary administrative determination made for the purpose of attempting to resolve a dispute within the meaning of that section; the unfair labor practice itself is litigated at a subsequent hearing before a Trial Examiner in the event the dispute remains unresolved.' National Union of Marine Cooks & Stewards (Irwin-Lyons Lumber Co.), 83 N.L.R.B. 341 (1949).13
15
The Board concluded from this analysis of the nature of the § 10(k) proceeding that the provisions of the Act governing adjudications were not applicable. While an agency's interpretation of the Act governing adjudications were not applicable, agency's interpretation of its own substantive mandate, see United States v. Florida East Coast R. Co., 410 U.S. 224, 236 n. 6, 93 S.Ct. 810, 816, 35 L.Ed.2d 223 (1973), its characterization of its own proceeding is entitled to weight, and that characterization may in turn have relevance in determining the applicability of the Act.
II
16
The question which we must decide here is whether the § 10(k) determination is an 'adjudication' governed by the Act, 5 U.S.C. § 554. The Court of Appeals did not consider in any detail whether § 554 governs § 10(k) proceedings since it was under the impression that the parties had conceded the general applicability of this section to such hearings. 486 F.2d, at 867. Petitioner and the Board contend that the Court of Appeals was mistaken with respect to any such concession, and state that they argued both in their principal briefs and in their petitions for rehearing that § 554 was not applicable. Respondent acknowledges that no such concession was made,14 and we therefore address the issue on its merits.
17
If one were to start with the proposition that all administrative action falls into one of two categories, rulemaking or adjudication, the § 10(k) determination certainly is closer to the latter than to the former. But such light as we have on the intention of Congress when it enacted the Act does not indicate that this is a sound starting point. Knowledgeable authorities in this field observed shortly after passage of the Act that 'certain types of agency action are neither rule making nor adjudication.' Ginnane, 'Rule Making,' 'Adjudication' and Exemptions Under the Administrative Procedure Act, 95 U.Pa.L.Rev. 621, 633 (1947); Netterville. The Administrative Procedure Act: A Study in Interpretation, 20 Geo.Wash.L.Rev. 1, 33 (1951); cf. Attorney General's Manual on the Administrative Procedure Act 40 (1947).
18
Secion 554 applies 'in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing,'15 and 5 U.S.C. § 551(7), defines 'adjudication' as 'agency process for the formulation of an order'; 'order' is in turn defined as 'the whole or a part of a final disposition . . . of an agency in a matter other than rule making but including licensing,' 5 U.S.C. § 551(6). While one might argue that an intermediate proceeding within an agency is necessarily a 'part' of a 'final order,' we think a sounder interpretation of the language Congress used is that the phrase 'whole or a part' refers to components of that which is itself the final disposition required by the definition of 'order' in § 551(6). Intermediate proceedings within an agency may be subject to the provisions of § 554, however, by virtue of the fact that they are 'agency process for the formulation of an order' rather than because their product is a 'part' of the final disposition. Thus if the Board's § 10(k) determination is itself a 'final disposition' of a Board proceeding or is 'agency process for the formulation' of an order in a resulting § 8(b)(4)(D) proceeding, then the § 10(k) proceeding is governed by 5 U.S.C. § 554.
19
In a tautological sense, of course, the Board's determination in a § 10(k) proceeding is a 'final disposition' of that proceeding, but we think that when Congress defined 'order' in terms of a 'final disposition,' it required that 'final disposition' to have some determinate consequences for the party to the proceeding. The Board does not order anybody to do anything at the conclusion of a § 10(k) proceeding. As the Attorney General's Manual on the Administrative Procedure Act 40 (1947) observed: '(I)nvestigatory proceedings, no matter how formal, which do not lead to the issuance of an order containing the element of final disposition as required by the definition, do not constitute adjudication.' This Court noted in Plasterers' Local Union, 404 U.S., at 126, 92 S.Ct., at 367, that 'the § 10(k) decision standing alone, binds no one.' We conclude, therefore that the § 10(k) determination is not itself a 'final disposition' within the meaning of 'order' and 'adjudication' in 5 U.S.C. § 551(6), (7).
20
Respondent's principal argument for affirmance of this case rests on the contention that although the § 10(k) determination may not itself be a 'final disposition,' and therefore an 'order,' it is 'agency process for the formulation' of the ultimate § 8(b)(4)(D) order that the Board may issue.
21
There are undoubtedly important practical consequences in the § 8(b)(4)(D) proceeding that result from the Board's determination in the § 10(k) proceeding. These were described in the following language in Plasterers' Local Union, supra, at 126—127, 92 S.Ct., at 367:
22
'(T)he impact of the § 10(k) decision is felt in the § 8(b)(4)(D) hearing because for all practical purposes the Board's award determines who will prevail in the unfair labor practice proceeding. If the picketing union persists in its conduct despite a § 10(k) decision against it, a § 8(b)(4)(D) complaint issues and the union will likely be found guilty of an unfair labor practice and be ordered to cease and desist. On the other hand, if that union wins the § 10(k) decision and the employer does not comply, the employer's § 8(b)(4)(D) case evaporates and the charges he filed against the picketing union will be dismissed. Neither the employer nor the employees to whom he has assigned the work are legally bound to observe the § 10(k) decision, but both will lose their § 8(b)(4)(D) protection against the picketing which may, as it did here, shut down the job. The employer will be under intense pressure, practically, to conform to the Board's decision. This is the design of the Act; Congress provided no other way to implement the Board's § 10(k) decision.' (Footnote omitted.)
23
But we do not think that such practical consequences alone make the § 10(k) proceeding related to the § 8(b)(4)(D) proceeding in a manner that would make the former 'agency process' for the formulation of the order in the latter. The prototype of an intermediate proceeding that is 'agency process for the formulation of an order,' is a hearing before an administrative law judge who makes findings of fact and conclusions of law, initially decides the case, and whose recommended decision 'becomes the decision of the agency . . . unless there is an appeal to, or review on motion of, the agency.' 5 U.S.C. § 557(b). All of the parties to this case, for instance, agree that the § 8(b)(4)(D) unfair labor practice hearing before the trial examiner (now administrative law judge) was subject to § 554 since it was 'agency process for the formulation of an order.'
24
The relationship between the § 10(k) proceeding and the § 8(b)(4)(D) proceeding, however, is quite distinct from the relationship between the hearing before an administrative law judge and ultimate review of his findings and recommendations by the agency. The § 10(k) proceeding has a life of its own from the time that testimony is taken in the field by a hearing officer until the time the Board, with the record of the testimony before it but with no proposed findings or conclusions or recommendations from the hearing officer, reaches its own determination. The Board's attention in the § 10(k) proceeding is not directed to ascertaining whether there is substantial evidence to show that a union has engaged in forbidden conduct with a forbidden objective. Those inquiries are left for the § 8(b)(4)(D) proceeding.16 Indeed, the Board's § 10(k) determination is not unlike an advisory opinion, since the matter may well end there. If the Board determines that employees of the charged union are entitled to the work, the § 8(b)(4)(D) charge against it will be dismissed. 29 C.F.R. § 102.91. If the Board determination is adverse to the charged union and the union accedes, the § 8(b)(4)(D) charge will be dismissed and the General Counsel will not issue a complaint. Ibid. Only if the union indicates that it will not comply with the Board's determination are further proceedings necessitated, and those proceedings will be under § 8(b)(4) (D), not § 10(k). As this Court observed in Plasterers' Local Union, 404 U.S., at 122 n. 10, 92 S.Ct., at 365:
25
'The § 10(k) determination is not binding as such even on the striking union. If that union continues to picket despite an adverse § 10(k) decision, the Board must prove the union guilty of a § 8(b)(4)(D) violation before a cease-and-desist order can issue. The findings and conclusions in a § 10(k) proceeding are not res judicata on the unfair labor practice issue in the later § 8(b)(4)(D) determination. International Typographical Union, 125 N.L.R.B. 759, 761 (1959). Both parties may put in new evidence at the § 8(b)(4)(D) stage, although often, as in the present cases, the parties agree to stipulate the record of the § 10(k) hearing as a basis for the Board's determination of the unfair labor practice. Finally, to exercise its powers under § 10(k), the Board need only find that there is reasonable cause to believe that a § 8(b)(4) (D) violation has occurred, while in the § 8(b)(4)(D) proceeding itself the Board must find by a preponderance of the evidence that the picketing union has violated § 8(b)(4)(D). International Typographical Union, supra, at 761 n. 5 (1959).'
26
In each case it is the agency itself, the National Labor Relations Board, which makes the ultimate determination. The same issues will generally be relevant, the record of the earlier proceeding will be admitted in the later one, 29 C.F.R. § 102.92, and the Board's ruling on the merits of those issues which are common to the two proceedings is likely to be the same in the one as in the other. But the proceedings are nonetheless separate; the same tribunal finally determines each of them.
27
Were we to adopt respondent's position that merely because a § 10(k) determination has a significant practical effect on the § 8(b)(4)(D) proceeding, it was therefore 'agency process for the formulation' of the § 8(b) (4)(D) order, might well sweep under the definition of that term numerous ancillary agency proceedings that are distinct from the adjudications on which they have an effect, and which the language of the Act does not appear to have been designed to reach. We therefore decline to adopt that position. We accordingly conclude that a § 10(k) determination is neither itself a final disposition under the definitional section of the Act, nor is it 'agency process for the formulation of an order' within the meaning of that section. Proceedings under s 10(k) are therefore not governed by the Act, 5 U.S.C. § 554.
28
Although the Board's § 10(k) proceedings need not be conducted pursuant to the Act, 5 U.S.C. § 554, the agency remains 'free under the Act to accord litigants appearing before it more procedural rights than the Act requires,' Florida East Coast R. Co., 410 U.S., at 236 n. 6, 93 S.Ct., at 817.17 The Board's procedures are, of course, constrained by the Due Process Clause of the Fifth Amendment, but respondent has raised no contention that attorney Schulson's participation in both proceedings approached a constitutional violation.18
29
The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.
30
It is so ordered.
31
Judgment reversed and case remanded.
1
Labor Management Relations Act, 1947, 61 Stat. 141, as amended by the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 542, § 8(b)(4) (D), 29 U.S.C. § 158(b)(4)(D), presently provides:
'(b) It shall be an unfair labor practice for a labor organization or its agents—
'(4) (i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise, handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is—
'(D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work.'
2
Title 29 U.S.C. § 160(k) provides:
'Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4)(D) of section 158(b) of this title, the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless, within ten days after notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed.'
3
60 Stat. 237, as codified by an act to enact Title 5, United States Code, 80 Stat. 378. Slight modifications in the Act sections under consideration in this case were made at the time of codification, but no substantive changes were intended. H.R.Rep. No. 901, 89th Cong., 1st Sess., 3 (1965); S.Rep. No. 1380, 89th Cong., 2d Sess., 18 (1966).
4
The division was organized to take advantage of a ruling by the Federal Communications Commission that private telephone systems could be interconnected with an operating telephone company system. Use of the Carterfone Device in Message Toll Telephone Service, 13 F.C.C.2d 420 (1968).
5
197 N.L.R.B. 879, 881 (1972).
6
The respondent's business agent had been notified the previous evening that petitioner's employees would begin their work on December 3. When petitioner's two employees reported to the basement telephone room for work, two of respondent's members, who were employed by the Illinois Bell Telephone Co., packed up their tools and left because they would not work with CWA members. Respondent's steward entered the room and demanded to see petitioner's employees' union cards. When they could not produce Local 134 membership cards, the steward announced, 'I can't work here' or 'we can't work here.' Ibid. After this comment, four or five employees of the Johnson Electric Co., who also were members of Local 134, drifted away. At a coffee break a few moments later, the steward told all the assembled members of Local 134 that he was going home because he did not want to work with 'nonunion' men. The other Local 134 members also left the jobsite at that time, and none worked on the job for the rest of the day.
7
Petitioner's employees remained off the job until December 21, at which time they returned and performed the terminating work. Respondent's members, who had worked on the project as employees of Riley, Illinois Bell, and the Johnson Electric Co., had completed their work by December 21 so that no second confrontation occurred.
8
The Board's regulations provided that a 'hearing officer' is 'the agent of the Board conducting the hearing in a proceeding under section 9 or in a dispute proceeding under section 10(k) of the act.' 29 C.F.R. § 102.6 (1971). A hearing officer 'normally is an attorney or field examiner attached to the regional office but may be another qualified official.' 29 C.F.R. § 101.20(c). The 'hearing officer' is to be distinguished from a 'trial examiner,' who presides over unfair labor practice proceedings. 29 C.F.R. § 102.6. The Board's current regulation is identical to the regulation in force at the time of the § 10(k) proceeding of the present case except that the term 'trial examiner' has been changed to 'administrative law judge,' 29 C.F.R. § 102.6(1974). See 37 Fed.Reg. 16787 (1972).
9
The Board's regulations, 29 C.F.R. § 101.34, require the hearing officer to transmit the record to the Board but provide that he shall make 'no recommendations in regard to resolution of the dispute.'
10
Exception 16 brought to the Board's attention the failure of the trial examiner to address respondent's argument that the Act had been violated by the participation of attorney Schulson in both the § 10(k) and § 8(b)(4)(D) proceedings. Since the issue of the applicability of the Act was presented to the Board, the Court of Appeals was entitled to consider the objection, and so are we. 29 U.S.C. §§ 160(e)—(f).
11
Ibid.
12
Title 5 U.S.C. § 554 provides:
'(a) This section applies, according to the provisions thereof, in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing, except to the extent that there is involved—
'(1) a matter subject to a subsequent trial of the law and the facts de novo in a court;
'(2) the selection or tenure of an employee, except a hearing examiner appointed under section 3105 of this title;
'(3) proceedings in which decisions rest solely on inspections, tests, or election;
'(4) the conduct of military or foreign affairs functions;
'(5) cases in which an agency is acting as an agent for a court; or
'(6) the certification of worker representatives.
'(b) Persons entitled to notice of an agency hearing shall be timely informed of—
'(1) the time, place, and nature of the hearings;
'(2) the legal authority and jurisdiction under which the hearing is to be held; and
'(3) the matters of fact and law asserted.
'When private persons are the moving parties, other parties to the proceeding shall give prompt notice of issues controverted in fact or law; and in other instances agencies may by rule require responsive pleading. In fixing the time and place for hearings, due regard shall be had for the convenience and necessity of the parties or their representatives.
'(c) The agency shall give all interested parties opportunity for—
'(1) the submission and consideration of facts, arguments, offers of settlement, or proposals of adjustment when time, the nature of the proceeding, and the public interest permit; and
'(2) to the extent that the parties are unable so to determine a controversy by consent, hearing and decision on notice and in accordance with sections 556 and 557 of this title.
'(d) The employee who presides at the reception of evidence pursuant to section 556 of this title shall make the recommended decision or initial decision required by section 557 of this title, unless he becomes unavailable to the agency. Except to the extent required for the disposition of ex parte matters as authorized by law, such an employee may not—
'(1) consult a person or party on a fact in issue, unless on notice and opportunity for all parties to participate; or
'(2) be responsible to or subject to the supervision or direction of an employee or agent engaged in the performance of investigative or prosecuting functions for an agency.
'An employee or agent engaged in the performance of investigative or prosecuting functions for an agency in a case may not, in that or a factually related case, participate or advise in the decision, recommended decision, or agency review pursuant to section 557
of this title, except as witness or counsel in public proceedings. This subsection does not apply—
'(A) in determining applications for initial licenses;
'(B) to proceedings involving the validity or application of rates, facilities, or practices of public utilities or carriers; or
'(C) to the agency or a member or members of the body comprising the agency.
'(e) The agency, with like effect as in the case of other orders, and in its sound discretion, may issue a declaratory order to terminate a controversy or remove uncertainty.'
13
The Board has adhered consistently to this position. See, e.g., International Longshoremen's & Warehousemen's Union (General Ore, Inc.), 124 N.L.R.B. 626, 628—629 (1959):
'It is well established that Section 8 of the Administrative Procedure Act, which provides for the issuance of the initial decision by the hearing officer, does not apply to a proceeding under Section 10(k). Under Section 101.30 of the Statements of Procedure and Section 102.80 of the Board's Rules and Regulations, Series 7, the hearing under Section 10(k) is nonadversary in character and, according to the procedure adopted therefor, conducted in the same way as a hearing in a representation proceeding. The Board adopted such procedure because the decision under Section 10(k) is a preliminary administrative determination made for the purpose of attempting to resolve a dispute within the meaning of that section. The unfair labor practice itself is litigated at a subsequent hearing before a Trial Examiner if the dispute remains unresolved. It is to the subsequent adversary proceeding, which leads to a final Board determination, that Section 8 of the Administrative Procedure Act applies. The primary function of the hearing officer, who is acting under the delegation of authority from the Board, in a nonadversary proceeding is to insure that the record contains a full statement of pertinent facts as may be necessary for the determination of the dispute by the Board. The hearing officer makes no recommendations in regard to the resolution of the dispute. While we think it better practice not to assign a Board agent who has previously engaged in the performance of investigative and prosecuting functions for the Agency to act as a hearing officer in the same or in a related case, we find that the Longshoremen in the instant case was not prejudiced by such assignment. The Longshoremen does not allege that it was denied the opportunity to present evidence in support of its contentions, or that it was prejudiced in any other manner by the conduct of the hearing officer.' (Footnotes omitted.) In General Ore, unlike the present case, the hearing officer had previously represented the General Counsel in proceedings factually related to the § 10(k) proceeding at which he later presided.
14
Tr. of Oral Arg. 20.
15
The Board, which did not join with petitioner in seeking review of this case but which is nevertheless a party to the case under this Court's Rule 21(4), urges that even if the § 10(k) proceeding is an 'adjudication' under the Act, the language in § 10(k) directing the Board 'to hear and determine the dispute' is not sufficient to bring the proceeding within the language of 5 U.S.C. § 554, which operates in the case of adjudications 'required by statute to be determined on the record after opportunity for an agency hearing.' In light of our disposition of the case it is unnecessary to address this contention.
16
The Board's power under § 10(k) depend upon whether there is reasonable cause to believe that § 8(b)(4)(D) has been violated. In the present case the Board reviewed the record compiled by the hearing officer and concluded that the requisite reasonable cause existed. The respondent suggested that certain testimonial evidence was incredible, but the Board observed:
'In a jurisdictional dispute context, the Board is not charged with finding that a violation did in fact occur, but only that there is reasonable cause to believe that there has been a violation. On this testimony, and without ruling on the credibility of the testimony in issue, we are satisfied that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred.' 191 N.L.R.B., at 830 (footnotes omitted).
By contrast, a union can be found guilty of committing an unfair labor practice only if a violation is established by a preponderance of the evidence. 29 U.S.C. § 160(c).
17
The Board indicates that '(i)t is not general practice to use the same person who hears the Section 10(k) case to investigate and prosecute the subsequent Section 8(b)(4)(D) case.' Memorandum for the N.L.R.B. 4 n. 4.
18
There is a suggestion in the opinion of the Court of Appeals that the Board's order should not be enforced even if the Act does not govern the § 10(k) proceeding because the commingling of functions was 'incompatible with the accepted norms for the proper administration of justice.' 486 F.2d 863, 868. Cf. Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616 (1950). In the present case, however, attorney Schulson prosecuted the case for the General Counsel after he had presided at the § 10(k) proceeding. Even if it be assumed that his function at the § 10(k) proceeding was judicial in nature, it is hard to see how this sequence of events would present the danger of commingling which the Court of Appeals saw. The Court of Appeals may have confused 'hearing officers' with 'trial examiners' or 'hearing examiners' (now 'administrative law judges') who are ordinarily required to make recommended decisions, 5 U.S.C. § 557(b), and who must be appointed pursuant to 5 U.S.C. § 3105. 486 F.2d, at 867 n. 3.
| 67
|
419 U.S. 393
95 S.Ct. 553
42 L.Ed.2d 532
Carol Maureen SOSNA, etc., Appellant,v.State of IOWA et al.
No. 73—762.
Argued Oct. 17, 1974.
Decided Jan. 14, 1975.
Syllabus
Appellant's petition for divorce was dismissed by an Iowa trial court for lack of jurisdiction because she failed to meet the Iowa statutory requirement that a petitioner in a divorce action be a resident of the State for one year preceding the filing of the petition. Appellant then brought a class action under Fed.Rule Civ.Proc. 23 in the Federal District Court against appellees State and state trial judge, asserting that Iowa's durational residency requirement violated the Federal Constitution on equal protection and due process grounds and seeking injunctive and declaratory relief. After certifying that appellant represented the class of persons residing in Iowa for less than a year who desired to initiate divorce actions, the three-judge District Court upheld the constitutionality of the statute. Held:
1. The fact that appellant had long since satisfied the durational residency requirement by the time the case reached this Court does not moot the case, since the controversy remains very much alive for the class of unnamed persons whom she represents and who, upon certification of the class action, acquired a legal status separate from her asserted interest. Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274. Pp. 397—403.
(a) Where, as here, the issue sought to be litigated escapes full appellate review at the behest of any single challenger, the case does not inexorably become moot by the intervening resolution of the controversy as to the named plaintiffs. P. 401.
(b) At the time the class action was certified, appellant demonstrated a 'real and immediate' threat of injury and belonged to the class that she sought to represent. Pp. 402—403.
(c) The test of Rule 23(a) that the named representative in a class action 'fairly and adequately protect the interests of the class,' is met here, where it is unlikely that segments of the class represented would have interests conflicting with appellant's, and the interests of the class have been competently urged at each level of the proceeding. P. 403.
2. The Iowa durational residency requirement for divorce is not unconstitutional. Pp. 404—410.
(a) Such requirement is not unconstitutional on the alleged ground that it establishes two classes of persons and discriminates against those who have recently exercised their right to travel to Iowa. Appellant was not irretrievably foreclosed from obtaining some part of what she sought, and such requirement may reasonably be justified on grounds of the State's interest in requiring those seeking a divorce from its courts to be genuinely attached to the State, as well as of the State's desire to insulate its divorce decrees from the likelihood of successful collateral attack. Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600; Dunn, supra; Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306, distinguished. Pp. 406—409.
(b) Nor does the durational residency requirement violate the Due Process Clause of the Fourteenth Amendment on the asserted ground that it denies a litigant the opportunity to make an individualized showing of bona fide residence and thus bars access to the divorce courts. Even if appellant could make an individualized showing of physical presence plus the intent to remain, she would not be entitled to a divorce, for Iowa requires not merely 'domicile' in that sense, but residence in the State for one year. See Vlandis v. Kline, 412 U.S. 441, 452, 93 S.Ct. 2230, 2236, 37 L.Ed.2d 63. Moreover, no total deprivation of access to divorce courts but only delay in such access is involved here. Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113, distinguished. Pp. 409—401.
D.C., 360 F.Supp. 1182, affirmed.
James H. Reynolds, Dubuque, Iowa, for appellant.
Elizabeth A. Nolan, Des Moines, Iowa, for appellees.
Mr. Justice REHNQUIST delivered the opinion of the Court.
1
Appellant Carol Sosna married Michael Sosna on September 5, 1964, in Michigan. They lived together in New York between October 1967 and August 1971, after which date they separated but continued to live in New York. In August 1972, appellant moved to Iowa with her three children, and the following month she petitioned the District Court of Jackson County, Iowa, for a dissolution of her marriage. Michael Sosna, who had been personally served with notice of the action when he came to Iowa to visit his children, made a special appearance to contest the jurisdiction of the Iowa court. The Iowa court dismissed the petition for lack of jurisdiction, finding that Michael Sosna was not a resident of Iowa and appellant had not been a resident of the State of Iowa for one year preceding the filing of her petition. In so doing the Iowa court applied the provisions of Iowa Code § 598.6 (1973) requiring that the petitioner in such an action be 'for the last year a resident of the state.'1
2
Instead of appealing this ruling to the Iowa appellate courts, appellant filed a complaint in the United States District Court for the Northern District of Iowa asserting that Iowa's durational residency requirement for invoking its divorce jurisdiction violated the United States Constitution. She sought both injunctive and declaratory relief against the appellees in this case, one of whom is the State of Iowa,2 and the other of which is the judge of the District Court of Jackson County, Iowa, who had previously dismissed her petition.
3
A three-judge court, convened pursuant to 28 U.S.C. §§ 2281, 2284, held that the Iowa durational residency requirement was constitutional. 360 F.Supp. 1182 (1973). We noted probable jurisdiction, 415 U.S. 911, 94 S.Ct. 1405, 39 L.Ed.2d 465 (1974), and directed the parties to discuss 'whether the United States District Court should have proceeded to the merits of the constitutional issue presented in light of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) and related cases.' For reasons stated in this opinion, we decide that this case is not moot, and hold that the Iowa durational residency requirement for divorce does not offend the United States Constitution.3
4
* Appellant sought certification of her suit as a class action pursuant to Fed.Rule Civ.Proc. 23 so that she might represent the 'class of those residents of the State of Iowa who have resided therein for a period of less than one year and who desire to initiate actions for dissolution of marriage or legal separation, and who are barred from doing so by the one-year durational residency requirement embodied in Sections 598.6 and 598.9 of the Code of Iowa.'4 The parties stipulated that there were in the State of Iowa 'numerous people in the same situation as plaintiff,' that joinder of those persons was impracticable, that appellant's claims were representative of the class, and that she would fairly and adequately protect the interests of the class. See Rule 23(a). This stipulation was approved by the District Court in a pretrial order.5 After the submission of briefs and proposed findings of fact and conclusions of law by the parties, the three-judge court by a divided vote upheld the constitutionality of the statute.
5
While the parties may be permitted to waive nonjurisdictional defects, they may not by stipulation invoke the judicial power of the United States in litigation which does not present an actual 'case or controversy,' Richardson v. Ramirez, 418 U.S. 24, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974), and on the record before us we feel obliged to address the question of mootness before reaching the merits of appellant's claim. At the time the judgment of the three-judge court was handed down, appellant had not yet resided in Iowa for one year, and that court was clearly presented with a case or controversy in every sense contemplated by Art. III of the Constitution.6 By the time her case reached this Court, however, appellant had long since satisfied the Iowa durational residency requirement, and Iowa Code § 598.6 (1973) no longer stood as a barrier to her attempts to secure dissolution of her marriage in the Iowa courts.7 This is not an unusual development in a case challenging the validity of a durational residency requirement, for in many cases appellate review will not be completed until after the plaintiff has satisfied the residency requirement about which complaint was originally made.
6
If appellant had sued only on her own behalf, both the fact that she now satisfies the one-year residency requirement and the fact that she has obtained a divorce elsewhere would make this case moot and require dismissal. Alton v. Alton, 207 F.2d 667 (CA3 1950), dismissed as moot, 347 U.S. 610, 74 S.Ct. 736, 98 L.Ed. 987 (1954); SEC v. Medical Committee for Human Rights, 404 U.S. 403, 92 S.Ct. 577, 30 L.Ed.2d 560 (1972). But appellant brought this suit as a class action and sought to litigate the constitutionality of the durational residency requirement in a representative capacity. When the District Court certified the propriety of the class action, the class of unnamed persons described in the certification acquired a legal status separate from the interest asserted by appellant.8 We are of the view that this factor significantly affects the mootness determination.
7
In Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911), where a challenged ICC order had expired, and in Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969), where petitioners sought to be certified as candidates in an election that had already been held, the Court expressed its concern that the defendants in those cases could be expected again to act contrary to the rights asserted by the particular named plaintiffs involved, and in each case the controversy was held not to be moot because the questions presented were 'capable of repetition, yet evading review.' That situation is not presented in appellant's case, for the durational residency requirement enforced by Iowa does not at this time bar her from the Iowa courts. Unless we were to speculate that she may move from Iowa, only to return and later seek a divorce within one year from her return, the concerns that prompted this Court's holdings in Southern Pacific and Moore do not govern appellant's situation. But even though appellees in this proceeding might not again enforce the Iowa durational residency requirement against appellant, it is clear that they will enforce it against those persons in the class that appellant sought to represent and that the District Court certified. In this sense the case before us is one in which state officials will undoubtedly continue to enforce the challenged statute and yet, because of the passage of time, no single challenger will remain subject to its restrictions for the period necessary to see such a lawsuit to its conclusion.
8
This problem was present in Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), and was there implicitly resolved in favor of the representative of the class. Respondent Blumstein brought a class action challenging the Tennessee law which barred persons from registering to vote unless, at the time of the next election, they would have resided in the State for a year and in a particular county for three months. By the time the District Court opinion was filed, Blumstein had resided in the county for the requisite three months, and the State contended that his challenge to the county requirement was moot. The District Court rejected this argument, Blumstein v. Ellington, 337 F.Supp. 323, 324—326 (M.D.Tenn.1970). Although the State did not raise a mootness argument in this Court, we observed that the District Court had been correct:
9
'Although appellee now can vote, the problem to voters posed by the Tennessee residence requirements is "capable of repetition, yet evading review.'" 405 U.S., at 333 n. 2, 92 S.Ct., at 998.
10
Although the Court did not expressly note the fact, by the time it decided the case Blumstein had resided in Tennessee for far more than a year.
11
The rationale of Dunn controls the present case. Although the controversy is no longer alive as to appellant Sosna, it remains very much alive for the class of persons she has been certified to represent. Like the other voters in Dunn, new residents of Iowa are aggrieved by an allegedly unconstitutional statute enforced by state officials. We believe that a case such as this, in which, as in Dunn, the issue sought to be litigated escapes full appellate review at the behest of any single challenger, does not inexorably become moot by the intervening resolution of the controversy as to the named plaintiffs.9 Dunn, supra; Rosario v. Rockefeller, 410 U.S. 752, 756 n. 5, 93 S.Ct. 1245, 1249, 36 L.Ed.2d 1 (1973); Vaughan v. Bower, 313 F.Supp. 37, 40 (Ariz.), aff'd, 400 U.S. 884, 91 S.Ct. 139, 27 L.Ed.2d 129 (1970).10 We note, however, that the same exigency that justifies this doctrine serves to identify its limits. In cases in which the alleged harm would not dissipate during the normal time required for resolution of the controversy, the general principles of Art. III jurisdiction require that the plaintiff's personal stake in the litigation continue throughout the entirety of the litigation.
12
Our conclusion that this case is not moot in no way detracts from the firmly established requirement that the judicial power of Art. III courts extends only to 'cases and controversies' specified in that Article. There must not only be a named plaintiff who has such a case or controversy at the time the complaint is filed, and at the time the class action is certified by the District Court pursuant to Rule 23,11 but there must be a live controversy at the time this Court reviews the case.12 SEC v. Medical Committee for Human Rights, supra. The controversy may exist, however, between a named defendant and a member of the class represented by the named plaintiff, even though the claim of the named plaintiff has become moot.
13
In so holding, we disturb no principles established by our decisions with respect to class-action litigation. A named plaintiff in a class action must show that the threat of injury in a case such as this is 'real and immediate,' not 'conjectural' or 'hypothetical.' O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974); Golden v. Zwickler, 394 U.S. 103, 109—110, 89 S.Ct. 956, 960—961, 22 L.Ed.2d 113 (1969). A litigant must be a member of the class which he or she seeks to represent at the time the class action is certified by the district court. Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962); Rosario, supra; Hall v. Beals, 396 U.S. 45, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969). Appellant Sosna satisfied these criteria.
14
This conclusion does not automatically establish that appellant is entitled to litigate the interests of the class she seeks to represent, but it does shift the focus of examination from the elements of justiciability to the ability of the named representative to 'fairly and adequately protect the interests of the class.' Rule 23(a). Since it is contemplated that all members of the class will be bound by the ultimate ruling on the merits, Rule 23(c)(3), the district court must assure itself that the named representative will adequately protect the interests of the class. In the present suit, where it is unlikely that segments of the class appellant represents would have interests conflicting with those she has sought to advance,13 and where the interests of that class have been competently urged at each level of the proceeding, we believe that the test of Rule 23(a) is met. We therefore address ourselves to the merits of appellant's constitutional claim.
II
15
The durational residency requirement under attack in this case is a part of Iowa's comprehensive statutory regulation of domestic relations, an area that has long been regarded as a virtually exclusive province of the States. Cases decided by this Court over a period of more than a century bear witness to this historical fact. In Barber v. Barber, 21 How. 582, 584, 16 L.Ed. 226 (1859), the Court said: 'We disclaim altogether any jurisdiction in the courts of the United States upon the subject of divorce . . ..' In Penoyer v. Neff, 95 U.S. 714, 734—735, 24 L.Ed. 565 (1878), the Court said: 'The State . . . has absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved,' and the same view was reaffirmed in Simms v. Simms, 175 U.S. 162, 167, 20 S.Ct. 58, 60, 44 L.Ed. 115 (1899).
16
The statutory scheme in Iowa, like those in other States, sets forth in considerable detail the grounds upon which a marriage may be dissolved and the circumstances in which a divorce may be obtained. Jurisdiction over a petition for dissolution is established by statute in 'the county where either party resides,' Iowa Code § 598.2 (1973), and the Iowa courts have construed the term 'resident' to have much the same meaning as is ordinarily associated with the concept of domicile. Korsrud v. Korsrud, 242 Iowa 178, 45 N.W.2d 848 (1951). Iowa has recently revised its divorce statutes, incorporating the no-fault concept,14 but it retained the one-year durational residency requirement.
17
The imposition of a durational residency requirement for divorce is scarcely unique to Iowa, since 48 States impose such a requirement as a condition for maintaining an action for divorce.15 As might be expected, the periods vary among the States and range from six weeks16 to two years.17 The one-year period selected by Iowa is the most common length of time prescribed.18
18
Appellant contends that the Iowa requirement of one year's residence is unconstitutional for two separate reasons: first, because it establishes two classes of persons and discriminates against those who have recently exercised their right to travel to Iowa, thereby contravening the Court's holdings in Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); and Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974); and, second, because it denies a litigant the opportunity to make an individualized showing of bona fide residence and therefore denies such residents access to the only method of legally dissolving their marriage. Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973); Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780 (1971).
19
State statutes imposing durational residency requirements were, of course, invalidated when imposed by States as a qualification for welfare payments, Shapiro, supra; for voting, Dunn, supra; and for medical care, Maricopa County, supra. But none of those cases intimated that the States might never impose durational residency requirements, and such a proposition was in fact expressly disclaimed.19 What those cases had in common was that the durational residency requirements they struck down were justified on the basis of budgetary or recordkeeping considerations which were held insufficient to outweigh the constitutional claims of the individuals. But Iowa's divorce residency requirement is of a different stripe. Appellant was not irretrievably foreclosed from obtaining some part of what she sought, as was the case with the welfare recipients in Shapiro, the voters in Dunn, or the indigent patient in Maricopa County. She would eventually qualify for the same sort of adjudication which she demanded virtually upon her arrival in the State. Iowa's requirement delayed her access to the courts, but, by fulfilling it, she could ultimately have obtained the same opportunity for adjudication which she asserts ought to have been hers at an earlier point in time.
20
Iowa's residency requirement may reasonably be justified on grounds other than purely budgetary considerations or administrative convenience. Cf. Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974). A decree of divorce is not a matter in which the only interested parties are the State as a sort of 'grantor,' and a divorce petitioner such as appellant in the role of 'grantee.' Both spouses are obviously interested in the proceedings, since it will affect their marital status and very likely their property rights. Where a married couple has minor children, a decree of divorce would usually include provisions for their custody and support. With consequences of such moment riding on a divorce decree issued by its courts, Iowa may insist that one seeking to initiate such a proceeding have the modicum of attachment to the State required here.
21
Such a requirement additionally furthers the State's parallel interests both in avoiding officious intermeddling in matters in which another State has a paramount interest, and in minimizing the susceptibility of its own divorce decrees to collateral attack. A State such as Iowa may quite reasonably decide that it does not wish to become a divorce mill for uphappy spouses who have lived there as short a time as appellant had when she commenced her action in the state court after having long resided elsewhere. Until such time as Iowa is convinced that appellant intends to remain in the State, it lacks the 'nexus between person and place of such permanence as to control the creation of legal relations and responsibilities of the utmost significance.' Williams v. North Carolina, 325 U.S. 226, 229, 65 S.Ct. 1092, 1095, 89 L.Ed. 1577 (1945). Perhaps even more important, Iowa's interests extend beyond its borders and include the recognition of its divorce decrees by other States under the Full Faith and Credit Clause of the Constitution, Art. IV, § 1. For that purpose, this Court has often stated that 'judicial power to grant a divorce—jurisdiction, strictly speaking—is founded on domicil.' Williams, supra; Andrews v. Andrews, 188 U.S. 14, 23 S.Ct. 237, 47 L.Ed. 366 (1903); Bell v. Bell, 181 U.S. 175, 21 S.Ct. 551, 45 L.Ed. 804 (1901). Where a divorce decree is entered after a finding of domicile in ex parte proceedings,20 this Court has held that the finding of domicile is not binding upon another State and may be disregarded in the face of 'cogent evidence' to the contrary. Williams, supra, 325 U.S. at 236, 65 S.Ct. at 1098. For that reason, the State asked to enter such a decree is entitled to insist that the putative divorce petitioner satisfy something more than the bare minimum of constitutional requirements before a divorce may be granted. The State's decision to exact a one-year residency requirement as a matter of policy is therefore buttressed by a quite permissible inference that this requirement not only effectuates state substantive policy but likewise provides a greater safeguard against successful collateral attack than would a requirement of bona fide residence alone.21 This is precisely the sort of determination that a State in the exercise of its domestic relations jurisdiction is entitled to make.
22
We therefore hold that the state interest in requiring that those who seek a divorce from its courts be genuinely attached to the State, as well as a desire to insulate divorce decrees from the likelihood of collateral attack, requires a different resolution of the constitutional issue presented than was the case in Shapiro, supra, Dunn, supra, and Maricopa County, supra.
23
Nor are we of the view that the failure to provide an individualized determination of residency violates the Due Process Clause of the Fourteenth Amendment. Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973), relied upon by appellant, held that Connecticut might not arbitrarily invoke a permanent and irrebuttable presumption of non-residence against students who sought to obtain in-state tuition rates when that presumption was not necessarily or universally true in fact. But in Vlandis the Court warned that its decision should not '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.' Id., at 452, 93 S.Ct. at 2236. See 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). An individualized determination of physical presence plus the intent to remain, which appellant apparently seeks, would not entitle her to a divorce even if she could have made such a showing.22 For Iowa requires not merely 'domicile' in that sense, but residence in the State for a year in order for its courts to exercise their divorce jurisdiction.
24
In Boddie v. Connecticut, supra, this Court held that Connecticut might not deny access to divorce courts to those persons who could not afford to pay the required fee. Because of the exclusive role played by the State in the termination of marriages, it was held that indigents could not be denied an opportunity to be heard 'absent a countervailing state interest of overriding significance.' 401 U.S., at 377, 91 S.Ct., at 785. But the gravamen of appellant Sosna's claim is not total deprivation, as in Boddie, but only delay. The operation of the filing fee in Boddie served to exclude forever a certain segment of the population from obtaining a divorce in the courts of Connecticut. No similar total deprivation is present in appellant's case, and the delay which attends the enforcement of the one-year durational residency requirement is, for the reasons previously stated, consistent with the provisions of the United States Constitution.
25
Affirmed.
26
Mr. Justice WHITE, dissenting.
27
It is axiomatic that Art. III of the Constitution imposes a 'threshold requirement . . . that those who seek to invoke the power of federal courts must allege an actual case or controversy.' O'Shea v. Littleton, 414 U.S. 488, 493, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974); Flast v. Cohen, 392 U.S. 83, 94 101, 88 S.Ct. 1942, 1949—1953, 20 L.Ed.2d 947 (1968); Jenkins v. McKeithen, 395 U.S. 411, 421—425, 89 S.Ct. 1843, 1848—1851, 23 L.Ed.2d 404 (1969) (opinion of Marshall, J.). To satisfy the requirement, plaintiffs must allege 'some threatened or actual injury,' Linda R.S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973), that is 'real and immediate' and not conjectural or hypothetical. Golden v. Zwickler, 394 U.S. 103, 108 109, 89 S.Ct. 956, 959—960, 22 L.Ed.2d 113 (1969); Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941); United Public Workers v. Mitchell, 330 U.S. 75, 89—91, 67 S.Ct. 556, 564, 565, 91 L.Ed. 754 (1947). Furthermore, and of greatest relevance here:
28
'The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated. The 'gist of the question of standing' is whether the party seeking relief has 'alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.' Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). In other words, when standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable.' Flast v. Cohen, supra, 392 U.S. at 99 100, 88 S.Ct. at 1952. (footnote omitted).
29
All of this the Court concedes. It is conceded as well that had the named plaintiff in this case not brought a class action, the case would now be dismissed as moot because the plaintiff, appellant here, has now satisfied the Iowa residency requirement and, what is more, has secured a divorce in another State. Appellant could not have begun this suit either for herself or for a class if at the time of filing she had been an Iowa resident for a year or had secured a divorce in another jurisdiction. There must be a named plaintiff initiating the action who has an existing controversy with the defendant, whether the plaintiff is suing on his own behalf or on behalf of a class as well. However unquestioned it may be that a class of persons in the community has a 'real' dispute of substance with the defendant, an attorney may not initiate a class action without having a client with a personal stake in the controversy who is a member of the class, and who is willing to be the named plaintiff in the case. The Court recently made this very clear when it said that 'if none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class.' O'Shea v. Littleton, supra, 414 U.S. at 494, 94 S.Ct. at 675. (footnote omitted).
30
The Court nevertheless holds that once a case is certified as a class action, the named plaintiff may lose that status which had qualified him to bring the suit and still be acceptable as a party to prosecute the suit to conclusion on behalf of the class. I am unable to agree. The appellant now satisfies the Iowa residence requirement and has secured a divorce. She retains no real interest whatsoever in this controversy, certainly not an interest that would have entitled her to be a plaintiff in the first place, either alone or as representing a class. In reality, there is no longer a named plaintiff in the case, no member of the class before the Court. The unresolved issue, the attorney, and a class of unnamed litigants remain. None of the anonymous members of the class is present to direct counsel and ensure that class interests are being properly served. For all practical purposes, this case has become one-sided and has lost the adversary quality necessary to satisfy the constitutional 'case or controversy' requirement. A real issue unquestionably remains, but the necessary adverse party to press it has disappeared.
31
The Court thus dilutes the jurisdictional command of Art. III to a mere prudential guideline. The only specific, identifiable individual with an evident continuing interest in presenting an attack upon the residency requirement is appellant's counsel. The Court in reality holds that an attorney's competence in presenting his case, evaluated post hoc through a review of his performance as revealed by the record, fulfills the 'case or controversy' mandate. The legal fiction employed to cloak this reality is the reification of an abstract entity, 'the class,' constituted of faceless, unnamed individuals who are deemed to have a live case or controversy with appellees.1
32
No prior decision supports the Court's broad rationale. In cases in which the inadequacy of the named representative's claim has become apparent prior to class certification, the Court has been emphatic in rejecting the argument that the class action could still be pursued. O'Shea v. Littleton, supra, 414 U.S. at 494—495, 94 S.Ct. at 675—676; Bailey v. Patterson, 369 U.S. 31, 32 33, 82 S.Ct. 549, 550—551, 7 L.Ed.2d 512 (1962). Cf. Richardson v. Ramirez, 418 U.S. 24, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974); Hall v. Beals, 396 U.S. 45, 48—49, 90 S.Ct. 200, 201—202, 24 L.Ed.2d 214 (1969).
33
It is true that Dunn v. Blumstein, 405 U.S. 330, 333, 92 S.Ct. 995, 998, 31 L.Ed.2d 274 n. 2 (1972), looks in the other direction. There, by the time the Court rendered its decision, the class representative in an action challenging a durational residency requirement for voting had satisfied the requirement and was eligible to vote in the next election. The Court indicated that the case was not moot, saying that the issue was 'capable of repetition, yet evading review.' But the question was not contested between the parties and was noted only in passing. Its ramifications for the question of mootness in a class action setting were not explored. Although I joined the opinion in that case, I do not deem it dispositive of the jurisdictional issue here, especially in light of Indiana Employment Security Division v. Burney, 409 U.S. 540, 93 S.Ct. 883, 35 L.Ed.2d 62 (1973). There the class representative's claim had been fully settled, and the Court remanded the case to the District Court for consideration of mootness, a course which the majority, relying on Dunn, rejects here. As I see it, the question of whether a class action survives after the representative's claim has been mooted remains unsettled by prior decisions. Indeed, what authority there is provides more support for a conclusion that when the personal stake of the named plaintiff terminates, the class action fails.
34
Although the Court cites Dunn v. Blumstein, supra, as controlling authority, the principal basis for its approach is a conception of the class action that substantially dissipates the case-or-controversy requirement as well as the necessity for adequate representation under Fed.Rule Civ.Proc. 23(a)(4). In the Court's view, the litigation before us is saved from mootness only by the fact that class certification occurred prior to appellant's change in circumstance. In justification, the Court points to two significant consequences of certification. First, once certified, the class action may not be settled or dismissed without the district court's approval. Second, if the action results in a judgment on the merits, the decision will bind all members found at the time of certification to be members of the class. These are significant aspects of class-action procedure, but it is not evident and not explained how and why these procedural consequences of certification modify the normal mootness considerations which would otherwise attach. Certification is no substitute for a live plaintiff with a personal interest in the case sufficient to make it an adversary proceeding. Moreover, certification is not irreversible or inalterable; it 'may be conditional, and may be altered or amended before the decision on the merits.' Rule 23(c)(1).2 Furthermore, under Rule 23(d) the court may make various types of orders in conducting the litigation, including an order that notice be given 'of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action' and 'requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent persons . . ..'3 Class litigation is most often characterized by its complexity and concomitant flexibility of a court in managing it, and emphasis upon one point in the process flies in the face of that reality.
35
The new certification procedure of Rule 23(c)(1), as amended in 1966, was not intended to modify the strictures of Fed.Rule Civ.Proc., 82 that '(t)hese rules shall not be construed to extend . . . the jurisdiction of the United States district courts . . ..' Cf. Snyder v. Harris, 394 U.S. 332, 337—338, 89 S.Ct. 1053, 1057, 22 L.Ed.2d 319 (1969). The intention behind the certification amendment, which had no counterpart in the earlier version of the rule, was merely 'to give clear definition to the action . . .,' Advisory Committee Note, 28 U.S.C.App., p. 7767; 3B J. Moore, Federal Practice 23.50, pp. 23—1101 to 23—1102 (1974), not as the Court would now have it, to avoid jurisdictional problems of mootness.4
36
It is claimed that the certified class supplies the necessary adverse parties for a continuing case or controversy with appellees. This is not true; but even if it were, the Court is left with the problem of determining whether the class action is still a good one and whether under Rule 23(a)(4) appellant is a fair and adequate representative of the class. That appellant can no longer in any realistic sense be considered a member of the class makes these determinations imperative. The Court disposes of the problem to its own satisfaction by saying that it is unlikely that segments of the class appellant represents would have conflicting interests with those she has sought to advance and that because the interests of the class have been competently urged at each level of the proceeding the test of Rule 23(a)(4) is met. The Court cites no authority for this retrospective decision as to the adequacy of representation which seems to focus on the competence of counsel rather than a party plaintiff who is a representative member of the class.5 At the very least, the case should be remanded to the District Court where these considerations could be explored and the desirability of issuing orders under Rule 23(d) to protect the class might be considered.
37
The Court's refusal to remand for consideration of mootness and adequacy of representation can be explained only by its apparent notion that there may be categories of issues which will permit lower courts to pass upon them but which by their very nature will become moot before this Court can address them. Thus it is said that 'no single challenger will remain subject to (the residency requirement) for the period necessary to see such a lawsuit to its conclusion.' Ante, at 400. Hence, the Court perceives the need for a general rule which will eliminate the problem. Article III, however, is an 'awkward' limitation. It prevents all federal courts from addressing some important questions; there is nothing surprising in the fact that it may permit only the lower federal courts to address other questions. Article III is not a rule always consistent with judicial economy. Its overriding purpose is to define the boundaries separating the branches and to keep this Court from assuming a legislative perspective and function. See Flast v. Cohen, 392 U.S. 83, 96, 88 S.Ct. 1942, 1950, 20 L.Ed.2d 947 (1968). The ultimate basis of the Court's decision must be a conclusion that the issue presented is an important and recurring one which should be finally resolved here. But this notion cannot override constitutional limitations.
38
Because I find that the case before the Court has become moot, I must respectfully dissent.
39
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
40
The Court today departs sharply from the course we have followed in analyzing durational residency requirements since Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). Because I think the principles set out in that case and its progeny compel reversal here, I respectfully dissent.
41
As we have made clear in Shapiro and subsequent cases, any classification that penalizes exercise of the constitutional right to travel is invalid unless it is justified by a compelling governmental interest. As recently as last Term we held that the right to travel requires that States provide the same vital governmental benefits and privileges to recent immigrants that they do to long-time residents. Memorial Hospital v. Maricopa County, 415 U.S. 250, 261, 94 S.Ct. 1076, 1083, 39 L.Ed.2d 306 (1974). Although we recognized that not all durational residency requirements are penalties upon the exercise of the right to travel interstate,1 we held that free medical aid, like voting, see Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), and welfare assistance, see Shapiro v. Thompson, supra, was of such fundamental importance that the State could not constitutionally condition its receipt upon long-term residence. After examining Arizona's justifications for restricting the availability of free medical services, we concluded that the State had failed to show that in pursuing legitimate objectives it had chosen means that did not impinge unnecessarily upon constitutionally protected interests.
42
The Court's failure to address the instant case in these terms suggests a new distaste for the mode of analysis we have applied to this corner of equal protection law. In its stead, the Court has employed what appears to be an ad hoc balancing test, under which the State's putative interest in ensuring that its divorce petitioners establish some roots in Iowa is said to justify the one-year residency requirement. I am concerned not only about the disposition of this case, but also about the implications of the majority's analysis for other divorce statutes and for durational residency requirement cases in general.
43
* The Court omits altogether what should be the first inquiry: whether the right to obtain a divorce is of sufficient importance that its denial to recent immigrants constitutes a penalty on interstate travel. In my view, it clearly meets that standard. The previous decisions of this Court make it plain that the right of marital association is one of the most basic rights conferred on the individual by the State. The interests associated with marriage and divorce have repeatedly been accorded particular deference, and the right to marry has been termed 'one of the vital personal rights essential to the orderly pursuit of happiness by free men.' Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1824, 18 L.Ed.2d 1010 (1967). In Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), we recognized that the right to seek dissolution of the marital relationship was closely related to the right to marry, as both involve the voluntary adjustment of the same fundamental human relationship. Id., at 383, 91 S.Ct. at 788. Without further laboring the point, I think it is clear beyond cavil that the right to seek dissolution of the marital relationship is of such fundamental importance that denial of this right to the class of recent interstate travelers penalizes interstate travel within the meaning of Shapiro, Dunn, and Maricopa County.
II
44
Having determined that the interest in obtaining a divorce is of substantial social importance, I would scrutinize Iowa's durational residency requirement to determine whether it constitutes a reasonable means of furthering important interests asserted by the State. The Court, however, has not only declined to apply the 'compelling interest' test to this case, it has conjured up possible justifications for the State's restriction in a manner much more akin to the lenient standard we have in the past applied in analyzing equal protection challenges to business regulations. See McGowan v. Maryland, 366 U.S. 420, 425—428, 81 S.Ct. 1101, 1104—1106, 6 L.Ed.2d 393 (1961); Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552, 557, 67 S.Ct. 910, 912, 91 L.Ed. 1093 (1947); but see Johnson v. Robison, 415 U.S. 361, 376, 94 S.Ct. 1160, 1170, 39 L.Ed.2d 389 (1974). I continue to be of the view that the 'rational basis' test has no place in equal protection analysis when important individual interests with constitutional implications are at stake, see San Antonio School District v. Rodriguez, 411 U.S. 1, 109, 93 S.Ct. 1278, 1335, 36 L.Ed.2d 16 (1973) (Marshall, J., dissenting); Dandridge v. Williams, 397 U.S. 471, 520—522, 90 S.Ct. 1153, 1179—1180, 25 L.Ed.2d 491 (1970) (Marshall, J., dissenting). But whatever the ultimate resting point of the current readjustments in equal protection analysis, the Court has clearly directed that the proper standard to apply to cases in which state statutes have penalized the exercise of the right to interstate travel is the 'compelling interest' test. Shapiro v. Thompson, 394 U.S., at 634, 638, 89 S.Ct. at 1331, 1333; Oregon v. Mitchell, 400 U.S. 112, 238, 91 S.Ct. 260, 321—322, 27 L.Ed.2d 272 (1970) (opinion of Brennan, White, and Marshall, JJ.); Dunn v. Blumstein, 405 U.S., at 342—343, 92 S.Ct. 995, at 1003—1004, 31 L.Ed.2d 274; Memorial Hospital v. Maricopa County, 415 U.S., at 262—263, 94 S.Ct. at 1084—1085.
45
The Court proposes three defenses for the Iowa statute: first, the residency requirement merely delays receipt of the benefit in question—it does not deprive the applicant of the benefit altogether; second, since significant social consequences may follow from the conferral of a divorce, the State may legitimately regulate the divorce process; and third, the State has interests both in protecting itself from use as a 'divorce mill' and in protecting its judgments from possible collateral attack in other States. In my view, the first two defenses provide no significant support for the statute in question here. Only the third has any real force.
A.
46
With the first justification, the Court seeks to distinguish the Shapiro, Dunn, and Maricopa County cases. Yet the distinction the Court draws seems to me specious. Iowa's residency requirement, the Court says, merely forestalls access to the courts; applicants seeking welfare payments, medical aid, and the right to vote, on the other hand, suffer unrecoverable losses throughout the waiting period. This analysis, however, ignores the severity of the deprivation suffered by the divorce petitioner who is forced to wait a year for relief. See Stanley v. Illinois, 405 U.S. 645, 647, 92 S.Ct. 1208, 1210, 31 L.Ed.2d 551 (1972). The injury accompanying that delay is not directly measurable in money terms like the loss of welfare benefits, but it cannot reasonably be argued that when the year has elapsed, the petitioner is made whole. The year's wait prevents remarriage and locks both partners into what may be an intolerable, destructive relationship. Even applying the Court's argument on its own terms, I fail to see how the Maricopa County case can be distinguished. A potential patient may well need treatment for a single ailment. Under Arizona statutes he would have had to wait a year before he could be treated. Yet the majority's analysis would suggest that Mr. Evaro's claim for nonemergency medical aid is not cognizable because he would 'eventually qualify for the same sort of (service),' ante, at 406. The Court cannot mean that Mrs. Sosna has not suffered any injury by being foreclosed from seeking a divorce in Iowa for a year. It must instead mean that it does not regard that deprivation as being very severe.2
B
47
I find the majority's second argument no more persuasive. The Court forgoes reliance on the usual justifications for durational residency requirements—budgetary considerations and administrative convenience, see Shapiro, 394 U.S., at 627—638, 89 S.Ct., at 1327 1333; Maricopa County, 415 U.S., at 262—269, 94 S.Ct., at 1084 1088. Indeed, it would be hard to make a persuasive argument that either of these interests is significantly implicated in this case. In their place, the majority invokes a more amorphous justification—the magnitude of the interests affected and resolved by a divorce proceeding. Certainly the stakes in a divorce are weighty both for the individuals directly involved in the adjudication and for others immediately affected by it. The critical importance of the divorce process, however, weakens the argument for a long residency requirement rather than strengthens it. The impact of the divorce decree only underscores the necessity that the State's regulation be evenhanded.3
48
It is not enough to recite the State's traditionally exclusive responsibility for regulating family law matters; some tangible interference with the State's regulatory scheme must be shown. Yet in this case, I fail to see how any legitimate objective of Iowa's divorce regulations would be frustrated by granting equal access to new state residents.4 To draw on an analogy, the States have great interests in the local voting process and wide latitude in regulating that process. Yet one regulation that the States may not impose is an unduly long residency requirement. Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). To remark, as the Court does, that because of the consequences riding on a divorce decree 'Iowa may insist that one seeking to initiate such a proceeding have the modicum of attachment to the State required here' is not to make an argument, but merely to state the result.
C
49
The Court's third justification seems to me the only one that warrants close consideration. Iowa has a legitimate interest in protecting itself against invasion by those seeking quick divorces in a forum with relatively lax divorce laws, and it may have some interest in avoiding collateral attacks on its decree in other States.5 These interests, however, would adequately be protected by a simple requirement of domicile—physical presence plus intent to remain—which would remove the rigid one-year barrier while permitting the State to restrict the availability of its divorce process to citizens who are genuinely its own.6
50
The majority notes that in Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945), the Court held that for ex parte divorces one State's finding of domicile could, under limited circumstances, be challenged in the courts of another. From this, the majority concludes that since Iowa's findings of domicile might be subject to collateral attack elsewhere, it should be permitted to cushion its findings with a one-year residency requirement.
51
For several reasons, the year's waiting period seems to me neither necessary nor much of a cushion. First, the Williams opinion was not aimed at States seeking to avoid becoming divorce mills. Quite the opposite, it was rather plainly directed at States that had cultivated a 'quickie divorce' reputation by playing fast and loose with findings of domicile. See id., at 236 237, 65 S.Ct., at 1098—1099; id., at 241, 65 S.Ct., at 1100 (Murphy, J., concurring). If Iowa wishes to avoid becoming a haven for divorce seekers, it is inconceivable that its good-faith determinations of domicile would not meet the rather lenient full faith and credit standards set out in Williams.
52
A second problem with the majority's argument on this score is that Williams applies only to ex parte divorces. This Court has held that if both spouses were before the divorcing court, a foreign State cannot recognize a collateral challenge that would not be permissible in the divorcing State. Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed.2d 1429 (1948); Coe v. Coe, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451 (1948); Johnson v. Muelberger, 340 U.S. 581, 71 S.Ct. 474, 95 L.Ed. 552 (1951); Cook v. Cook, 342 U.S. 126, 72 S.Ct. 157, 96 L.Ed. 146 (1951). Therefore, the Iowa statute sweeps too broadly even as a defense to possible collateral attacks, since it imposes a one-year requirement whenever the respondent does not reside in the State, regardless of whether the proceeding is ex parte.7
53
Third, even a one-year period does not provide complete protection against collateral attack. It merely makes it somewhat less likely that a second State will be able to find 'cogent evidence' that Iowa's determination of domicile was incorrect. But if the Iowa court has erroneously determined the question of domicile, the year's residence will do nothing to preclude collateral attack under Williams.
54
Finally, in one sense the year's residency requirement may technically increase rather than reduce the exposure of Iowa's decrees to collateral attack. Iowa appears to be among the States that have interpreted their divorce residency requirements as being of jurisdictional import.8 Since a State's divorce decree is subject to collateral challenge in a foreign forum for any jurisdictional flaw that would void it in the State's own courts, New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133 (1947), the residency requirement exposes Iowa divorce proceedings to attack both for failure to prove domicile and for failure to prove one year's residence. If nothing else, this casts doubt on the majority's speculation that Iowa's residency requirement may have been intended as a statutory shield for its divorce decrees. In sum, concerns about the need for a long residency requirement to defray collateral attacks on state judgments seem more fanciful than real. If, as the majority assumes, Iowa is interested in assuring itself that its divorce petitioners are legitimately Iowa citizens, requiring petitioners to provide convincing evidence of bona fide domicile should be more than adequate to the task.9
III
55
I conclude that the course Iowa has chosen in restricting access to its divorce courts unduly interferes with the right to 'migrate, resettle, find a new job, and start a new life.' Shapiro v. Thompson, 394 U.S., at 629, 89 S.Ct., at 1328. I would reverse the judgment of the District Court and remand for entry of an order granting relief if the court finds that there is a continuing controversy in this case. See Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974); Johnson v. New York State Education Dept., 409 U.S. 75, 79, 93 S.Ct. 259, 261, 34 L.Ed.2d 290 n. 7 (1972) (Marshall, J., concurring).
1
Iowa Code § 598.6 (1973) provides:
'Except where the respondent is a resident of this state and is served by personal service, the petition for dissolution of marriage, in addition to setting forth the information required by section 598.5, must state that the petitioner has been for the last year a resident of the state, specifying the county in which the petitioner has resided, and the length of such residence therein after deducting all absences from the state; and that the maintenance of the residence has been in good faith and not for the purpose of obtaining a marriage dissolution only.'
Iowa Code § 598.9 (1973) requires dismissal of the action '(i)f the averments as to residence are not fully proved.'
2
In their answer to the complaint, appellees asserted that the court lacked jurisdiction over the State by virtue of the Eleventh Amendment, but thereafter abandoned this defense to the action. While the failure of the State to raise the defense of sovereign immunity in the District Court would not have barred Iowa from raising that issue in this Court, Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945), no such defense has been advanced in this Court. The failure of Iowa to raise the issue has likewise left us without any guidance from the parties' briefs as to the circumstances under which Iowa law permits waiver of the defense of sovereign immunity by attorneys representing the State. Our own examination of Iowa precedents discloses, however, that the Iowa Supreme Court has held that the State consents to suit and waives any defense of sovereign immunity by entering a voluntary appearance and defending a suit on the merits. McKeown v. Brown, 167 Iowa 489, 499, 149 N.W. 593, 597 (1914). The law of Iowa on the point therefore appears to be different from the law of Indiana treated in Ford, supra.
3
Our request that the parties address themselves to Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and related cases, indicated our concern as to whether either this Court or the District Court should reach the merits of the constitutional issue presented by the parties in light of appellant Sosna's failure to appeal the adverse ruling of the State District Court through the state appellate network. In response to our request, both parties urged that we reach the merits of appellant's constitutional attack on Iowa's durational residency requirement.
In this posture of the case, and in the absence of a disagreement between the parties, we have no occasion to consider whether any consequences adverse to appellant resulted from her first obtaining an adjudication of her claim on the merits in the Iowa state court and only then commencing this action in the United States District Court.
4
Since jurisdiction was predicated on 28 U.S.C. § 1343(3), this case presents no problem of aggregation of claims in an attempt to satisfy the requisite amount in controversy of 28 U.S.C. § 1331(a). Cf. Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973); Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969). Although the complaint did not so specify, the absence of a claim for monetary relief and the nature of the claim asserted disclose that a Rule 23(b)(2) class action was contemplated. Therefore, the problems associated with a Rule 23(b)(3) class action, which were considered by this Court last Term in Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974), are not present in this case.
5
The defendant state-court judge neither raised any claim of immunity as a defense to appellant's action, nor questioned the propriety of the appellant's effort to represent a statewide class against a judge like him who apparently sat in a single county or judicial district within the State.
6
The District Court was aware of the possibility of mootness, 360 F.Supp. 1182, 1183 n. 5 (ND Iowa 1973), and expressed the view that even the 'termination of plaintiff's deferral period . . . would not render this case moot since the cause before us is a class action and the court is confronted with the reasonable likelihood that the problem will occur to members of the class of which plaintiff is currently a member.'
7
Counsel for appellant disclosed at oral argument that appellant has in fact obtained a divorce in New York. Tr. of Oral Arg. 22.
8
The certification of a suit as a class action has important consequences for the unnamed members of the class. If the suit proceeds to judgment on the merits, it is contemplated that the decision will bind all persons who have been found at the time of certification to be members of the class. Rule 23(c) (3); Advisory Committee Note, 28 U.S.C.App., pp. 7765—7766, 39 F.R.D. 69, 105—106. Once the suit is certified as a class action, it may not be settled or dismissed without the approval of the court. Rule 23(e).
9
This view draws strength from the practical demands of time. A blanket rule under which a class action challenge to a short durational residency requirement would be dismissed upon the intervening mootness of the named representative's dispute would permit a significant class of federal claims to remain unredressed for want of a spokesman who could retain a personal adversary position throughout the course of the litigation. Such a consideration would not itself justify any relaxation of the provision of Art. III which limits our jurisdiction to 'cases and controversies,' but it is a factor supporting the result we reach if consistent with Art. III. For the reasons stated in the text, infra, we believe that our holding here does comport with both the language of Art. III and our prior decisions.
10
This has been the prevailing view in the Circuits. See, e.g., Cleaver v. Wilcox, 499 F.2d 940 (CA9 1974); Rivera v. Freeman, 469 F.2d 1159 (CA9 1972); Conover v. Montemuro, 477 F.2d 1073 (CA3 1972); Roberts v. Union Co., 487 F.2d 387 (CA6 1973); Shiffman v. Askew, 359 F.Supp. 1225 (MDFla. 1973), aff'd sub nom., Makres v. Askew, 500 F.2d 577 (CA5 1974); Moss v. Lane Co., Inc., 471 F.2d 853 (CA4 1973). Contra: Watkins v. Chicago Housing Authority, 406 F.2d 1234 (CA7 1969); cf. Norman v. Connecticut State Board of Parole, 458 F.2d 497 (CA2 1972).
11
There may be cases in which the controversy involving the named plaintiffs is such that it becomes moot as to them before the district court can reasonably be expected to rule on a certification motion. In such instances, whether the certification can be said to 'relate back' to the filing of the complaint may depend upon the circumstances of the particular case and especially the reality of the claim that otherwise the issue would evade review.
12
When this Court has entertained doubt about the continuing nature of a case or controversy, it has remanded the case to the lower court for consideration of the possibility of mootness. Indiana Employment Security Division v. Burney, 409 U.S. 540, 93 S.Ct. 883, 35 L.Ed.2d 62 (1973).
13
There are frequently cases in which it appears that the particular class a party seeks to represent does not have a sufficient homogeneity of interests to warrant certification. Hansberry v. Lee, 311 U.S. 32, 44, 61 S.Ct. 115, 85 L.Ed. 22 (1940); Phillips v. Klassen, 163 U.S.App.D.C. 360, 502 F.2d 362, cert. denied (1974), 419 U.S. 996, 95 S.Ct. 309, 42 L.Ed.2d 269 (1974). In this case, however, it is difficult to imagine why any person in the class appellant represents would have an interest in seeing Iowa Code § 598.6 (1973) upheld.
14
See generally Peters, Iowa Reform of Marriage Termination, 20 Drake L.Rev. 211 (1971).
15
Louisiana and Washington are the exceptions. La.Code Civ.Proc., Art. 10, subd. A(7) (Supp.1974); but see Art. 10, subd. B providing that 'if a spouse has established and maintained a residence in a parish of this state for a period of twelve months, there shall be a rebuttable presumption that he has a domicile in this state in the parish of such residence.' Wash.Laws 1973, 1st Ex.Sess., c. 157. Among the other 48 States, the durational residency requirements are of many varieties, with some applicable to all divorce actions, others only when the respondent is not domiciled in the State and still others applicable depending on where the grounds for divorce accrued. See the 50-state compilation issued by the National Legal Aid and Defender Association, Divorce, Annulment and Separation in the United States (1973).
16
See, e.g., Idaho Code § 32—701 (1963); Nev.Rev.Stat. § 125.020 (1973).
17
See, e.g., R.I.Gen.Laws Ann. § 15—5—12 (1970); Mass.Gen.Laws Ann., c. 208, §§ 4—5 (1958 and Supp.1974).
18
A majority of the States impose a one-year residency requirement of some kind. Divorce, Annulment and Separation in the United States, supra, n. 15.
19
Shapiro, 394 U.S., at 638 n. 21, 89 S.Ct., at 1333; Maricopa County, 415 U.S., at 258—259, 94 S.Ct. at 1082—1083.
20
When a divorce decree is not entered on the basis of ex parte proceedings, this Court held in Sherrer v. Sherrer, 334 U.S. 343, 351—352, 68 S.Ct. 1087, 1091, 92 L.Ed. 1429 (1948):
'(T)he requirements of full faith and credit bar a defendant from collaterally attacking a divorce decree on jurisdictional grounds in the courts of a sister State where there has been participation by the defendant in the divorce proceedings, where the defendant has been accorded full opportunity to contest the jurisdictional issues, and where the decree is not susceptible to such collateral attack in the courts of the State which rendered the decree.'
Our Brother MARSHALL argues in dissent that the Iowa durational residency requirement 'sweeps too broadly' since it is not limited to ex parte proceedings and could be narrowed by a waiver provision. Post, at 425. But Iowa's durational residency requirement cannot be tailored in this manner without disrupting settled principles of Iowa practice and pleading. Iowa's rules governing special appearances make it impossible for the state court to know, either at the time a petition for divorce is filed or when a motion to dismiss for want of jurisdiction is filed, whether or not a respondent will appear and participate in the divorce proceedings. Iowa Rules Civ.Proc. 66, 104. The fact that the state legislature might conceivably adopt a system of waivers and revise court rules governing special appearances does not make such detailed rewriting appropriate business for the federal judiciary.
21
Since the majority of States require residence for at least a year, see n. 18, supra, it is reasonable to assume that Iowa's one-year 'floor' makes its decrees less susceptible to successful collateral attack in other States. As the Court of Appeals for the Fifth Circuit observed in upholding a six-month durational residency requirement imposed by Florida, an objective test may impart to a State's divorce decrees 'a verity that tends to safeguard them against the suspicious eyes of other states' prosecutorial authorities, the suspicions of private counsel in other states, and the post-decree dissatisfactions of parties to the divorce who wish a second bite. Such a reputation for validity of divorce decrees is not, then, merely cosmetic.' Makres v. Askew, 500 F.2d 577, 579 (1974), aff'g, 359 F.Supp. 1225 (MD Fla.1973).
22
In addition to a showing of residence within the State for a year, Iowa Code § 598.6 (1973) requires any petition for dissolution to state 'that the maintenance of the residence has been in good faith and not for the purpose of obtaining a marriage dissolution only.' In dismissing appellant's petition in state court, Judge Keck observed that appellant had failed to allege good-faith residence. (Jurisdictional Statement App.B. 2).
1
The Court contends that its rationale is the prevailing view in the Circuits and lists five circuits in support and two opposing. Ante, at 401—402, n. 10. Of the five decisions cited in support, four are without weight or inapposite in the present context. Conover v. Montemuro, 477 F.2d 1073, 1081—1082 (CA3 1973), contains only dictum. Makres v. Askew, 500 F.2d 577 (CA5 1974), is only an affirmance of a District Court decision without discussion of mootness. Two other cases, Moss v. Lane Co., Inc., 471 F.2d 853 (CA4 1973), and Roberts v. Union Co., 487 F.2d 387 (CA6 1973), deal with claims of racial and sexual discrimination, respectively, in employment practices under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U.S.C. § 2000e et seq. In such cases, Congress has expressed an intention and provided that any person 'claiming to be aggrieved' could bring suit under Title VII to challenge discriminatory employment practices. 42 U.S.C. § 2000e—5; Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 209, 93 S.Ct. 364, 366, 34 L.Ed.2d 415 (1972). Since any discrimination in employment based upon sexual or racial characteristics aggrieves an employee or an applicant for employment having such characteristics by stigmatization and explicit or implicit application of a badge of inferiority, Congress gave such persons standing by statute to continue an attack upon such discrimination even though they fail to establish particular injury to themselves in being denied employment unlawfully. Cf. Trafficante, supra. Congress has expressed no similar intention as to the subject matter of the instant litigation, that is, to allow suits by "private attorneys general in vindicating a policy that Congress considered to be of the highest priority," 409 U.S., at 211, 93 S.Ct., at 367, nor are the circumstances present here analogous to a case of racial or sexual discrimination which inherently is class based. Hence, these cases provide no authority for the Court's expansive construction of Art. III's case-or-controversy requirement.
2
See 7A C. Wright & A. Miller, Federal Practice and Procedure § 1785, pp. 137—138 (1972); 3B J. Moore, Federal Practice 23.50, p. 23—1103 (1974).
3
See 7A Wright & Miller, supra, n. 2, §§ 1793, 1794; 3B Moore, supra, n. 2, 23.72—23.74.
4
The Court apparently also does not view certification as the key to its holding since it mentions in dicta that some class actions will not be moot even though the named representatives' claims become moot prior to certification. If the district court does not have a reasonable amount of time within which to decide the certification question prior to the mooting of the named parties' controversies, the Court says, '(i)n such instances, whether the certification can be said to 'relate back' to the filing of the complaint may depend upon the circumstances of the particular case and especially the reality of the claim that otherwise the issue would evade review.' Ante, at 402 n. 11. If certification is not the factor which saves the case from mootness, it appears that the Court is satisfied that the case is a live controversy as long as an issue would otherwise not be reviewable here. The Court does not say whether the same flexible standard of mootness applies to cases appealable to the courts of appeals.
5
The general rule has been that the '(q)uality of representation embraces both the competence of the legal counsel of the representatives and the statute and interest of the named parties themselves.' 7 Wright & Miller, supra, n. 2, § 1766, pp. 632—633 (footnotes omitted). The decisions in the past have rested on several considerations. See i.d., at 633—635.
1
Memorial Hospital v. Maricopa County, 415 U.S., at 256 259, 94 S.Ct. at 1081—1083; see also Shapiro v. Thompson, 394 U.S., at 638 n. 21, 89 S.Ct., at 1333.
2
The majority also relies on its 'mere delay' distinction to dispose of Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), see ante, at 410. Yet even though the majority in Boddie relied on due process rather than equal protection, I am fully convinced that if the Connecticut statute in question in that case had required indigents to wait a year for a divorce, the statute would still have been constitutionally infirm, see 401 U.S., at 383—386, 91 S.Ct., at 788—790 (Douglas, J., concurring in result), a point the Court implicitly rejects today.
3
The majority identifies marital status, property rights, and custody and support arrangements as the important concerns commonly resolved by divorce proceedings. But by declining to exercise divorce jurisdiction over its new citizens, Iowa does not avoid affecting these weighty social concerns; instead, it freezes them in an unsatisfactory state that it would not require its long-time residents to endure.
4
A durational requirement such as Iowa's 90-day conciliation period would not, of course, be subject to an equal protection challenge, as it is required uniformly of all divorce petitioners.
5
Appellees do not rely on these factors to support the Iowa statute. In their brief appellees argue that the legislature's determination to impose a one-year residency requirement was reasonable 'in the light of the interest of the State of Iowa in a dissolution proceeding.' Brief for Appellees 8. The full faith and credit argument is mentioned only in the middle of a long quotation from another court's opinion, id., at 9. This is hardly sufficient to meet the requirement of a 'clear showing that the burden imposed is necessary to protect a compelling and substantial governmental interests.' Oregon v. Mitchell, 400 U.S. 112, 238, 91 S.Ct. 260, 321, 27 L.Ed.2d 272 (1970) (opinion of Brennan, White, and Marshall, JJ.); Sherbert v. Verner, 374 U.S. 398, 406—409, 83 S.Ct. 1790, 1795—1797, 10 L.Ed.2d 965 (1963).
6
The availability of a less restrictive alternative such as a domicile requirement weighs heavily in testing a challenged state regulation against the 'compelling interest' standard. See Shapiro v. Thompson, 394 U.S., at 638, 89 S.Ct., at 1333; Dunn v. Blumstein, 405 U.S. 330, 342, 350—352, 92 S.Ct. 995, 1003, 1007 1008, 31 L.Ed.2d 274 (1972); Memorial Hospital v. Maricopa County, 415 U.S., at 267, 94 S.Ct., at 1086; Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960). Since the Iowa courts have in effect interpreted the residency statute to require proof of domicile as well as one year's residence, see Korsrud v. Korsrud, 242 Iowa 178, 45 N.W.2d 848 (1951); Julson v. Julson, 255 Iowa 301, 122 N.W.2d 329 (1963), a shift to a 'pure' domicile test would impose no new burden on the State's factfinding process.
7
This problem could be cured in large part if the State waived its year's residency requirement whenever the respondent agreed to consent to the court's jurisdiction.
8
See Hinds v. Hinds, 1 Iowa 36 (1855); Williamson v. Williamson, 179 Iowa 489, 495, 161 N.W. 482, 485 (1917); Korsrud v. Korsrud, supra; Schaefer v. Schaefer, 245 Iowa 1343, 1350, 66 N.W.2d 428, 433 (1954); cf. White v. White, 138 Conn. 1, 81 A.2d 450 (1951); Wyman v. Wyman, 297 Minn. 465, 212 N.W.2d 368 (1973); Camp v. Camp, 21 Misc.2d 908, 189 N.Y.S.2d 561 (1959) (construing Florida law). While the Williams case establishes that collateral attack can always be mounted against the divorcing State's finding of domicile, other States have provided that failure to meet the durational residency requirement is not jurisdictional and thus does not provide an independent basis for collateral attack, see e.g., Schreiner v. Schreiner, 502 S.W.2d 840 (Tex.Civ.App.1973); Hammond v. Hammond, 45 Wash.2d 855, 278 P.2d 387 (1954) (construing Idaho law).
9
The majority argues that since most States require a year's residence for divorce, Iowa gains refuge from the risk of collateral attack in the understanding solicitude of States with similar laws. Of course, absent unusual circumstances, a judgment by this Court striking down the Iowa statute would similarly affect the other States with one-and two-year residency requirements. For the same reason, the risk of subjecting Iowa to an invasion of divorce seekers seems minimal. If long residency requirements are held unconstitutional, Iowa will not stand conspicuously alone without a residency requirement 'defense.' Moreover, its 90-day conciliation period, required of all divorce petitioners in the State, would still serve to discourage peripatetic divorce seekers who are looking for the quickest possible adjudication.
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